10-010824RX Henry Ross vs. Department Of Environmental Protection Status: Closed DOAH Final Order on Monday, January 10, 2011.

Summary: The rule challenge was dismissed because DOAH has no authority to determine the constitutionality of a rule. Petitioner can raise the issue if he appeals the final order of the Department in the related permit case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY ROSS , )

)

Petitioner , )

)

vs. ) Case No. 10 - 10824RX

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Respondent . )

)

SUMMARY FINAL ORDER

Pet itioner filed a Challenge to Rule, in which he states

that, pursuant to section 120.56, Florida Statutes (2010), he

seeks a determination of the invalidity of Florida

Administrative Code Rule 62 - 4.244. The Ðsingle issueÑ raised by

Petitioner is that the r ule Ðviolates the Unite d States

Constitution and applicable provisions of the Florida

Constitution.Ñ The Department of Environmental Protection

(Department) filed a Motion for Summary Final Order Regarding

the Invalidity of Rule 62 - 4.244, F.A.C., contendi ng that there

are no genuine issues as to any material fact and the Division

of Administrative Hearings (DOAH) has no authority to determine

the constitutionality of a rule. Petitioner filed a response in

opposition to the motion.

FINDINGS OF FACT

1. Petitioner d id not identify a particular part of Rule

62 - 4.244 that he claims is unconstitutional . Rule 62 - 4.244 is a

lengthy rule and is not set forth here in its entirety. The

gist of the rule is explained in subsection (1) (a) :

The Department may allow the water quality

adjacent to a point of discharge to be

degraded to the extent that only the minimum

conditions described in subsection 62 -

302.500(1), F.A.C., apply within a limited,

defined region known as the mixing zone.

Under the circumstances define d elsewhere in

this section, a mixing zone may be allowed

to provide an opportunity for mixing and

thus to reduce the costs of treatment.

However, no mixing zone or combination of

mixing zones shall be allowed to

significantly impair any of the designated

uses of the receiving body of water.

CONCLUSIONS OF LAW

2 . Petitioner named the City of Tarpon Springs as a

Respondent in his rule challenge petition, along with the

Department . However, the City is not a party unless it

petitions to intervene, wh ich it has not done.

3. Petitioner failed to allege a genuine issue as to any

material fact. Section 120.57(1)(h), Florida Statutes (2010) ,

provides:

Any party to a proceeding in which an

administrative law judge of the Division of

Administrative Hearin gs has final order

authority may move for a summary final order

when there is no genuine issue as to any

material fact. A summary final order shall

be rendered if the administrative law judge

determines from the pleadings, depositions,

answers to interrog atories, and admissions

on file, together with affidavits, if any,

that no genuine issue as to any material

fact exists and that the moving party is

entitled as a matter of law to the entry of

a final order. A summary final order shall

consist of findings of fact, if any,

conclusions of law, a disposition or

penalty, if applicable, and any other

information required by law to be contained

in the final order.

4. None of the grounds for invalidating a rule that are

set forth in s ection 120.52(8), w as invo ked by Petitioner.

Instead, Petitioner claims that the rule is unconstitutional

under the United States Constitution and the Florida

Constitution. DOAH has no authority to hear or adjudicate

issues of federal law, including whether there has been a

viola tion of the United States Constitution. DOAH is also

without authority to determine the constitutionality of an

existing rule under the Florida Constitution . See DepÓt of H RS

v. Fl a. Med . Ctr, NME Hospitals, Inc. , 578 So. 2d 351, 355 (Fla.

1st DCA 1991).

5 . A party may challenge the constitutionality of a rule

for the first time on appeal from a final order in a proceeding

challenging agency action. See Key Haven Associated Enterprises,

Inc. v. Bd. of Trustees of the Internal Improvement Trust Fund,

427 So. 2d 153 (Fla. 1982 ) ; Rice v. DepÓt of HR S , 386 So. 2d 844

(Fla. 1st DCA 1980 ) .

[W]e consider it entirely proper for a

district court to pass on the

constitutionality o f a statute or rule when

that is necessary in reviewing agency

action, though there has been no agency

decision on the constitutional question nor

could there have been.

Rice at 848.

6. Petitioner is a party in a proceeding challenging

agency action -- the industrial wastewater facility permit that

is the subject of DOAH Case 10 - 3351 -- and it was in that case

that Rule 62 - 4.244 was applied by the Department to justify the

proposed agency action which Petitioner challenged . The

Recommended Order was iss ued in DOAH Case 10 - 3351 , but a final

order has not yet been issued by the Department. Petitioner 's

claim that Rule 62 - 4 .244 is unconstitutional is an issue that

Petitioner may raise if he takes an appeal of the final order in

DOAH Case 10 - 3351 . It is im proper to raise the issue as

Petitioner did in this case.

DISPOSITION

Based on the record and the Conclusions of Law stated

above, it is

ORDERED that the rule challenge is DISMISSED.

DONE AND ORDERED this 10th day of January , 2011 , in

Tallahassee, Leo n County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www .doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of January , 2011 .

COPIES FURNISHED :

Henry Ross

1005 South Florida Avenue

Tarpon Springs, Florida 34689

Tom Beason, Esquire

Department of Environmental Pro tection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Stacey D. Cowley, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

Scott Boyd, Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

Liz Cloud, Program Administrator

Florida Administrative Code

Department of State

R. A. Gray Buildi ng, Suite 101

Tallahassee, Florida 32399

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceeding are governed by the Florid a Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, F irst District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.