13-003341RP Jacksonville Beekeeper&Apos;S Association, A Florida Nonprofit Corporation vs. Department Of Agriculture And Consumer Services Status: Closed DOAH Final Order on Monday, September 23, 2013.

Summary: Petition dismissed as an untimely challenge to a proposed rule, and a premature challenge to draft changes posted on Department of Agriculture and Consumer Services' website, but not yet published in the Florida Administrative Register.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACKSONVILLE BEEKEEPER ' S

ASSOCIATION, A FLORIDA NONPROFIT

CORPORATION ,

Petitioner ,

vs. Case No . 13 - 3341RP

DEPARTMENT OF AGRICULTURE AND

CONSUMER SERVICES ,

Respondent .

/

FINAL ORDER OF DISMISSAL

This case is before the undersigned on the Motion of

Respondent, Department of Agriculture and Consumer Services, to

Dismiss Petition for Administrative Determination of Invalidity

of Proposed Rule (Motion), filed on September 12, 2013. The

Motion was heard in a telephonic motion hearing conducted on

September 17, 2013, by Elizabeth W. McArthur, Administrative Law

Judge , Division of Administrative Hearings .

APPEARANCES

For Petitioner: Marilyn S. Young, Esquire

Mark Young, P.A.

12086 Ft. Caroline Road

Jacksonville, Florida 32225

For Respondent: Carol Ann Forthman, Esquire

Steven Hall, Esquire

Department of Ag riculture

and Consumer Services

407 South Calhoun Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

At issue is whether the Petition to Determine Invalidity of

Proposed Rule must be di smissed as an untimely challenge to

Respondent ' s proposed rule, and as a premature challenge to a

draft notice of change that was posted on Respondent ' s website,

but not published in the Florida Administrative Register.

PRELIMINARY STATEMENT

On September 5 , 2013, Petitioner filed a Petition for

Administrative Determination of Invalidity of Proposed Rule

(Petition) with the Division of Administrative Hearings. The

Petition sought to challenge proposed rule 5B - 54.0105, and draft

changes to the proposed rule that were in a notice posted on

Respondent ' s website. Upon assignment, the undersigned set the

matter for final hearing on October 3, 2013, and issued an Order

establishing expedited pre - hearing procedures.

Respondent ' s Motion, filed on September 12, 2013 , asserted

that the Petition should be dismissed. The Motion asserted that

to the extent the Petition sought to challenge the proposed rule

as originally noticed, the Petition was untimely; and to the

extent the Petition sought to challenge the draft c han ges posted

on Respondent ' s website, the Petition was premature. Respondent

requested an expedited hearing on the Motion to minimize the need

to devote resources to discovery and hearing preparation that

could prove to be unnecessary. With the cooperation of the

parties, a telephonic motion hearing was scheduled and held on

September 17, 2013. Petitioner filed a response in opposition to

the Motion on September 16, 2013. The Motion, the response in

opposition, and argument of counsel have all been carefu lly

considered in preparing this Final Order of Dismissal .

FINDING S OF FACT

Accepting as true the allegations in the Petition (including

its attachments), and considering those allegations in the light

most favorable to Petitioner, the following relevant f acts are

found and are not disputed :

1. On June 27, 2013, Respondent published a Notice of

Proposed Rule in the Florida Administrative Register, proposing

the adoption of Florida Administrative Code Rule 5B - 54.0105 (the

Proposed Rule). A document referre d to as a " Beekeeper

Compliance Agreement " was incorporated by reference in the

Proposed Rule.

2. Petitioner timely requested a public hearing on the

Proposed Rule, including the document incorporated by reference.

3. On July 18, 2013, Respondent publish ed notice in the

Florida Administrative Register that it would hold a public

hearing on the Proposed Rule on July 30, 2013.

4. The public hearing record was held open until August 9,

2013, for the public to comment and submit proposed revisions to

the Pro posed Rule.

5. On August 16, 2013, Respondent posted on its website a

Notice of Change document, bearing a " DRAFT " watermark diagonally

across each page (Draft Notice of Change). The Draft Notice of

Change made changes to the Proposed Rule, including to the

Beekeeper Compliance Agreement incorporated by reference.

6. No Notice of Change to the Proposed Rule has been

published in the Florida Administrative Register.

7. On September 5, 2013, Petitioner filed its Petition.

CONCLUSIONS OF LAW

8. The Divisi on of Administrative Hearings has jurisdiction

over the parties and the subject matter of this proceeding.

§ 120.56, Fla. Stat. (2013). 1/

9. The Petition seeks to challenge the Proposed Rule and

changes to the Proposed Rule contained in the Draft Notice o f

Change. Respondent ' s Motion raises the threshold question of

timeliness, asserting that the Petition is untimely as to former

and premature as to the latter.

10. A petition challenging proposed rules must be filed

within the time periods set forth in s ection 120.56(2)(a):

A substantially affected person may seek an

administrative determination of the

invalidity of a proposed rule by filing a

petition seeking such a determination with

the division within 21 days after the date of

publication of the notic e required by s.

120.54(3)(a); within 10 days after the final

public hearing is held on the proposed rule

as provided by s. 120.54(3)(e)2.; within 20

days after the statement of estimated

regulatory costs or revised statement of

estimated regulatory costs, if applicable,

has been prepared and made available as

provided in s. 120.541(1)(d); or within 20

days after the date of publication of the

notice required by s. 120.54(3)(d).

11. Th e first time period is a 21 - day window that begins on

the date of publ ication of the notice of the proposed rules ,

which is the notice req uired by section 120.54(3)(a) . The

Petition was not filed within 21 days after the Notice of

Proposed Rule was published in the Florida Administrative

Register.

12. As to the second tim e period, the Petition was not

filed within 10 days after the conclusion of the only public

hearing held on the Proposed Rule.

13. The parties do not contend that the third time period

offered by section 120.56(2)(a) is applicable. Instead, it

appears t hat no Statement of Estimated Regulatory Costs was

prepared in connection with the Proposed Rule.

14. To defend the timeliness of the Petition, Petitioner

relies on the fourth period offered by section 120.56(2)(a).

Petitioner contends that its Petition should be deemed timely

because it was filed within 20 days after the Draft Notice of

Change was published by Respondent on its website.

15. However, the 20 - day window offered by this fourth time

period is only triggered by, and begins to run from, " the date of

publication of the notice required by s. 120.54(3)(d). "

16. In pertinent part, section 120.54(3)(d) provides:

Any change, other than a technical change

that does not affect the substance of the

rule, must be supported by the record of

public hea rings held on the rule, must be in

response to written material submitted to the

agency within 21 days after the date of

publication of the notice of intended agency

action or submitted to the agency between the

date of publication of the notice and the en d

of the final public hearing, or must be in

response to a proposed objection by the

committee. In addition, when any change is

made in a proposed rule, other than a

technical change, the adopting agency shall

provide a copy of a notice of change by

certi fied mail or actual delivery to any

person who requests it in writing no later

than 21 days after the notice required in

paragraph (a). The agency shall file the

notice of change with the committee, along

with the reasons for the change, and provide

the n otice of change to persons requesting

it, at least 21 days prior to filing the rule

for adoption. The notice of change shall be

published in the Florida Administrative

Register at least 21 days prior to filing the

rule for adoption . . . . (emphasis adde d).

17. The emphasized language is the only provision in

section 120.54(3)(d) that requires publication of the notice .

Thus, the last 20 - day window in section 120.56(2)(a) can only be

triggered by publication of a notice of change in the Florida

Admini strative Register.

18. Respondent ' s posting of a Draft Notice of Change on its

website has no legal effect insofar as the time periods for

challenging proposed rules in section 120.56(2)(a) are c oncerned .

The website posting of a Draft Notice of Change was not

" publication of the notice required by s. 120.54(3)(d). "

§ 120.56(2)(a).

19. Accordingly, Respondent is correct that the Petition is

premature to the extent that it purports to challenge the Draft

Notice of Change. If Respondent proceeds to pub lish a notice of

change to the Proposed Rule in the Florida Administrative

Register, that publication date will trigger the final 20 - day

window in section 120.56(2)(a).

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED tha t the Petition for Administrative

Determination of Invalidity of Proposed Rule is DISMISSED.

DONE AND ORDERED this 23rd day of September , 2013 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

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 23 rd day of September , 2013 .

ENDNOTE

1/ A ll references to the Florida Statutes are to the 2013

codification.

COPIES FURNISHED:

Marilyn S. Young, Esquire

Mark Young, P.A.

12086 Ft. Caroline Road

Jacksonville, Florida 32225

Steven Lamar Hall, Esquire

Department of Agriculture

and Consumer Services

Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399

Carol Ann Forthman, Esquire

Department of Agriculture

and Consumer Services

407 South Calhoun Street

Tallahassee, Florida 32399

Liz Cloud , Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallah assee, Florida 32399 - 1400

(eServed)

Lorena Holley, General Counsel

Department of Agriculture

and Consumer Services

407 South Calhoun Street

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected b y this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative ap peal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.