14-005036RX Biscayne Bay Pilots, Inc.; Port Everglades Pilots, Inc., D/B/A Port Everglades Pilots Association; And The Florida State Pilots&Apos; Association, Inc., D/B/A Florida Harbor Pilots Association vs. Board Of Pilot Commissioners, Pilotage Rate Review Committee And Department Of Business And Professional Regulation
 Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Wednesday, May 27, 2015.


View Dockets  
Summary: Rule 61G14-22.012 constitutes an invalid exercise of legislative authority within the meaning of section 120.52(8)(b), (c), (e), and the flush left provision.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8BISCAYNE BAY PILOTS, INC.; PORT

13EVERGLADES PILOTS, INC., d/b/a PORT

18EVERGLADES PILOTS ASSOCIATION; AND

22THE FLORIDA STATE PILOTS'

26ASSOCIATION, INC., d/b/a FLORIDA

30HARBOR PILOTS ASSOCIATION,

33Petitioners,

34vs. Case No. 14 - 5036RX

40BOARD OF PILOT COMMISSIONERS,

44PILOTAGE RATE REVIEW COMMITTEE , AND

49DEPARTMENT OF BUSINESS AND

53PROFESSIONAL REGULATION,

55Respondents

56and

57FLORIDA - CARIBBEAN CRUISE

61ASSOCIATION,

62Intervenor .

64_______________________________/

65FINAL ORDER

67The parties to this rule challenge proceeding agreed that

76the issues to be determined are legal matters and stipulated

86that a formal administrative hearing was not required. Thus, no

96formal hearing was held in this matter. On February 9 , 2015,

107proposed final orders were submitted by the parties, for

116consideration by June C. McKinney, a designated Administrative

124Law Judge of the Division of Administrative Hearings (ÐDOAHÑ) .

134APPEARANCES

135For Petitioner s : Donna E. Blanton

142Radey Law Firm , P.A.

146301 South Bronough, Suite 200

151Tallahassee, Florida 32301

154( Counsel for Biscayne Bay Pilots, Inc. )

162Robert Peltz

164The Peltz Law Firm

16810220 Southwest 141st Street

172Miami, Florida 33176

175( Couns el for Biscayne Bay Pilots, Inc. )

184George N. Meros, Jr.

188Gray Robinson, P.A.

191600 South Bronough Street, Suite 600

197Post Office Box 11189

201Tallahassee, Florida 32302 - 3189

206( Counsel for Port Everglades Pilots, Inc.,

213d/b/a Port Everglades PilotsÓ Association )

219Warren H. Husband

222Metz, Husband & Daughton , P.A.

227215 South Monroe Street, Suite 505

233Tallahassee, Florida 32301

236( Counse l for The Florida State PilotsÓ

244Association, Inc., d /b/a Florida Harbor

250Pilots Association )

253For Respondent s: Marlene K. Stern

259Clark Jenn ings

262Michael Flury

264Assistant Attorneys General

267Office of the Attorney General

272PL - 01, The Capitol

277Tallahassee, Florida 32399 - 1050

282For Intervenor: Thomas Panza

286Gregory McDermott

288Panza, Mauer & Maynard , P.A.

2933600 North Federal Highway , 3rd Floor

299Ft. Lauderdale, Florida 33308

303STATEMENT OF THE ISSUE

307The issue is whether Florida Administrative Code Rule

31561G14 - 22.012 is an invalid exercise of legislatively delegated

325authority in violation of section 120.52(8), Florida Statutes

333(2014) .

335PRELIMINARY STATEMENT

337On October 23, 2014, Petitioners Biscayne Bay Pilots, Inc.

346(ÐBBP Ñ ); Port Everglades Pilots, Inc., d/b/a Port Everglades

356Pilots Association (ÐPEPAÑ); and the Florida State PilotsÓ

364Association, Inc., d/b/a Florida Harbor Pilots Associat ion

372(ÐFHPAÑ) (collectiv ely ÐP ilotsÑ or ÐPetitionersÑ) filed a

381Petition to Determine the Invalidity of Existing Rule 61G14 -

39122.012, Florida Administrative Code. A final administrative

398hearing was scheduled for November 18, 2014.

405On October 31, 2014, the Pe titioners filed an Unopposed

415Motion to Cancel Hearing and Place Case in Abeyance, which was

426granted on November 5, 2014. Subsequent motions filed by

435Petitioners on November 13, 2014, and December 18, 2014, to

445remove the case from abeyance were denied on N ovember 18, 2014,

457and January 6, 2015, respectively. On January 23, 2015,

466Petitioners filed a Status Report a nd Unopposed Request that

476Case b e Removed from Abeyance. That pleading also advised the

487Administrative Law Judge (ÐALJ Ñ) that because all issues in the

498case are legal issues, no hearing would be necessary and that a

510decision could be made based on th e submission of proposed f inal

523o rders. That motion was granted on January 26, 2015.

533The Florida - Caribbean Cruise Associat ion (ÐFCCAÑ or

542ÐIntervenor Ñ ) filed a Motion for Leave to Intervene on

553November 3, 2014. Petitioners filed a response to FCCAÓs motion

563on November 5, 2014. FCCAÓs Motion for Leave to I ntervene was

575renewed on November 14, 2014, De cember 24, 2014, and on

586January 30, 2015. FCCAÓs motion was granted on February 2,

5962015.

597On February 3, 2015, the parties filed a Stipulated

606Preliminary Statement and Facts , which contains a stipulation

614regarding agreed - upon facts that, where relevant, have been

624incorporated into the Findings of Fact below . The parties filed

635Joint Exhibits 1 through 8.

640The parties were given until February 9, 2015, to file

650their proposed final orders. All submissions were timely filed

659and have been considered in the preparation of this Final Order.

670FINDINGS OF FACT

6731. Petitioner BBP is an association of harbor pilots that

683performs the pilotage services at PortMiami. BBP consists of

692pilots licensed by the State of Florida in accordance with

702chapter 310, Florida Statutes. Petitioner PEPA is an

710association of harbor pilots that performs the pilotage services

719at Port Everglades. PEPA consists of pilots licensed by the

729State of Florida in accordance with chapter 310. FHPA is a

740statewide organization representing the interests of FloridaÓs

747approximately 100 state - licensed harbor pilots, the membership

756of which is comprised of the eleven local pilot associations

766that serve each of FloridaÓs 14 deep - water p orts. BBP and PEPA

780are members of FHPA.

7842. Chapter 310 governs pilots, piloting, and pilotage in

793the waters, harbors, and ports of Florida. Section 310.141 ,

802Florida Statutes , requires that, except in certain narrow

810circumstances, all vessels shall have a licensed state pilot or

820deputy pilot on board to direct the movements of the vessel when

832entering or leaving ports of the state or when underway on the

844navigable waters of the stateÓs bays, rivers, harbors, and

853ports.

8543. Section 310.011 creates the 10 - member Board of Pilot

865Commissioners (Ð BOPC Ñ or ÐBoardÑ) ; each member is appointed by

876the Governor Ðto perform such duties and possess and exercise

886such powers relative to the pr otection of the waters, harbors,

897and ports of this state as are prescribed and conferred on it in

910this chapter.Ñ In addition to other responsibilities, the Board

919determines the number of pilots in each port (section 310.061)

929and disciplines licensed pilot s when appropriate (section

937310.101). Although the BOPC has numerous statutory

944responsibilities, setting the rates of pilotage in each port is

954not one of them .

9594. Florida Administrative Code R ule 61G14 - 22.012

968(Ðchallenged ruleÑ or ÐruleÑ) is entitled ÐDetermination of

976Disputed Issues of Material Fact; Formal or Informal Hearings.Ñ

9855. R ule 61G14 - 22.012 cites section 310.151(1)(c) as

995specific authority.

9976. The challenged rule lists as ÐLaw I mplementedÑ section s

1008310.151 and 120.57.

10117. The former Pi lotage Rate Review Board originally

1020adopted the rule in 1995. When the Legislature amended chapter

1030310 in 2010, the former Pilotage Rate Review BoardÓs name was

1041changed to the Pilotage Rate Review Committee ( ÐPRRCÑ or

1051ÐCommitteeÑ) . The Committee consists of seven members, all of

1061whom are also members of the BOPC. The PRRC is responsible for

1073setting rates of pilotage in each port.

10808. On November 5, 2014, the BOPC/PRRC published a notice

1090in the Florida Administrative Register announcing a teleph one

1099conference call meeting for consideration of ÐRate Review

1107Committee Rules.Ñ PRRC members voted at tha t meeting to repeal

1118rule 61G14 - 22.012, but determined they did not have enough

1129information to know if a Statement of Estimated Regulatory Costs

1139was re quired.

11429. On December 11, 2014, the BOPC/PRRC published a second

1152notice in the Florida Administrative Register announcing a

1160telephone conference call meeting for consideration of ÐRate

1168Review Committee Rules.Ñ At that meeting, the PRRC voted to

1178reconsider its original vote to repeal rule 61G14 - 22.012, but

1189because the issue of potential reconsideration had not been

1198properly noticed, no official vote on reconsideration was taken.

120710. On January 7, 2015, the BOPC/PRRC published a notice

1217in the Florida Ad ministrative Register announcing a meeting on

1227January 22, 2015, and January 23, 2015. Amo ng the subjects

1238noticed for consideration was ÐReconsideration of Repeal of Rule

124761G14 - 22.012, F.A.C. Ñ This matter was considered by the PRRC on

1260January 23, 2015. B y a 5 - 2 vote, the Committee voted against

1274repealing rule 61G14 - 22.012.

127911. FCCA is a trade association representing cruise lines

1288that are subject to pilotage fees pursuant to chapter 310,

1298Florida Statutes. FCCA has filed petitions to reduce the rates

1308of pilotage in both PortMiami and in Port Everglades.

1317CONCLUSIONS OF LAW

132012. DOAH has jurisdiction over the parties to and subject

1330matter of this proceeding pursuant to section s 120.56(1) a nd

1341(3), Florida Statutes (2014) .

134613. Petitioners are substantially affected by the

1353challenged rule and have associational standing to challenge the

1362rule.

136314. Intervenors also have standing to participate in this

1372matter.

137315. Petitioners have Ðthe burden of proving by a

1382preponderance of the evidence that the existing rule is an

1392invalid exercise of delegated legislative authority as to the

1401objections raised.Ñ § 120.56(3)(a), Fla. Stat. The standard of

1410review is de novo. § 120.56(1)(e), Fla. Stat.

141816. Section 120.52 (17) defines Ðrulemaking authorityÑ as

1426Ðstatutory language that explicitly authorizes or requires an

1434agency to adopt, develop, establish or otherwise create any

1443statement coming with in the definition of the term Òrule . Ó Ñ

145617. The challenged rule states in pertinent part:

1464Since the determination of the actual rate

1471of pilotage to be imposed at any port is a

1481quasi - legislative act, the resolution of any

1489disputed issue of material fact by a hearing

1497officer assigned by the Division o f

1504Administrative Hearings shall not result in

1510a recommendation from the hearing officer as

1517to the appropriate rate to be imposed at any

1526port area in question. The hearing

1532officerÓs recommendation shall only extend

1537to resolving disputed issues of material

1543fact which result from a partyÓs disputing

1550the underlying facts upon which the Board

1557has suggested intended rates for the port

1564area in question. ( See Rule 61G1 4 - 22.010,

1574F.A.C.).

157518. FCCAÓs assertion that PetitionersÓ rule challenge is

1583absurd because for 20 years the rule has been relied on at

1595various DOAH hearings and other review proceedings is rejected.

1604Petitioners have the right to challenge the rule Ðat a ny time

1616during the existence of the ruleÑ according to the plain

1626language of section 120.56(3)(a).

163019. PetitionersÓ rule challenge is based on the amendments

1639to the Florida Administrative Procedure Act (ÐAPAÑ) in 1999 and

1649subsequent case law. Petitioners contend that the changes have

1658now rendered rule 61G14 - 22.012 an invalid exercise of delegated

1669legislative authority . Pilots assert that the challenged rule

1678violates the requirements of sections 120.52(8)(b), (c), (e),

1686and the flush left provis ion, specifically the language stating

1696that Ðan agency may adopt only rules that implement or interpret

1707the specific powers and duties granted by the enabling statute.Ñ

171720. A n Ðinvalid exercise of delegated legislative

1725authorityÑ is an Ðaction that goes beyond the powers, functions,

1735and duties delegated by the Legislature.Ñ § 120.52 (8), Fla.

1745Stat. A rule is an Ðinvalid exercise of delegated legislative

1755authorityÑ if any one of the following standards relevant to

1765this case applies:

1768(b) The agency has exceeded its grant of

1776rulemaking authority, citation to which is

1782required by s. 120.54(3)(a)1.;

1786(c) The rule enlarges, modifies, or

1792contravenes the specific provisions of law

1798implemented, citation to which is required

1804by s. 120.54(3)(a)1.;

1807* * *

1810(e) The rule is arbitrary or capricious. A

1818rule is arbitrary if it is not supported by

1827logic or the necessary facts; a rule is

1835capricious if it is adopted without thought

1842or reason or is irrational;

184721. Furthermore, section 120.52(8) also contains what is

1855referred to as the Ðflush left Ñ provision, an unnumbered

1865paragraph that was added to the APA in 1996, and was revised in

18781999 to restrict the scope of agency rule making authority. The

1889paragraph states in full :

1894A grant of rulemaking authority is necessary

1901but not sufficient to allow an agency to

1909adopt a rule; a specific law to be

1917implemented is also required. An agency may

1924adopt only rules that implement or interpret

1931the specific powers and duties granted by

1938the enabling statute. No agency shall have

1945authority to adopt a rule only because it is

1954reasonably related to the purpose of the

1961enabling legislation and is not arbitrary

1967and capricious or is within the agencyÓs

1974class of powers and duties, nor shall an

1982agenc y have the authority to implement

1989statutory provisions setting forth general

1994legislative intent or policy. Statutory

1999language granting rulemaking authority or

2004generally describing the powers and

2009functions of an agency shall be construed to

2017extend no furth er than implementing or

2024interpreting the specific powers and duti es

2031conferred by the enabling statute.

2036Whether the Department Has Exceeded Its Authority

204322 . Petitioners maintain correctly the challenged rule is

2052invalid and exceeds its grant of rulemaking authority because it

2062prohibits an ALJ from performing duties required under section

2071120.57(1)(k) . Petitioners advance that nothing in the laws

2080implemented or any other statute provides an exception for ALJÓs

2090to perform their duties other th an required under section

2100120.57(1)(k) , and section 310.151(4)(a) plainly states that if a

2109petitioner requesting a hearing raises a disputed issue of

2118material fact, the hearing will be conducted by an ALJ at DOAH

2130Ðpursuant to [sections] 120.569 and 120.57( 1).Ñ

21372 3 . Respondent s counter that the rule has specific

2148authority because fixing rates is a legislative function.

2156Respondent s claim in their Proposed Final Order that the

2166Legislature delegated rate - fixing authority to the PRRC in

2176section 301.151(6) (Ð[t]he committee shall fix rates of

2184pilotageÑ) and ALJs are prohibited from either substitut ing

2193judgment for that of the PRRC regarding pilotage rate or

2203recommend ing a rate in its recommended order , because section

2213301.151(4)(a) limits DOAH Ós decisions to only resolv ing issues

2223of material fact and PRRC Ós quasi - legislative role is to

2235formulate pilotage rates on DOAHÓs factual findings.

22422 4 . F CCA supports Respondents Ó position that the

2253challenged rule is valid and also contends that the doctrine of

2264in para materia should be applied in this matter. FCCA

2274maintain s in its Proposed Final Order that the Legislature

2284provided specific authority for the challenged rule in section

2293310.151(4)(a) when read within the context of the entire section

230331 0.151 and not in isolation . Intervenor advances that the

2314Legislature set up a statutory framework for pilotage rates that

2324deviate s from the usual APA procedures . FCCA correctly states

2335that section 310.15 1(4)(a) takes undisputed matters outside of

2344the typical informal administrative review that is held under

2353section 120.57(2 ) and makes the notice of intended agency action

2364final action if there are no disputed issues of fact raised .

23762 5 . FCCA further contends that a different process was

2387also enacted for the administrative appeals of pilotage rate

2396orders when parties raise disputed issues of material fact

2405seek ing administrative review . FCCA asserts that section

2414310.151(4)(a) is specific authority, when read in para materia

2423with in the entirety of section 310.151 , because it limits

2433section 120.57(1) by narrowing the ALJ Ó s role in a rate - review

2447proceeding to only resolv ing the factual disputes not the

2457pilotage rat e . FCCA contends that such provisions require th at

2469the ALJ only send his or her resolution back to the PRRC , the

2482sole rate arbiter , to analyze and determine the rate as

2492instructed in section 310.151(6) and section

2498310.002(7)(ÐÓPilotageÓ means the compensation fixed by the

2505Pilotage Rate Review C ommittee . . . Ñ) and the challenged rule

2518carries out such an intent .

25242 6 . Rule 61G14 - 22.012 identifies as specific authority

2535section 310.151(1)(c), which the parties have stipulated is

2543currently section 310.151(1)(d). Section 310.151(1)(d) states:

2549(d) The committee has authority to adopt

2556rules pursuant to ss. 120.536(1) and 120.54

2563to implement provisions of this section

2569conferring duties upon it. The department

2575shall provide the staff required by the

2582committee to carry out its duties under this

2590section .

25922 7 . Respondent s contend in its Proposed Final Order that

2604identifying section 120.57 as the ÐLaw ImplementedÑ for the

2613challenged rule is outdated and this section should not be

2623relied on for authority , because a technical ch ange could delete

2634it from the ÐLaw I mplementedÑ section. The undersigned rejects

2644such a proposition in that no change has been made in the ÐLaw

2657Implemented Ñ section and sections 310.151 and 120.57 exist as

2667text and must be addressed regarding this challenge .

26762 8 . The First District limited the scope of authority for

2688rulemaking after the APA 1999 amendments and determined that

2697Ðthe authority to adopt an administrative rule must be based on

2708explicit power or duty identified in the enabling statutes Ñ in

2719Southwest Florida Water Managemen t District v. Save the Manatee

2729Club, Inc. , 773 So. 2d 594 , 599 (Fla. 1st DCA 2000) (The court

2742determined that because the exemptions from permitting

2749requirements created within the rule had no specific statutory

2758authority, the rule was invalid) . Ultimately, Save the Manatee

2768also set the standards for determining if a rule is authorized

2779by creating the test " whether the statute contains a specific

2789grant of authority for the rule, not whether the grant is

2800specific enough. Either the enabling statut e authorizes the

2809rule at issue or it does not. " Id. at 599.

28192 9 . The First District also identified the parameters for

2830a specific grant of authority in Florida Department of Highway

2840Safety and Motor Vehicles v. JM Auto, Inc . , 977 So. 2d 733 , 734

2854(Fla. 1st DCA 2008). The court reiterated its view that " the

2865legislature ' s intent to restrict the scope of agency rulemaking

2876[requires that the court] approve a rule only when there is

2887statutory language authorizing the agency to adopt rules to

2896implement the subject matter of the statute. " Id. at 734.

290630 . The case law also supports limit ing rulemaking

2916authority to the specific subject matter addressed by the

2925statutory grant . For instance, in State v. Peter R. Brown

2936Construction, Inc . , 108 So. 3d 723, 726 - 27 (Fla. 1st DCA 2013),

2950the statute authorized the Chief Financial Officer to adopt

2959rules to process expenditures; the court held that the Chief

2969Financial Officer lacked the statutory authority to adopt a rule

2979prohibiting public expenditures for decorative items. In Lamar

2987Outdoor Advertising v. Department of Transportation , 17 So. 3d

2996799 (Fla. 1st DCA 2009), the statute authorized the agency to

3007administer statutes "related to the size, lighting, and spacing

3016of signs"; the court held that the agen cy lacked rulemaking

3027authority to adopt a rule as to the height of signs. In

3039Subirats v. Fidelity National Property , 106 So. 3d 997 (Fla. 3d

3050DCA 2013), the statute authorized the agency to adopt by rule a

3062property - insurance mediation program modeled after the practices

3071and procedures of a Supreme Court mediation program; the court

3081held that the agency lacked rulemaking authority to adopt a rule

3092setting a deadline for insurers to give insureds notice of t he

3104mediation program.

31063 1 . The undersigned agrees that the Legislature was

3116specific in creating a different procedure than the APA in

3126section 310.151(4)(a) for handling undisputed matters. T he

3134Legislature only dicta ted that if the Ðpetitioner has not raise d

3146a disputed issue of mate rial factÑ the CommitteeÓs decision

3156shall be final agency action . B y the Legislature not

3167referenc ing section 120.57(2), the informal hearing statute

3175under the APA, in section 310.151(4)(a) , and specifically

3183providing that the noticed rate becomes final, t he Legislature

3193eliminated the section 120.57(2) process where no factual

3201dispute is identified.

32043 2 . Likewise , t he Legislature also clearly mandated how

3215formal hearings with disputed facts should be handled in section

3225310.151(4)(a) , which states in pertinent part :

3232that the committee intends to modify the

3239pilotage rates in t hat port and that the

3248applicant may . . . request a hearing

3256pursuant to the Administrative Procedure Act

3262. . . any person whose substantial interests

3270will be affected by the intended committee

3277action may request a hearing pursuant to the

3285Administrative Procedure Act . I f the

3292committee concludes that the petitioner has

3298raised a disputed issue of material fact,

3305the committee shall designate a hearing,

3311which shall be conducted by formal

3317proceeding before an administrative law

3322judge assigned by the Division of

3328Administrative Hearings pursuant to ss.

3333120.569 and 120.57(1) , unless waived by all

3340the parties.

33423 3 . In sectio n 310.151(4)(a), t he Legislature plainly

3353directed that the APA be followed by specifically citing the

3363Administrative Procedures Act twice and instructin g section s

3372120.569 and 120.57(1) be adhered to for formal proceedings at

3382DOAH . This is significant because while some agency heads have

3393the authority to conduct disputed fact - finding hearings pursuant

3403to section 120.57(1), collegial bodies under Department of

3411Business and Professional Regulation ( Ð DPBRÑ) and the Secretary

3421of DBPR do not. See § 120.80(4 )(b), Fla. Stat. Section

3432120.57(1)(k) sets forth the authority of an ALJ in an

3442administrative hearing when disputed issues of material fact

3450exist and requires the ALJ Ðshall complete and submit to the

3461agency and all parties a recommended order consisting of

3470findings of fact, conclusions of law, and recommended

3478disposition or penalty, if applicable, and all other information

3487required by law to be contained in the final order.Ñ Section

3498120.57(1)(k) also provides that the hearing shall be Ðde novo.Ñ

35083 4 . Respondents rel y on South Florida Cargo Carriers

3519Association v. D epartment of Business and Prof essional

3528Regulation , 738 So. 2d 391 (Fla. 3 rd DCA 1999 ) . However, that

3542case was decided on an earlier version of section 120.52(8) and

3553is not found to be persuasive because case law prior to the APA

35661999 amendments adhere to a different standard with respect to

3576the discretion to be exercised by agencies for rulemaking , and

3586is not the current governing standard for valid exercise of

3596legislative authority. Additionally, Respondent s Ó case law

3604likening a courtÓs decision in a rate case to a n ALJÓs decision

3617is also distinguishable from the instant matter. DOAH is

3626neither a court nor judiciary but instead i s a Division pursuant

3638to section 120.52(5), which has authority under section

3646120. 57 (1)(k) to conduct a full de novo review of agency action

3659and issue a recommended disposition . Therefore, RespondentsÓ

3667position that a Legislative delegation to PRRC of quasi -

3677legislative authority prohibits DOAH from recommended rates is

3685rejected.

36863 5 . A grant of rulemaking authority is the Ð statutory

3698language that explicitly authorizes or requires an agency to

3707adopt [a rule].Ñ § 120.52(17), Fla. Stat.

37143 6 . Hence, FCCAÓs position that sufficient authority

3723exists for the challenged rule when sections 310.151(4)(a) and

3732310.151 are read in para materia, is without merit and does not

3744lead to the outcome proposed by FCCA because there is still no

3756statutory authority to a dopt rules restricting ALJs Ó duties when

3767entering a recommended order according to section 120.57(1)(k).

37753 7 . Here, the enabling legislation (specific authority

3784section 310.151(1)(d)) does not explicitly authorize the Board

3792or PRRC to adopt a rule limiting the role of ALJs in full de

3806novo administrative proceedings that consider intended agency

3813action governed by sections 120.569 and 120.57 (1) . Hence, the

3824statute cited as rulemaking authority for the challenged rule

3833fails to contai n the necessary Ðspecific grant of legislative

3843authority . Ñ

38463 8 . Furthermore, the Legislature created exceptions to APA

3856proceeding s in section s 120.80 and 120.81 . However, the

3867Legislature did not provide the PRRC an exception that allows

3877proceedings conducted according to section 120.57(1) to vary

3885even though the Legislature outlines exceptions for DBPR , the

3894agency that houses PRRC, in section 120.80(4). Moreover, only

3903the Legislature can determine procedures for chapter 120 because

3912neither the Board nor Committee have substantive jurisdiction

3920over chapter 120. Here, t he lack of explicit legislative

3930authorization is fatal to the challenged ruleÓs validity.

3938Accordingly, the undersigned concludes the challenged rule is

3946invalid under section 120.52(8)(b) because the PRRC Ðexceed[s]

3954its grant of rulemaking authorityÑ by impeding the ability of

3964DOAH to conduct a full de novo review of agency action without

3976the PR RC being authorized to restrict DOAHÓs statutory

3985authority .

3987Whether the Rule Enlarges, Modifies, or Contravenes

39943 9 . Petitioners also assert that rule 61G14 - 22.012 is an

4007in valid exercise of legislatively - delegated authority because it

4017enlarges, modifies, or contravenes the specific provision of law

4026implemented, in violation of sections 310.151 and 120.57.

403440 . The word ÐcontraveneÑ means to contradict or conflict .

4045Because no specific statute authorizes PRRC or POPC to limit the

4056authority of an ALJ in an administrative proceeding governed by

4066sections 120.569 and 120. 5 7 (1) , the challenged rule c ontradicts

4078the plain language of section 310.151(4)(a ) , which requires an

4088administrative hearing abide by section 120.57(1). Furthermore,

4095t he challenged rule also conflicts with section 310.151(d),

4104which requires the PRRC to promulgate only rules that are

4114Ð consistent with the law. Ñ Under such circumstances, the

4124challenged rule is an invalid exercise of delegated legislative

4133authority under section 120.52(8)(c ).

4138W hether the Rule is Arbitrary and Capricious

41464 1 . Petitioners also correctly maintain that the

4155challenged rule is arbitrary and capricious.

41614 2 . In the administrative context, the words "arbitrary"

4171and "capricious" have been interpreted as follows: "[a]n

4179arbitrary decision is one not supported by facts or logic, or

4190despotic" and that "[a] capricious action is one which is taken

4201without thought or reason or irrationally." Agrico Chem. Co. v.

4211Dep't of Envtl. Prot. , 365 So. 2d 759 , 763 (Fla. 1st DCA 1 979).

42254 3 . Being that the challenged rule exceeds PRRC Ó s

4237rulemaking authority, it is not rational . Moreover, b y

4247contravening both provisions of the law rule 61G14 - 22.012

4257purports to implement, the challenged rule also fails to

4266logically be related to its stated purpose. As such, the

4276challenged rule is an invalid exercise of delegated legislative

4285authority because it is arbitrary and capricious under section

4294120.52(8)(e).

4295Whether the Rule Violates the Flush Left Provision

43034 4 . Petitioner s also met their burden and demonstrated

4314that the challenged rule violates the Ðflush leftÑ language of

4324section 120.52(8) because when hearings are held at DOAH , all

4334the procedures of section 120 .57(1) should apply, including the

4344requirement that ALJ s conduct full de novo proceedings of

4354intended agency action to resolve the disputed facts and make a

4365recommendation based on the findings of fact.

43724 5 . A s interpreted in Save the Manatee , t he challenged

4385rul e fails to implement or interpret any specific po wers or

4397duties granted by the Legislature. Instead, the rule limits the

4407designated duties of ALJs, which is contrary to section

4416310.151(1)(d), the enabling statute. Accordingly, since PRRC

4423has not adopted a rule that implements or interprets the

4433specific powers and duties granted by the enabling statute , the

4443rule is invalid under the flush left provision .

4452Uniform Rules of Procedure Exception

44574 6 . Petitioners also contend that rule 61G - 22.012 is an

4470illegal procedural r ule in violation of section 120.54(5)(a)1 .

4480based on the BOPC and PRRC fail ing to seek an exc eption from the

4495Administration Commission to the statutory requirement that all

4503agencies follow the Uniform Rules of Procedure by July 1, 1 998.

4515The undersigned need not reach a conclusion on the issue since

4526the rule has been found to be invalid based on sections

4537120.52(8)(b), (c), (e), and the flush left provision.

4545ORDER

4546Based upon the foregoing Findings of Fact and Conclusions

4555of Law, it is ORDERED that Florida Administrative Code R ule

456661G14 - 22.012 constitutes an invalid exercise of delegated

4575legislative authority in violation of se ctions 120.52 (8)(b) ,

4584(c), (e), and the flush left provision.

4591DONE AND ORDERED this 20th day of March, 2015 , in

4601Tallahassee, Leon Coun ty, Florida.

4606S

4607JUNE C. MCKINNEY

4610Administrative Law Judge

4613Division of Administrative Hearings

4617The DeSoto Building

46201230 Apalachee Parkway

4623Tallahassee, Florida 32399 - 3060

4628(850) 488 - 9675

4632Fax Filing (850) 921 - 6847

4638www.doah.state.fl.us

4639Filed with the Clerk of the

4645Division of Administrative Hearings

4649this 20th day of March, 2015 .

4656COPIES FURNISHED :

4659Donna Elizabeth Blanton, Esquire

4663Radey Law Firm, P.A.

4667301 South Bronough Street , Suite 200

4673Tallahassee, Florida 32301

4676(eServed)

4677Warren H. Husband, Esquire

4681Metz, Husband and Daughton, P.A.

4686215 South Monroe Street , Suite 505

4692Tallahassee, Florida 32301

4695(eServed)

4696George N. Meros, Jr., Esquire

4701GrayRobinson, P.A.

4703301 South Bronough Street, Suite 600

4709Post Office Box 11189

4713Tallahassee, Florida 32302 - 3189

4718(eServed)

4719Robert Peltz, Esquire

4722The Peltz Law Firm

472610220 Southwest 141st Street

4730Miami, Florida 33176

4733(eServed)

4734William N. Spicola , General Counsel

4739Department of Business

4742and Professional Regulation

4745Northwood Centre

4747194 0 North Monroe Street

4752Tallahassee, Florida 32399 - 0792

4757(eServed)

4758Marlene K. Stern, Esquire

4762Clark R. Jennings, Esquire

4766Michael Flury, Esquire

4769Florida Department of Legal Affairs

4774The Capitol, Plaza Level 01

4779Tallahassee, Florida 32399

4782(eServed)

4783Thomas Fran cis Panza, Esquire

4788Panza, Maurer and Maynard, P.A.

47933600 North Federal Highway , 3rd Floor

4799Fort Lauderdale, Florida 33308

4803(eServed)

4804Ernest Reddick, Chief

4807Alexandra Nam

4809Department of State

4812R. A. Gray Building

4816500 South Bronough Street

4820Tallahassee, Florida 32399 - 0250

4825(eServed)

4826Ken Plante, Coordinator

4829Joint Administrative Proced ures Committee

4834Room 680, Pepper Building

4838111 West Madison Street

4842Tallahassee, Florida 32399 - 1400

4847(eServed)

4848John MacIver, Executive Director

4852Board of Pilot Commissioners

4856Department of Business

4859and Professional Regulation

4862Northwood Centre

48641740 North Monroe Street

4868Tallahassee, Florida 32399

4871(eServed)

4872Robyn Barineau, Executive Director

4876Pilotage Rate Review Board

4880Department of Business

4883and Professional Regulation

4886Nort hwood Centre

48891740 North Monroe Street

4893Tallahassee, Florida 32399

4896(eServed)

4897NOTICE OF RIGHT TO JUDICIAL REVIEW

4903A party who is adversely affected by this Final Order is

4914entitled to judicial review pursuant to section 120.68, Florida

4923Statutes. Review proceedings are governed by the Florida Rules

4932of Appellate Procedure. Such proceedings are commenced by

4940filing one copy of a Notice of Appeal with the agency clerk of

4953the Division of Administrative Hearings and a second copy,

4962accompanied by filing fees pr escribed by law, with the District

4973Court of Appeal, First District, or with the District Court of

4984Appeal in the appellate district where the party resides. The

4994Notice of Appeal must be filed within 30 days of rendition of

5006the order to be reviewed.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 05/27/2015
Proceedings: Order Closing File. CASE CLOSED.
PDF:
Date: 05/27/2015
Proceedings: Joint Motion to Relinquish Jurisdiction to Respondent with Right to Reopen Case filed.
PDF:
Date: 05/21/2015
Proceedings: Joint Motion for Continuance filed.
PDF:
Date: 05/07/2015
Proceedings: Amended Notice of Hearing (hearing set for June 11, 2015; 9:30 a.m.; Tallahassee, FL; amended as to date of hearing).
PDF:
Date: 04/15/2015
Proceedings: Notice of Hearing (hearing set for May 27, 2015; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 04/06/2015
Proceedings: Joint Response to Order to Re-opening File filed.
PDF:
Date: 03/30/2015
Proceedings: Order Re-opening File. CASE REOPENED.
PDF:
Date: 03/27/2015
Proceedings: Petition to Reopen Case for Purpose of Awarding Attorneys' Fees and Costs filed.
PDF:
Date: 03/20/2015
Proceedings: DOAH Final Order
PDF:
Date: 03/20/2015
Proceedings: Final Order. CASE CLOSED.
PDF:
Date: 02/09/2015
Proceedings: Proposed Final Order of Petitioners Biscayne Bay Pilots, Inc., Port Everglades Pilots, Inc., and The Florida State Pilots' Association filed.
PDF:
Date: 02/09/2015
Proceedings: Pilotage Rate Review Committee's Proposed Final Order filed.
PDF:
Date: 02/09/2015
Proceedings: Florida-Caribbean Cruise Association'ss Proposed Final Order filed.
PDF:
Date: 02/03/2015
Proceedings: Stipulated Preliminary Statement and Facts filed.
PDF:
Date: 02/02/2015
Proceedings: Order Granting Petition to Intervene.
PDF:
Date: 01/30/2015
Proceedings: Florida Caribbean Cruise Association's Third Renewed Motion for Leave to Intervene filed.
PDF:
Date: 01/26/2015
Proceedings: Order Granting Motion to Remove Case from Abeyance.
PDF:
Date: 01/23/2015
Proceedings: (Petitioners') Status Report and Unopposed Request that Case be Removed from Abeyance filed.
PDF:
Date: 01/06/2015
Proceedings: Order Denying Request that Case be Removed from Abeyance.
PDF:
Date: 12/24/2014
Proceedings: Florida Caribbean Cruise Association's Second Renewed Motion for Leave to Intervene filed.
PDF:
Date: 12/22/2014
Proceedings: Response to Request to Remove Case from Abeyance filed.
PDF:
Date: 12/18/2014
Proceedings: (Petitioner's) Status Report and Request that Case be Removed from Abeyance filed.
PDF:
Date: 11/18/2014
Proceedings: Order Denying Petitioners` Motion to Remove Case from Abeyance.
PDF:
Date: 11/14/2014
Proceedings: Florida Caribbean Cruise Association's Renewed Motion for Leave to Intervene filed.
PDF:
Date: 11/13/2014
Proceedings: (Petitioners') Status Report and Request that Case be Removed from Abeyance and that Final Hearing be Rescheduled filed.
PDF:
Date: 11/05/2014
Proceedings: Petitioners' Response to FCAA's Motion for Leave to Intervene filed.
PDF:
Date: 11/05/2014
Proceedings: Order Canceling Hearing and Placing Case in Abeyance (parties to advise status by January 5, 2015).
PDF:
Date: 11/03/2014
Proceedings: Florida Caribbean Cruise Association's Motion for Leave to Intervene.
PDF:
Date: 10/31/2014
Proceedings: (Petitioners') Unopposed Motion to Cancel Hearing and Place Case in Abeyance filed.
PDF:
Date: 10/27/2014
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/27/2014
Proceedings: Notice of Hearing (hearing set for November 18, 2014; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 10/27/2014
Proceedings: Notice of Appearance (Clark Jennings) filed.
PDF:
Date: 10/27/2014
Proceedings: Notice of Appearance (Marlene Stern) filed.
PDF:
Date: 10/27/2014
Proceedings: Notice of Appearance (Michael Flury) filed.
PDF:
Date: 10/24/2014
Proceedings: Order of Assignment.
PDF:
Date: 10/24/2014
Proceedings: Rule Challenge transmittal letter to Liz Cloud from Claudia Llado copying Ken Plante and the Agency General Counsel.
PDF:
Date: 10/23/2014
Proceedings: Petition to Determine the Invalidity of Existing Rule 61G14-22.012 filed.

Case Information

Judge:
JUNE C. MCKINNEY
Date Filed:
10/23/2014
Date Assignment:
10/24/2014
Last Docket Entry:
05/27/2015
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Business and Professional Regulation
Suffix:
RX
 

Counsels

Related Florida Statute(s) (12):