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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BISCAYNE BAY PILOTS, INC.; PORT

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

EVERGLADES PILOTS ASSOCIATION; AND

THE FLORIDA STATE PILOTS'

ASSOCIATION, INC., d/b/a FLORIDA

HARBOR PILOTS ASSOCIATION,

Petitioners,

vs. Case No. 14 - 5036RX

BOARD OF PILOT COMMISSIONERS,

PILOTAGE RATE REVIEW COMMITTEE , AND

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

Respondents

and

FLORIDA - CARIBBEAN CRUISE

ASSOCIATION,

Intervenor .

_______________________________/

FINAL ORDER

The parties to this rule challenge proceeding agreed that

the issues to be determined are legal matters and stipulated

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

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

proposed final orders were submitted by the parties, for

consideration by June C. McKinney, a designated Administrative

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

APPEARANCES

For Petitioner s : Donna E. Blanton

Radey Law Firm , P.A.

301 South Bronough, Suite 200

Tallahassee, Florida 32301

( Counsel for Biscayne Bay Pilots, Inc. )

Robert Peltz

The Peltz Law Firm

10220 Southwest 141st Street

Miami, Florida 33176

( Couns el for Biscayne Bay Pilots, Inc. )

George N. Meros, Jr.

Gray Robinson, P.A.

600 South Bronough Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302 - 3189

( Counsel for Port Everglades Pilots, Inc.,

d/b/a Port Everglades PilotsÓ Association )

Warren H. Husband

Metz, Husband & Daughton , P.A.

215 South Monroe Street, Suite 505

Tallahassee, Florida 32301

( Counse l for The Florida State PilotsÓ

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

Pilots Association )

For Respondent s: Marlene K. Stern

Clark Jenn ings

Michael Flury

Assistant Attorneys General

Office of the Attorney General

PL - 01, The Capitol

Tallahassee, Florida 32399 - 1050

For Intervenor: Thomas Panza

Gregory McDermott

Panza, Mauer & Maynard , P.A.

3600 North Federal Highway , 3rd Floor

Ft. Lauderdale, Florida 33308

STATEMENT OF THE ISSUE

The issue is whether Florida Administrative Code Rule

61G14 - 22.012 is an invalid exercise of legislatively delegated

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

(2014) .

PRELIMINARY STATEMENT

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

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

Pilots Association (ÐPEPAÑ); and the Florida State PilotsÓ

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

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

Petition to Determine the Invalidity of Existing Rule 61G14 -

22.012, Florida Administrative Code. A final administrative

hearing was scheduled for November 18, 2014.

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

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

granted on November 5, 2014. Subsequent motions filed by

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

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

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

Petitioners filed a Status Report a nd Unopposed Request that

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

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

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

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

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

The Florida - Caribbean Cruise Associat ion (ÐFCCAÑ or

ÐIntervenor Ñ ) filed a Motion for Leave to Intervene on

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

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

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

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

2015.

On February 3, 2015, the parties filed a Stipulated

Preliminary Statement and Facts , which contains a stipulation

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

incorporated into the Findings of Fact below . The parties filed

Joint Exhibits 1 through 8.

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

their proposed final orders. All submissions were timely filed

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

FINDINGS OF FACT

1. Petitioner BBP is an association of harbor pilots that

performs the pilotage services at PortMiami. BBP consists of

pilots licensed by the State of Florida in accordance with

chapter 310, Florida Statutes. Petitioner PEPA is an

association of harbor pilots that performs the pilotage services

at Port Everglades. PEPA consists of pilots licensed by the

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

statewide organization representing the interests of FloridaÓs

approximately 100 state - licensed harbor pilots, the membership

of which is comprised of the eleven local pilot associations

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

are members of FHPA.

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

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

Florida Statutes , requires that, except in certain narrow

circumstances, all vessels shall have a licensed state pilot or

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

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

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

ports.

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

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

the Governor Ðto perform such duties and possess and exercise

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

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

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

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

and disciplines licensed pilot s when appropriate (section

310.101). Although the BOPC has numerous statutory

responsibilities, setting the rates of pilotage in each port is

not one of them .

4. Florida Administrative Code R ule 61G14 - 22.012

(Ðchallenged ruleÑ or ÐruleÑ) is entitled ÐDetermination of

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

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

specific authority.

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

310.151 and 120.57.

7. The former Pi lotage Rate Review Board originally

adopted the rule in 1995. When the Legislature amended chapter

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

changed to the Pilotage Rate Review Committee ( ÐPRRCÑ or

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

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

setting rates of pilotage in each port.

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

in the Florida Administrative Register announcing a teleph one

conference call meeting for consideration of ÐRate Review

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

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

information to know if a Statement of Estimated Regulatory Costs

was re quired.

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

notice in the Florida Administrative Register announcing a

telephone conference call meeting for consideration of ÐRate

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

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

because the issue of potential reconsideration had not been

properly noticed, no official vote on reconsideration was taken.

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

in the Florida Ad ministrative Register announcing a meeting on

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

noticed for consideration was ÐReconsideration of Repeal of Rule

61G14 - 22.012, F.A.C. Ñ This matter was considered by the PRRC on

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

repealing rule 61G14 - 22.012.

11. FCCA is a trade association representing cruise lines

that are subject to pilotage fees pursuant to chapter 310,

Florida Statutes. FCCA has filed petitions to reduce the rates

of pilotage in both PortMiami and in Port Everglades.

CONCLUSIONS OF LAW

12. DOAH has jurisdiction over the parties to and subject

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

(3), Florida Statutes (2014) .

13. Petitioners are substantially affected by the

challenged rule and have associational standing to challenge the

rule.

14. Intervenors also have standing to participate in this

matter.

15. Petitioners have Ðthe burden of proving by a

preponderance of the evidence that the existing rule is an

invalid exercise of delegated legislative authority as to the

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

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

16. Section 120.52 (17) defines Ðrulemaking authorityÑ as

Ðstatutory language that explicitly authorizes or requires an

agency to adopt, develop, establish or otherwise create any

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

17. The challenged rule states in pertinent part:

Since the determination of the actual rate

of pilotage to be imposed at any port is a

quasi - legislative act, the resolution of any

disputed issue of material fact by a hearing

officer assigned by the Division o f

Administrative Hearings shall not result in

a recommendation from the hearing officer as

to the appropriate rate to be imposed at any

port area in question. The hearing

officerÓs recommendation shall only extend

to resolving disputed issues of material

fact which result from a partyÓs disputing

the underlying facts upon which the Board

has suggested intended rates for the port

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

F.A.C.).

18. FCCAÓs assertion that PetitionersÓ rule challenge is

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

various DOAH hearings and other review proceedings is rejected.

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

during the existence of the ruleÑ according to the plain

language of section 120.56(3)(a).

19. PetitionersÓ rule challenge is based on the amendments

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

subsequent case law. Petitioners contend that the changes have

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

legislative authority . Pilots assert that the challenged rule

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

and the flush left provis ion, specifically the language stating

that Ðan agency may adopt only rules that implement or interpret

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

20. A n Ðinvalid exercise of delegated legislative

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

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

Stat. A rule is an Ðinvalid exercise of delegated legislative

authorityÑ if any one of the following standards relevant to

this case applies:

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

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

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

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

* * *

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational;

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

referred to as the Ðflush left Ñ provision, an unnumbered

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

1999 to restrict the scope of agency rule making authority. The

paragraph states in full :

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agencyÓs

class of powers and duties, nor shall an

agenc y have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no furth er than implementing or

interpreting the specific powers and duti es

conferred by the enabling statute.

Whether the Department Has Exceeded Its Authority

22 . Petitioners maintain correctly the challenged rule is

invalid and exceeds its grant of rulemaking authority because it

prohibits an ALJ from performing duties required under section

120.57(1)(k) . Petitioners advance that nothing in the laws

implemented or any other statute provides an exception for ALJÓs

to perform their duties other th an required under section

120.57(1)(k) , and section 310.151(4)(a) plainly states that if a

petitioner requesting a hearing raises a disputed issue of

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

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

2 3 . Respondent s counter that the rule has specific

authority because fixing rates is a legislative function.

Respondent s claim in their Proposed Final Order that the

Legislature delegated rate - fixing authority to the PRRC in

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

pilotageÑ) and ALJs are prohibited from either substitut ing

judgment for that of the PRRC regarding pilotage rate or

recommend ing a rate in its recommended order , because section

301.151(4)(a) limits DOAH Ós decisions to only resolv ing issues

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

formulate pilotage rates on DOAHÓs factual findings.

2 4 . F CCA supports Respondents Ó position that the

challenged rule is valid and also contends that the doctrine of

in para materia should be applied in this matter. FCCA

maintain s in its Proposed Final Order that the Legislature

provided specific authority for the challenged rule in section

310.151(4)(a) when read within the context of the entire section

31 0.151 and not in isolation . Intervenor advances that the

Legislature set up a statutory framework for pilotage rates that

deviate s from the usual APA procedures . FCCA correctly states

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

the typical informal administrative review that is held under

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

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

2 5 . FCCA further contends that a different process was

also enacted for the administrative appeals of pilotage rate

orders when parties raise disputed issues of material fact

seek ing administrative review . FCCA asserts that section

310.151(4)(a) is specific authority, when read in para materia

with in the entirety of section 310.151 , because it limits

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

proceeding to only resolv ing the factual disputes not the

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

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

sole rate arbiter , to analyze and determine the rate as

instructed in section 310.151(6) and section

310.002(7)(ÐÓPilotageÓ means the compensation fixed by the

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

carries out such an intent .

2 6 . Rule 61G14 - 22.012 identifies as specific authority

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

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

(d) The committee has authority to adopt

rules pursuant to ss. 120.536(1) and 120.54

to implement provisions of this section

conferring duties upon it. The department

shall provide the staff required by the

committee to carry out its duties under this

section .

2 7 . Respondent s contend in its Proposed Final Order that

identifying section 120.57 as the ÐLaw ImplementedÑ for the

challenged rule is outdated and this section should not be

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

it from the ÐLaw I mplementedÑ section. The undersigned rejects

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

Implemented Ñ section and sections 310.151 and 120.57 exist as

text and must be addressed regarding this challenge .

2 8 . The First District limited the scope of authority for

rulemaking after the APA 1999 amendments and determined that

Ðthe authority to adopt an administrative rule must be based on

explicit power or duty identified in the enabling statutes Ñ in

Southwest Florida Water Managemen t District v. Save the Manatee

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

determined that because the exemptions from permitting

requirements created within the rule had no specific statutory

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

also set the standards for determining if a rule is authorized

by creating the test " whether the statute contains a specific

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

specific enough. Either the enabling statut e authorizes the

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

2 9 . The First District also identified the parameters for

a specific grant of authority in Florida Department of Highway

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

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

legislature ' s intent to restrict the scope of agency rulemaking

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

statutory language authorizing the agency to adopt rules to

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

30 . The case law also supports limit ing rulemaking

authority to the specific subject matter addressed by the

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

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

the statute authorized the Chief Financial Officer to adopt

rules to process expenditures; the court held that the Chief

Financial Officer lacked the statutory authority to adopt a rule

prohibiting public expenditures for decorative items. In Lamar

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

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

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

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

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

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

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

property - insurance mediation program modeled after the practices

and procedures of a Supreme Court mediation program; the court

held that the agency lacked rulemaking authority to adopt a rule

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

mediation program.

3 1 . The undersigned agrees that the Legislature was

specific in creating a different procedure than the APA in

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

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

a disputed issue of mate rial factÑ the CommitteeÓs decision

shall be final agency action . B y the Legislature not

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

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

providing that the noticed rate becomes final, t he Legislature

eliminated the section 120.57(2) process where no factual

dispute is identified.

3 2 . Likewise , t he Legislature also clearly mandated how

formal hearings with disputed facts should be handled in section

310.151(4)(a) , which states in pertinent part :

that the committee intends to modify the

pilotage rates in t hat port and that the

applicant may . . . request a hearing

pursuant to the Administrative Procedure Act

. . . any person whose substantial interests

will be affected by the intended committee

action may request a hearing pursuant to the

Administrative Procedure Act . I f the

committee concludes that the petitioner has

raised a disputed issue of material fact,

the committee shall designate a hearing,

which shall be conducted by formal

proceeding before an administrative law

judge assigned by the Division of

Administrative Hearings pursuant to ss.

120.569 and 120.57(1) , unless waived by all

the parties.

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

directed that the APA be followed by specifically citing the

Administrative Procedures Act twice and instructin g section s

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

DOAH . This is significant because while some agency heads have

the authority to conduct disputed fact - finding hearings pursuant

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

Business and Professional Regulation ( Ð DPBRÑ) and the Secretary

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

120.57(1)(k) sets forth the authority of an ALJ in an

administrative hearing when disputed issues of material fact

exist and requires the ALJ Ðshall complete and submit to the

agency and all parties a recommended order consisting of

findings of fact, conclusions of law, and recommended

disposition or penalty, if applicable, and all other information

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

120.57(1)(k) also provides that the hearing shall be Ðde novo.Ñ

3 4 . Respondents rel y on South Florida Cargo Carriers

Association v. D epartment of Business and Prof essional

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

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

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

1999 amendments adhere to a different standard with respect to

the discretion to be exercised by agencies for rulemaking , and

is not the current governing standard for valid exercise of

legislative authority. Additionally, Respondent s Ó case law

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

is also distinguishable from the instant matter. DOAH is

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

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

120. 57 (1)(k) to conduct a full de novo review of agency action

and issue a recommended disposition . Therefore, RespondentsÓ

position that a Legislative delegation to PRRC of quasi -

legislative authority prohibits DOAH from recommended rates is

rejected.

3 5 . A grant of rulemaking authority is the Ð statutory

language that explicitly authorizes or requires an agency to

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

3 6 . Hence, FCCAÓs position that sufficient authority

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

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

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

statutory authority to a dopt rules restricting ALJs Ó duties when

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

3 7 . Here, the enabling legislation (specific authority

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

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

novo administrative proceedings that consider intended agency

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

statute cited as rulemaking authority for the challenged rule

fails to contai n the necessary Ðspecific grant of legislative

authority . Ñ

3 8 . Furthermore, the Legislature created exceptions to APA

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

Legislature did not provide the PRRC an exception that allows

proceedings conducted according to section 120.57(1) to vary

even though the Legislature outlines exceptions for DBPR , the

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

the Legislature can determine procedures for chapter 120 because

neither the Board nor Committee have substantive jurisdiction

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

authorization is fatal to the challenged ruleÓs validity.

Accordingly, the undersigned concludes the challenged rule is

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

its grant of rulemaking authorityÑ by impeding the ability of

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

the PR RC being authorized to restrict DOAHÓs statutory

authority .

Whether the Rule Enlarges, Modifies, or Contravenes

3 9 . Petitioners also assert that rule 61G14 - 22.012 is an

in valid exercise of legislatively - delegated authority because it

enlarges, modifies, or contravenes the specific provision of law

implemented, in violation of sections 310.151 and 120.57.

40 . The word ÐcontraveneÑ means to contradict or conflict .

Because no specific statute authorizes PRRC or POPC to limit the

authority of an ALJ in an administrative proceeding governed by

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

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

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

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

which requires the PRRC to promulgate only rules that are

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

challenged rule is an invalid exercise of delegated legislative

authority under section 120.52(8)(c ).

W hether the Rule is Arbitrary and Capricious

4 1 . Petitioners also correctly maintain that the

challenged rule is arbitrary and capricious.

4 2 . In the administrative context, the words "arbitrary"

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

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

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

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

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

4 3 . Being that the challenged rule exceeds PRRC Ó s

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

contravening both provisions of the law rule 61G14 - 22.012

purports to implement, the challenged rule also fails to

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

challenged rule is an invalid exercise of delegated legislative

authority because it is arbitrary and capricious under section

120.52(8)(e).

Whether the Rule Violates the Flush Left Provision

4 4 . Petitioner s also met their burden and demonstrated

that the challenged rule violates the Ðflush leftÑ language of

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

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

requirement that ALJ s conduct full de novo proceedings of

intended agency action to resolve the disputed facts and make a

recommendation based on the findings of fact.

4 5 . A s interpreted in Save the Manatee , t he challenged

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

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

designated duties of ALJs, which is contrary to section

310.151(1)(d), the enabling statute. Accordingly, since PRRC

has not adopted a rule that implements or interprets the

specific powers and duties granted by the enabling statute , the

rule is invalid under the flush left provision .

Uniform Rules of Procedure Exception

4 6 . Petitioners also contend that rule 61G - 22.012 is an

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

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

Administration Commission to the statutory requirement that all

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

The undersigned need not reach a conclusion on the issue since

the rule has been found to be invalid based on sections

120.52(8)(b), (c), (e), and the flush left provision.

ORDER

Based upon the foregoing Findings of Fact and Conclusions

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

61G14 - 22.012 constitutes an invalid exercise of delegated

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

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

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

Tallahassee, Leon Coun ty, Florida.

S

JUNE C. MCKINNEY

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 20th day of March, 2015 .

COPIES FURNISHED :

Donna Elizabeth Blanton, Esquire

Radey Law Firm, P.A.

301 South Bronough Street , Suite 200

Tallahassee, Florida 32301

(eServed)

Warren H. Husband, Esquire

Metz, Husband and Daughton, P.A.

215 South Monroe Street , Suite 505

Tallahassee, Florida 32301

(eServed)

George N. Meros, Jr., Esquire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302 - 3189

(eServed)

Robert Peltz, Esquire

The Peltz Law Firm

10220 Southwest 141st Street

Miami, Florida 33176

(eServed)

William N. Spicola , General Counsel

Department of Business

and Professional Regulation

Northwood Centre

194 0 North Monroe Street

Tallahassee, Florida 32399 - 0792

(eServed)

Marlene K. Stern, Esquire

Clark R. Jennings, Esquire

Michael Flury, Esquire

Florida Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eServed)

Thomas Fran cis Panza, Esquire

Panza, Maurer and Maynard, P.A.

3600 North Federal Highway , 3rd Floor

Fort Lauderdale, Florida 33308

(eServed)

Ernest Reddick, Chief

Alexandra Nam

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Administrative Proced ures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

John MacIver, Executive Director

Board of Pilot Commissioners

Department of Business

and Professional Regulation

Northwood Centre

1740 North Monroe Street

Tallahassee, Florida 32399

(eServed)

Robyn Barineau, Executive Director

Pilotage Rate Review Board

Department of Business

and Professional Regulation

Nort hwood Centre

1740 North Monroe Street

Tallahassee, Florida 32399

(eServed)

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 proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

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

the Division of Administrative Hearings and a second copy,

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

Court of Appeal, First 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.