15-000091RU William B. Swaim vs. Florida Department Of Environmental Protection Status: Closed DOAH Final Order on Tuesday, January 27, 2015.

Summary: Petition challenging an agency statement dismissed because Petitioner lacked standing and statement on its face was not a rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM B. SWAI M , )

)

Petitioner , )

)

vs. ) Case No. 1 5 - 0091RU

)

DEPAR TMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent . )

_______________________________ /

FINAL ORDER OF DISMISSAL

This cause is before the undersigned on Respondent's Motion

t o Dism iss (Motion) filed on J anuary 21, 2015. The Motion seeks

to dismiss Mr. Swaim's Petition to Determine Invalidity of

Agency Rule and Agency Statement (Petition) on several grounds . 1 /

On January 22, 2015, Petitioner filed a response in opposition

to the Motion. As explained below, the statement being

challenged will not cause Mr. Swaim to suffer an immediate

injury in fact, and on its face the statement is not a rule .

For these reasons, the Motion is granted.

In brief, t he Petition alleges that M r. Swaim is a contract

purchaser of certain property in Palm Beach County ; that he

applied for "an exemption/permit" from the South Florida Water

Management District (SFWMD) and the U.S. Army Corps of

Engineers ; 2 / and during that process, he requested that the

Department of Environmental Protection (Department) make a

"determination of State ownership of the Petitioner's property

. . . for permitting and exemption purposes." Petition, ¶ ¶ 1

and 2 . In response to that inquiry, on March 25, 2014, the

Depart ment 's Chief of the Bureau of Survey and Mapping, Rod A.

Maddox, advised Petitioner by letter as follows:

Our records contain insufficient information

to determine ownership of the Spanish River

prior to alterations at the subject site.

Therefore, we rec ommend the proprietary

requirements that would normally apply to

state owned lands not apply to this site.

Sometime after December 16, 2014, in a telephone

conversation with Mr. Maddox , Petitioner was told that the

agency would not modify or clarify the le tter. Petition, ¶ 1 ;

Ex. A. The remainder of the Petition is largely argument that

the Department's statement is incorrect and that there are no

sovereign lands on the property subject to state ownership. As

relief, the Petition requests the entry of a final order (a)

determining that the challenged statement is an unadopted rule ,

and (b) ordering "DEP to issue a letter to the Petitioner that

clearly state [sic] that the State of Florida has no ownership

interest in the Petitioner's property."

In order to establish standing, Mr. Swaim must show that he

will suffer a real or immediate injury in fact. The injury may

not be based on speculation or conjecture. Here, the Department

has indicated that it lacks sufficient information to make a

definitive dete rmination on the question presented. It leaves

open the possibility of Mr. Swaim providing further information

on this issue at a future time, which might lead to a different

determination being made . Thus, at this time, the alleged

"injury" is based on nothing more than speculation and

conjecture.

An unadopted rule is defined in section 120.52(20) , Florida

Statutes, to mean " an agency statement that meets the definition

of the term ' rule, ' but that has not been adopted pursuant to

the requirements of s . 120.54. " A rule means "each agency

statement of general applicability that implements, interprets,

or prescribes law or policy or describes the procedure or

practice requirements of an agency and includes any form which

imposes any requirement or solici ts any information not

specifically required by statute or by an existing rule."

§ 120.52(16), Fla. Stat.

Even assuming that Mr. Swaim's substantial interests are

affected by the letter , a statement which is limited to a

particular person or singula r factual situation on an ad hoc,

case - by - case basis is not a statement of general applicability.

See, e.g. , State, Dep't of Com ., Div. of Labor v. Matthews

Corp. , 358 So. 2d 256 , 257 (Fla. 1st DCA 1978)(wage rate

guidelines applicable only to the constru ction of a particular

public building was not a statement of general applicability);

Dep't of High. Safety & Motor Veh. v. Schluter , 705 So. 2d 81,

82 (Fla. 1st DCA 1997)(agency statements that applied only under

"certain circumstances" and did not have th e "consistent effect

of law" were not statements of general applicability). In this

case, the letter contains a narrowly focused, individualized

statement that agencies routinely issue in determining the

substantial interests of individual persons. It is not a rule.

Because the deficiencies cannot be cured by an amended

pleading, the Motion is granted, and the Petition is dismissed,

with prejudice.

DONE AND ORDERED this 27th day of January , 2015, in

Tallahassee, Leon County, Florida.

S

D . R. ALEXANDE R

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 Administrativ e Hearings

this 27th day of January , 2015 .

ENDNOTE S

1/ Although styled as a challenge to an agency rule and agency

statement, the Petition only challenges an agency statement. No

existing rule is mentioned in the Petition.

2/ It appears that the S FWMD exemption case has been docketed as

Case No. 14 - 0448 and is scheduled to be heard on March 18 and

19, 2015.

COPIES FURNISHED:

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Stree t

Tallahassee , Florida 32399 - 1400

(eServed)

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

(eServed)

William B. Swaim

Apartment 104

600 Via Lugano Circle

Boynton Beach, Florida 33436

(eServed)

Benjamin M. Melnick, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A person who is adversely affected b y this Final Order of

Dismissal 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 Appe al with the

agency clerk of the Division of Administrative Hearings and a

copy, accompanied by filing fees prescribed by law, with the

District Court of Appeal in the 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.