15-004726RU Enrique G. Estevez vs. Department Of Environmental Protection And Board Of Trustees Of The Internal Improvement Fund Status: Closed DOAH Final Order on Monday, November 2, 2015.

Summary: Petitioner failed to prove that the alleged unadopted rule was an agency statement of general applicability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ENRIQUE G. ESTEVEZ,

Petitioner,

vs. Case No. 15 - 4726RU

DEPARTMENT OF ENVIRONMENTAL

PROTECTION AND BOARD OF

TRUSTEES OF THE INTERNAL

IMPROVEMENT FUND,

Respondent s .

/

FINAL ORDER

Pursuant to a stipulated record, this matter is before

E. Gary Early, an A dministrative L aw J udge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Enrique G. Estevez , pro se

705 Canadice Lane

Winter Springs, Florida 32708

For Respondent s : Jeff Brown, Esquire

Glenn Wallace Rininger, Esquire

Department of Environmental Protection

Mail Stop 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue for disposition in this case is whether

Respondent has implemented an agency statement that meet s the

definition of a rule, but which ha s not been adopted pursuant to

section 120.54 , Flor ida Statutes .

PRELIMINARY STATEMENT

Petitioner, Enrique G. Estevez (Petitioner), filed his

Petition Challenging Agency Statement as Unadopted Rule

(Petition) on August 21, 2015 . The Petition alleged :

that the Board's definition of a Ð liveaboard

vessel Ñ as set forth in a Lease for use of

submerged sovereignty lands for a Marina in

Titusville, Florida, . . . constitutes

agency policy unadopted as a rule and an

invalid exercise of delegated legislative

authority which contravenes Florida law.

A preheari ng conference was held on August 28, 2015, during

which the parties agreed that this case was suitable for a

summary final order based on a stipulated record and proposed

final orders. The record and proposed orders were to be filed

by September 30, 2015.

On September 24, 2015, Respondents filed a Motion to Extend

Filing Deadline, which requested that the date for filing be

extended to October 15, 2015, a request that Petitioner

supported. The Motion was granted.

On October 15, 2015, the parties filed a Joint Stipulation,

along with Stipulated Exhibits A through E. Petitioner filed a

Proposed Summary Final Order, a Memorandum of Law in Support of

a Proposed Summary Final Order, and an Affidavit. The Affidavit

was not opposed by Respondents , and is acc epted as Stipulated

Exhibit F . Respondent filed a Proposed Final Order. All

documents have been considered in the preparation of this Final

Order.

References to statutes are to Florida Statutes (201 5 )

unless otherwise noted.

FINDINGS OF FACT

1. The B oard of Trustees of the Internal Improvement Trust

Fund (Board) is charged with the management of state lands,

including sovereign submerged lands . § 253.03(1) , Fla. Stat.

2. The Department of Environmental Protection (Department)

is charged with the d uty to Ðperform all staff duties and

functions related to the acquisition, administration, and

disposition of state lands, title to which is or will be vested

in the Board of Trustees of the Internal Improvement Trust

Fund . Ñ £ 253.002(1), Fla. Stat.

3 . The City of Titusville operates a municipal marina,

which includes a 205 - slip docking facility for mooring of

commercial and recreational vessels (Marina) , on sovereignty

submerged lands leased from the Board.

4 . Petitioner owns a Florida - registered ve ssel which he

keeps at the Marina pursuant to an annual mooring/dockage

agreement .

5 . On June 9, 2009, the City of Titusville and the Board

entered into a Ð fee waived Ñ lease renewal and modification for a

parcel of sovereignty submerged land in the India n River

(Lease) . The L ease allows the M arina to operate Ðwith

liveaboards as defined in paragraph 26, as shown and conditioned

in Attachment A, and the State of Florida Department of

Environmental Protection, Consolidated Environmental Resource

Permit No. 05 - 287409 - 001, dated December 31, 2008, incorporated

herein and made a part of this lease by reference.Ñ

6 . Paragraph 26 of the L ease provides that:

26. LIVEABOARDS: The term Ð liveaboard Ñ is

defined as a vessel docked at the facility

and inhabited by a person or persons for any

five (5) co nsecutive days or a total of

ten (10) days within a thirty (30) day

period. If liveaboards are authorized by

paragraph one (1) of this lease, in no event

shall such ÐliveaboardÑ status exceed six

(6) months withi n any twelve (12) month

period, nor shall any such vessel constitute

a legal or primary residence.

7 . On or about July 31, 2015, Petitioner and the C ity of

Titusville e ntered into the annual contractual mooring/ dockage

agreement , p aragraph 4 of which p rovides that:

4. LIVEABOARDS: For the purposes of this

Agreement, the term ÐliveaboardÑ is defined

herein as a vessel docked at the facility

and inhabited by a person or persons for any

five (5) con secutive days or a total of

ten (10) days within a thirt y (30) day

period. Pursuant to requirements of the

CityÓs Submerged Land Lease with the State

of Florida, no vessel shall occupy the

Marina in this Ð1iveaboardÑ status for more

than six (6) months within any twelve (l2)

month period, nor shall the Marina Facility

constitute a legal or primary residence of

the OWNER.

8. Petitioner asserts that the alleged agency statement

regarding ÐliveaboardÑ vessels Ðunreasonably and arbitrarily

denies me the unrestricted right to stay on my vessel by

limiting the num ber of consecutive days during which I may

occupy the vessel,Ñ and that Ð[t]he BoardÓs non - rule policy

denies me the unrestricted freedom to enjoy my vessel as a

second home .Ñ

CONCLUSIONS OF LAW

9 . The Division of Administrative Hearings has

jurisdictio n over the parties and the subject matter of this

proceeding pursuant to sections 120.56(4), 120.569 , and

120.57(1), Florida Statutes (2014).

10 . Section 120.52(16) defines a rule as:

each agency statement of general

applicability that implements, interp rets,

or prescribes law or policy or describes

the procedure or practice requirements of

any agency and includes any form which

imposes any requirement or solicits any

information not specifically required by

statute or by an existing rule.

11 . An "unad opted rule" is defined as an agency statement

that meets the definition of the term rule, but that has not

been adopted pursuant to the requirements of section 120.54.

§ 120.52(20), Fla. Stat.

12 . A gencies must adopt , as rules, those statements

meetin g the definition of a rule . As set forth in section

120.54(1) :

(1)(a) Rulemaking is not a matter of

agency discretion. Each agency statement

defined as a rule by s. 120.52 shall be

adopted by the rulemaking procedure

provided by this section as soon as

feasible and practicable.

13 . When a person is substantially affected by an

unadopted rule, a remedy to challenge the application of the

unadopted rule is established in section 120.56(4), which

provides , in pertinent part , that :

(a) Any person substan tially affected by

an agency statement may seek an

administrative determination that the

statement violates s. 120.54(1)(a). The

petition shall include the text of the

statement or a description of the statement

and shall state with particularity facts

su fficient to show that the statement

constitutes a rule under s. 120.52 and that

the agency has not adopted the statement by

the rule making procedure provided by

s. 120.54.

* * *

(d) If an administrative law judge enters

a final order that all or part of an agency

statement violates s. 120.54(1)(a), the

agency must immediately discontinue all

reliance upon the statement or any

substantially similar statement as a basis

for agency action.

14 . Petitioner has the burden of demonstrating that the

agency statement regarding ÐliveaboardÑ vessels meets t he

definition of a rule , and that the agency has not adopted the

statement by rulemaking procedures. S.W. Fla. Water Mgmt. Dist.

v. Charlotte C n ty . , 774 So. 2d 903, 908 (Fla. 2d DCA 2001); see

also Ag. for P ers. with Disab. v. C.B. , 130 So. 3d 713, 717

(Fla. 1st DCA 2013) .

15 . The standard of proof is by a preponderance of the

evidence. § 120.56(1)(e), Fla. Stat.

16 . The parties have raised a number of issues in this

proceeding , including PetitionerÓ s standing; and the extent to

which a submerged land lease renewal is subject to notice,

publication, and ultimately challenge. However, even before

delving into a more comprehensive analysis, it is clear that the

Petition must be dismissed because Petiti oner has failed to prove

the fundamental issue of whether the alleged statement is one of

Ðgeneral a pplicability. Ñ

17 . An agency statement is Ðgenerally applicableÑ if it is

intended by its own effect Ð to create rights, or to require

compliance, or othe rwise have the direct and consistent effect

of law. Ñ Coventry First, LLC v. Of f . of Ins. Reg. , 38 So. 3d

200 (Fla. 1st DCA 2010) (quoting McDonald v. DepÓt of Banking &

Fin. , 346 So. 2d 569, 581 (Fla. 1st DCA 1977)). Furthermore:

Ð [a] n agency statement that either requires

compliance, creates certain rights while

adversely affecting others, or otherwise

has the direct and consistent effect of

law , is a rule. Ñ When deciding whether a

challenged action constitutes a rule, a

court analyzes the action's gen eral

applicability, requirement of compliance,

or direct and consistent effect of law.

Fla. Dep't of Fin. Servs. v. Cap. Collateral Reg'l Counsel

Middle Region , 969 So. 2d 527, 530 (Fla. 1st DCA 2007)

(citation s omitted) ; see also State Bd. of Admin. v. Huberty , 46

So. 3d 1144, 1147 (Fla. 1st DCA 2010).

18 . The evidence in this case as to the application of the

ÐliveaboardÑ statement is limited to its use in a single

submerged land lease. There was no evidence that the Board

uniformly requires the stat ement in all of its submerged land

leases, whether the statement is replicated in any other lease,

or whether the statement is a lease term that is subject to

negotiation. Thus, t here is no evidence that the alleged agency

statement has the direct and con sistent effect of law.

Therefore, Petitioner has failed to demonstrate the existence of

a n agency statement of Ð general applicabilityÑ that would be the

proper subject of a challenge under section 120.5 6(4) .

Based on the foregoing Findings of Fact and Co nclusions of

Law, it is ORDERED that the Petition Challenging Agency

Statement as Unadopted Rule is hereby DISMISSED.

DONE AND ORDERED this 2nd day of November , 2015 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARL Y

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 2nd day of November, 2015.

COPIES FURNISHED:

Enrique G. Esteve z

705 Canadice Lane

Winter Springs, Florida 32708

Glenn Wallace Rininger, Esquire

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth B oulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Jeff Brown, Esquire

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Lea Crandall, Agency Clerk

Departm ent of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Craig Varn, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealt h Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Jonathan P. Steve rson , Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Ernest Reddick, Chief

Department of Sta te

R.A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Alexandra Nam

Department of State

R.A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken P lante, Coordinator

Joint Admin Proce d Committed

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(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 the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings with in

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.