15-005817RU Majic Earth, Inc., A Florida Subchapter S Corporation David W. Weychert vs. Florida Department Of Agriculture Status: Closed DOAH Final Order on Thursday, November 19, 2015.

Summary: The rule challenge petition is dismissed because Petitioner is not challenging an existing rule or an unpromulgated rule, but is claiming the agency has misapplied a rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAJIC EARTH, INC., A FLORIDA

SUBCHAPTER S CORPORATION DAVID

W. WEYCHERT,

Petitioner,

vs. Case No. 15 - 5817RU

FLORIDA DEPARTMENT OF

AGRICULTURE,

Respondent.

_______________________________/

FINAL ORDER OF DISMISSAL

This cause came before the Administrative Law Judge on

RespondentÓs motion to dismiss. A response in opposition to the

motion was filed by Petitioner. The motion was denied, but the

parties were informed that th e case might be resolved if the

parties could stipulate to a material fact that was not made

clear in the petition for hearing. The parties then filed a

joint stipulation. A telephonic hearing was held on November 18,

2015.

Petitioner filed a Petit ion for Challenge of Rule. In the

petition, Petitioner did not state under what statutory authority

it was filing the challenge. The Clerk of the Division of

Administrative Hearings determined from a review of the petition

that it was intended to be a ch allenge to an agency statement

defined as a rule, which is authorized by section 120.56(4),

Florida Statutes (2015). The Clerk assigned the suffix ÐRUÑ to

the case, short for ÐRule Unpromulagated.Ñ The allegations of

the petition are ambiguous, but Petit ioner is clearly not

challenging the rule which is the focus of its argument, Florida

Administrative Code Rule 5E - 1.002(1), because Petitioner likes

this rule and believes it grants Petitioner a regulatory

exemption.

PetitionerÓs claims and arguments demo nstrate that it is

actually claiming that rule 5E - 1.002(1) was misapplied by

Respondent. Such a claim is not a rule challenge and, on that

basis alone, the petition can be dismissed. However, it is also

explained below why the petition must be dismissed because

RespondentÓs statement is not an unpromulgated rule.

Petitioner sells a product it calls Majic Earth, which

consists of earthworm castings. The agency statement that

Petitioner objects to is RespondentÓs statement that his product

is a fertiliz er and cannot be sold without complying with the

registering and labeling requirements for fertilizers.

Petitioner contends this agency statement is inconsistent with

rule 5E - 1.002(1), which Petitioner believes makes his product

exempt from the registerin g and labeling requirements of chapter

576, Florida Statutes.

Rule 5E - 1.002(1) provides an exemption from fertilizer

registering and labeling requirements for unmanipulated manures

(such as worm castings) :

Exemptions. Unmanipulated manures, by

Section 5 76.011(12), F.S., are exempted from

the provisions of Chapter 576, F.S., and

therefore, are not required to be registered,

labeled or meet any requirements of this

chapter.

Section 576.011(12), Florida Statutes, which is cited in the

rule, is the definiti on of ÐfertilizerÑ:

ÐFertilizerÑ means any substance which:

(a) Contains one or more recognized plant

nutrients and promotes plant growth; or

(b) Controls soil acidity or alkalinity; or

(c) Provides other soil enrichment; or

(d) Provides other corrective measures to the

soil.

For the purpose of this chapter, the term

Ðfertilizer Ñ does not include unmanipulated

animal or vegetable manures, peat or compost

which makes no claims as described in

paragraphs (a) Î (d).

Under this definition, an unmanipulated manure is a fertil izer

and is subject to registering and labeling requirements if it

makes any of the listed claims.

By joint stipulation, it was established that Petitioner

uses a product label that claims Majic Earth promotes soil

aeration and drainage, plant and root g rowth, seed germination,

reintroduction of vital microbes killed by chemicals, growth with

natural plant hormones, and water retention. By making these

claims, Petitioner has made Majic Earth meet the definition of

fertilizer in section 576.011(12) and ha s made the product

ineligible for the exemption stated in rule 5E - 1.002(1).

The issue is not whether Majic Earth is a good product or

whether the law should be changed. RespondentÓs statement that

Majic Earth is a fertilizer that must comply with regis tering and

labeling requirements is consistent with the plain meaning of

section 576.011(12) and rule 5E - 1.002(1). An agency statement of

how a statute or rule applies, which adds nothing to the plain

meaning of the statute or rule, is not a rule because such a

statement does not have any effect of its own on regulated

persons. See Amerisure Mutual Ins. Co. v. DepÓt of Fin. Servs. ,

156 So. 3rd 520, 532 (Fla. 1st DCA 2015). It is rule 5E -

1.002(1), itself, that has the effect Petitioner objects to.

T he deficiency in the petition cannot be cured by

amendment. Accordingly, it is

ORDERED that the petition for hearing is DISMISSED with

prejudice.

DONE AND ORDERED this 19th day of November , 2015 , in

Tallahassee, Leon County, Florida.

S

B RAM D. E. CANTER

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 19th day of November , 2015 .

COPIES FURNISHED:

David Weychert, Owner

Majic Earth, Inc.

19650 Red Maple Lane

Jupiter, Florida 33458

(eServed)

David W. Young, Esquire

Department of Agriculture and

Consumer Services

Mayo B uilding, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399

(eServed)

Stephen Donelan, Agency Clerk

Division of Administration

Department of Agriculture and

Consumer Services

Mayo Building, Suite 5 09

407 South Calhoun Street

Tallahassee, Fl orida 32399

(eServed)

Honorable Adam Putnam

Commissioner of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Lorena Holley, General Counsel

Department of Agriculture and

Consume r Services

Mayo Building, Suite 5 20

407 South Calhoun Street

Tallahassee, Florida 32399

(eServed)

Ernest Reddick, Chief

Alexander Nam

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

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 j udicial 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

D ivision 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 agenc y maintains its headquarters or where a party resides or

as otherwise provided by law.