21-001661RP Marine Industries Association Of Palm Beach County, Inc. vs. Florida Fish And Wildlife Conservation Commission Status: Closed DOAH Final Order on Thursday, November 4, 2021.

Summary: The Proposed Rule was based on the application of an unadopted rule regarding vessel traffic congestion. Commission directed to discontinue reliance on the unadopted rule.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ARINE I NDUSTRIES A SSOCIATION OF P ALM

B EACH C OUNTY , I NC . ,

Petitioner ,

Case No. 21 - 1661RP

vs.

F LORIDA F ISH A ND W ILDLIFE

C ONSERVATION C OMMISSION ,

Respondent .

/

F INAL O RDER

A final hearing in this case was conducted in this case on August 11, 2021,

by Zoom conference, before E. Gary Early, an administrative law judge with

the Division of Administrative Hearings (DOAH).

A PPEARANCES

For Petitioner: D. Kent Safriet, Esquire

Holtzman Vogel Baran Torchinsky

& Josefiak , PLLC

119 South Monroe Street, Suite 500

Tallahassee, Florida 32301

Joseph Alexander Brown, Esquire

Hopping Green & Sams, P.A.

119 South Monroe Street, Suite 300

Tallahassee, Florida 32301

For Respondent Rhonda E. Parnell, Esquire

Emily Norton, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

S TATEMENT O F T HE I SSUE S

The issues for disposition in this case are, first, whether the proposed

adoption of Florida Administrative Code R ule 68D - 24.017(1)(s) (the Proposed

Rule) was based on the application of an unadopted rule, as defined in section

120.52(20) , Florida Statutes , and, second, if it was not, whether the Proposed

Rule is an invalid exercise of delegated legislative authority, as defined in

section 120.52(8).

P RELIMINARY S TATEMENT

On May 21, 2021, Petitioner, Marine Industries of Palm Beach County,

Inc. (Petitioner), filed a Petition for Administrative Determination of

Invalidity of Proposed Rule 68D - 24.017(1)(s), Florida Administrative Code.

On May 26, 2021, a status conference was held at which both parties were

represented. During the status conference , Petitioner indicated that it had

filed a petition to initiate rulemaking with the Commission directed to an

alleged unadopted rule upon which the Proposed Rule was based. That

petition triggered a 30 - day response period within which the Commission

could initiate or decline rulemaking. By agreement of the parties, this case

was placed in abeyance until June 30, 2021.

On June 25, 2021, Petitioner filed an Unopposed Motion for Leave to File

First Amended Petition for Administrative Determination, along with the

First Amended Petition. The First Amended Petition raised the CommissionÔs

application of the term Ñvessel traffic congestion,Ò which was the basis for the

Proposed Rule, as being an unadopted rule. On June 30, 2021, the Unopposed

Motion was granted, and the First Amended Petition was accepted as

establishing the issues for disposition in this case.

By agreement of the parties, this case was bifurcated to allow for a

determination of whether the Florida Fish and Wildlife Conservation

CommissionÔs (Com mission or Respondent) application of the term Ñvessel

traffic congestionÒ as the basis for the Proposed Rule constitutes an

unadopted rule. The issue of whether the Proposed Rule enlarges, modifies,

or contravenes the specific provisions of law implemente d, or is arbitrary or

capricious, and is thus an invalid exercise of delegated legislative authority,

was to be deferred until disposition of the unadopted rule challenge. The

hearing on the unadopted rule challenge was scheduled for August 11, 2021 .

The parties filed their Joint Pre - hearing Stipulation as to the unadopted

rule challenge on August 9, 2021, in which they stipulated to nine facts that

would require no proof at hearing. Those facts have been incorporated herein.

The first phase of the final hearing was held on August 11, 2021, as

scheduled. Without objection, Joint Exhibits 1 and 2; PetitionerÔs Exhibits 1

through 8; and RespondentÔs Exhibits 1 through 4 were received in evidence.

PetitionerÔs Exhibit 7 is the Affidavit of Michael Kennedy, a member of

Petitioner and chair of its boating and legislative issues committee, who

provided, without objection, a sworn statement in lieu of live testimony in

support of PetitionerÔs standing. PetitionerÔs Exhibit 8 is the deposition

transcript of the Co mmissionÔs agency representative , Major Robert Rowe,

which is accepted as a party deposition. Both the Affidavit of Mr. Kennedy

and the deposition of Major Rowe were accepted and given weight as though

the statements therein were provided through live test imony at the hearing.

Respondent and Petitioner each listed Major Robert Rowe as their sole

live witness, and he was called to the stand and questioned by both.

The one - volume Transcript of the final hearing was filed on September 21,

2021. The parties , having requested 20 days from the filing of the transcript

within which to file post - hearing submittals, timely filed their post - hearing

submittals .

On October 20, 2021, an Interlocutory Order on Challenge to Unadopted

Rule and Order Requiring Status Re port (Interlocutory Order) was entered

which determined Ñ[t]hat the CommissionÔs reliance on the vessel traffic

congestion standards in rule 68D - 21.004(3)(c) as the basis for the Proposed

Rule constitutes an unadopted rule that violates section 120.54(1)(a ); and

that the Commission did not prove that rulemaking to adopt its own vessel

traffic congestion standards is not feasible or practicable. Ò The Interlocutory

Order also required that the parties confer with one another as to the

necessity of going forward with a hearing on the issue of whether the

Proposed Rule is an invalid exercise of delegated legislative authority .

On November 3, 2021, the parties filed a Joint Status Report indicating

Ñ that a secon d phase of the final hearing is unnecessary on the issue of

whether the RespondentÔs Proposed Rule - Florida Administrative Code Rule

68D24.017(1)(s) - is an invalid exercise of delegated legislative authority .Ò

The Joint Status Report further requested, i n a process described in the

Interlocutory Order, that the undersigned Ñ reissue its Interlocutory Order on

Challenge to Unadopted Rule as a Final Order with resultant rights of appeal

pursuant to section 120.68. Ò Finally, Petitioner requested that the

unde rsigned retain jurisdiction to determin e PetitionerÔs entitlement to an

award of reasonable attorneyÔs fees and costs pursuant to sections 120.595(2)

and 120.595(4), Florida Statutes , and concurrently filed a separate Motion for

Determination of Entitlemen t to AttorneyÔs Fees and Costs in Final Order

Pursuant to Section 120.595(4), Florida Statutes .

References to statutes are to Florida Statutes (2020), unless otherwise

noted.

F INDINGS O F F ACT

Stipulated Facts

1. The initial Petition in this case was filed on May 21, 2021 , and was

timely filed concerning the Proposed Rule.

2. The Proposed Rule relies on the CommissionÔs authority to establish

slow - speed boating restrictions based on Ñvessel traffic congestionÒ in section

327.46(1), Florida Statutes.

3. The Commission has adopted rules pursuant to chapter 120 that

interpret and implement the term Ñvessel traffic congestionÒ as such term is

used in section 327.46(1)(c) with regard to the establishment of slow - speed

boating - restricted areas by municipaliti es and counties.

4. The Commission has not adopted any rules pursuant to c hapter 120

that interpret and implement the term Ñvessel traffic congestionÒ as such

term is used in section 327.46(1), with regard to the establishment of slow -

speed boating - restric ted areas by the Commission. 1

5. Petitioner is a not - for - profit organization created to promote and protect

the sound growth of the marine industry in Palm Beach County for the

benefit and education of its members, the community, and the environment.

6. P etitioner also regularly advocates at the state and local level on issues

of importance to its members, including opposing legislation and rules that

negatively impact boating , such as unreasonable boating restrictions.

7. A substantial number of Petitione rÔs members, including individual

boaters and marine sector businesses, utilize waterways in Palm Beach

County including the area known as the Jupiter Narrows that is subject to

the Proposed Rule.

8. The Intracoastal Waterway (ICW) within Palm Beach County is

traversed frequently by many of PetitionerÔs members for business and

1 The Pre - hearing Stipul ation also included, as a stipulated fact, that Ñ[t]here is no statutory

mandate that the Commission must adopt such rules.Ò Counsel for Petitioner indicated that

was based on a misunderstanding of the scope of the stipulation, and it was withdrawn .

pleasure, including that portion of the ICW within the area known as the

Jupiter Narrows that is subject to the Proposed Rule.

9. PetitionerÔs members, as boaters, are regulated by t he Commission and

its rules regarding boating, including boating - restricted areas and slow - speed

zones as would be imposed by the Proposed Rule.

Facts Adduced at Hearing

10. The Proposed Rule, in its entirety, is as follows:

68D - 24.017 Palm Beach County B oating Restricted Areas.

(1) For the purpose of regulating speed and operation of vessel traffic on the Intracoastal Waterway

within Palm Beach County, Florida, the following boating restricted areas are established:

(s) Jupiter Narrows

300 feet north of the SR 707 Bridge to 4290 feet north of the SR 707 Bridge. A slow speed, minimum wake

zone to be in effect from 7:00 a.m. until 9:00 p.m. on Saturdays, Sundays, and those holidays identified in

Rule 68D - 23.103, in and adjacent to the Florida Intracoastal W aterway, shoreline to shoreline, bounded on

the south by a line drawn perpendicular to the centerline of the waterway 300 feet north of the centerline of

the SR 707 (Gomez Road) Bridge, and bounded on the north by a line drawn perpendicular to the centerli ne

of the waterway 4290 feet north of the SR 707 (Gomez Road) Bridge as depicted in drawing S.

Drawings A through R No change.

Rulemaking Authority 327.04, 327.302, 327.46 FS. Law Implemented 327.302, 327.46 FS. History Î New

10 - 6 - 10 , _______ .

11. The sole basis for the Proposed Rule was the CommissionÔs

determination that boating - restricted areas are necessary for the Jupiter

Narrows due to Ñvessel traffic congestion.Ò

12. The Commission has not adopted a rule by which it identifies

standards for Commission - adopted boating - restricted areas based on Ñvessel

traffic congestion.Ò Rather, Major Rowe testified that the Commission defines

Ñvessel traffic congestionÒ for Commission - adopted boating - restricted areas

by applying rule 68D - 21.004, entitled ÑCriteria for Approval of Ordinances.Ò

13. Rule 68D - 21.004(3)(c) establishes the means and the required data for

counties and municipalities to determine whether Ñunsafe levels of vessel

traffic congestion, seasonal or year - roundÒ warrant the adoption of local

ordinances establishing slow - speed boating - restricted areas. The data used to

determine vessel traffic congestion is specific and detailed. It is not simply an

application of the dictionary definition of Ñcongested.Ò Importantly, rule 68D -

21.004(3) (c) applies only to the establishment of local government ordinances.

The rule does not, either expressly or by implication, apply to Commission -

established boating - restricted areas.

14. Major Rowe testified that there is no bright - line rule for establishi ng

whether a waterway is subject to vessel traffic congestion, because

waterways are not uniform. Rather, they vary by width, depth, tidal

influence, time of day, and time of year, among other variables.

15. The ICW extends through the Jupiter Narrows, wit h shallower waters

extending to the shoreline on either side. Local governments do not have

jurisdiction to regulate vessel traffic in the ICW. Major Rowe testified that a

municipality requested that the Commission adopt a slow - speed rule for the

Jupiter N arrows ICW since the municipality could not. In addition, the

Commission received complaints from the public that boat traffic in the

Jupiter Narrows was a danger to swimmers and other vessels in the area,

though the nature and number of the complaints, in addition to their being

hearsay, was not specified.

16. Major Rowe testified that the Commission did not adopt a definition of

ÑtrafficÒ and Ñcongestion , Ò Ñbecause it would have to be so general that it

would be on the same level of what's already define d in the Webster's

dictionary. The characteristic of the water being so varied, it would be very

difficult, if not impossible, to have one single definition of congestion for every

waterway in the state.Ò Nonetheless, t he Commission was capable of

adopting Ñone single definition of congestionÒ that local governments must

apply for all of the various and varied waterways throughout the state.

Furthermore, the Commission applied rule 68D - 21.004(3)(c)Ôs Ñone single

definition of congestionÒ to determine that J upiter Narrows is experiencing

vessel traffic congestion, warranting adoption of the Proposed Rule.

17. In distinguishing how local governments are expected to determine

Ñvessel traffic congestionÒ from how the Commission is expected to determine

Ñvessel traffic congestion,Ò Major Rowe testified that section 327.46 does not

establish specific standards by which the Commission is to determine Ñvessel

traffic congestion.Ò Rather:

It allows the people who do this every day in the

FWC to make a decision based on what we do every

day as opposed to a municipality that they might do

this once every ten years. So, thatÔs why thereÔs a

rule for the municipalities and the counties is

because they are not in the waterway management

business every day. We are.

Thus, d espite previously admitting that the Commission applies the local

government vessel - congestion standards, Major Rowe testified that Ñwe used

our in - house expertise to make those determinations.Ò

18. The logical extension of the CommissionÔs position is t hat any agency

Ñin the businessÒ of implementing and applying its enabling statutes would

never have to adopt rules to govern and explain its actions since it operates

under its expertise of applying those statutes Ñevery day.Ò That is not a result

contemp lated or authorized by section 120.52(16) (ÑÓRuleÔ 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....Ò); section 120.54(1)(a) (Ñ 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.Ò); or section 120.57(1)(e)1. (ÑAn agency or an

administrative law judge may not base agency action that determines the

substantial interests of a party on an unadopted rule....Ò).

19. The evidence established that, despite its assertion that it is bound by

no obligation to adopt or comply with any writ ten and adopted standards, the

Commission has a policy by which it Ñholds itself to the same standardÒ that

has been adopted for municipal and county ordinances in rule 68D - 21.004 for

determining whether a waterway experiences vessel traffic congestion

suf ficient to warrant the creation of a boating - restricted area. That policy is

unwritten. Major Rowe testified that Ñ[i]t's the way we've always operated.

We've always used the rule that we developed for the cities and the counties

in order to use that as ou r standard as well. We feel like it's the fair thing to

do. That's the way we've always operated.Ò He further testified that all speed

zone rules have met the rule 68D - 21.004 standard. Thus, the evidence

established that the CommissionÔs application of the rule 68D - 21.004(3)(c)

local government standards is of general applicability.

20. The CommissionÔs policy of applying rule 68D - 21.004(3)(c) standards is

not adopted by rule, and is not otherwise available to the public in written

form. However, Major Rowe testified that persons interested in the issue

could simply call the Commission and find out how the Commission

determines vessel congestion. Although Major Rowe candidly admitted that,

depending on who answered the telephone, Ñ[t]hey would maybe get a

di fferent delivery and answer wouldn't be verbatim. It's not a script that they

would get that we used the rule that we've developed for the cities and

counties to apply to our own rulemaking,Ò he felt confident that anyone

inquiring would be able to ascerta in that the Commission uses the local

government rule to determine vessel congestion for the CommissionÔs

boating - restricted areas. Nonetheless, he agreed that the purpose of adopting

a rule is so that citizens do not have to call individual Commission emp loyees

to find out what standards the Commission applies to itself.

21. Major Rowe also indicated that the Commission had Ñdesk proceduresÒ

regarding how its planners process ordinances. Those desk procedures were,

at the time of the hearing, under develo pment, and do not address the

creation of boating - restricted areas. Such procedures were not well described,

and , in any event , are not generally available to the public.

22. The evidence was conclusive that the Commission has a policy by

which it applies rule 68D - 21.004 in adopting its boating - restricted areas. It

was equally conclusive that the policy is not written, and that the policy has

not been adopted as a rule by the Commission. The Commission relied

exclusively on the application of its policy to determine whether Jupiter

Narrows experienced vessel traffic congestion sufficient to warrant adoption

of the Proposed Rule.

23. Despite the variability in waterways, the Commission was able to

establish, by rule, statewide standards for counties and muni cipalities to

apply in determining whether waterways in their varying jurisdictions are

experiencing vessel traffic congestion. That is conclusive evidence that

rulemaking to adopt standards for the Commission to apply in determining

whether a waterway is experiencing vessel traffic congestion is feasible and

practicable under section 120.54(1)(a).

24. As to whether rulemaking is feasible, there is nothing to suggest that

the Commission has not had sufficient time to acquire the knowledge and

experience rea sonably necessary to address standards to determine vessel

traffic congestion by rulemaking; or that related matters are not sufficiently

resolved to enable the Commission to address standards to determine vessel

traffic congestion by rulemaking.

25. As to whether rulemaking is practicable to provide fair notice to

affected persons of Commission procedures and principles, criteria, or

standards for determining levels of vessel traffic congestion sufficient to

impose slow - speed boating - restricted areas, ther e is nothing to suggest that

detail or precision in the establishment of those principles, criteria, or

standards is not reasonable under the circumstances . Moreover, nothing

suggests that the particular questions addressed are of such a narrow scope

that more specific resolution of the matter is impractical outside of an

adjudication.

C ONCLUSIONS O F L AW

Jurisdiction

26. The Division of Administrative Hearings has jurisdiction of the subject

matter and the parties to this proceeding. §§ 120.56(4), 120.569 , and

120.57(1), Fla. Stat.

Standing

27. Section 120.56(4)(a) provides, in pertinent part, that Ñ[a]ny person

substantially affected by an agency statement may seek an administrative

determination that the statement violates s. 120.54(1)(a).Ò

28. In or der to demonstrate standing to challenge Respondent Ô s alleged

agency statements as unadopted rules, Petitioner must meet the two - pronged

test for standing in formal administrative proceedings established in the

seminal case of Agrico Chemical Co mpany v. De p artment of Env ironmen t a l

Reg ulation , 406 So. 2d 478 (Fla. 2d DCA 1981). In that case, the Court held

that:

We believe that before one can be considered to have

a substantial interest in the outcome of the

proceeding, he must show 1) that he will suffer an

injury in fact which is of sufficient immediacy to

entitle him to a section 120.57 hearing and 2) that

his substantial injury is of a type or nature which

the proceeding is designed to protect. The first

aspect of the test deals with the degree of injury. The

second deals with the nature of the injury.

Id. at 482. The standing requirements described in Agrico are applicable to

rule challenges, including unadopted rule challenges, brought pursuant to

section 120.56. Jacoby v. Fla. Bd. of Med. , 917 So. 2d 358, 360 (Fla. 1st DCA

2005).

29. The injury necessary to support standing cannot be speculative,

nonspecific, hypothetical, or lacking in immediacy or reality. All Risk Corp. of

Fla. v. State DepÔt of Labor & Emp. Sec., Div. of WorkersÔ Comp. , 413 So. 2d

1200, 1202 (Fla. 1st DCA 1982); Fla. DepÔt of Offender Rehab. v. Jerry , 353

So. 2d 1230, 1235 (Fla. 1st DCA 1978).

30. The standing requirement established by Agrico has been refined, and

now stands for the proposition that standing to initiat e an administrative

proceeding is not dependent on the ultimate success of the challenge to a

governmental action. Instead, standing requires proof that Petitioner has a

substantial interest and that the interest reasonably could be affected by the

propose d agency action. Whether the effect would constitute a violation of

applicable law is a separate question.

Standing is Ña forward - looking conceptÒ and Ñcannot

ÓdisappearÔ based on the ultimate outcome of the

proceeding.Ò ... When standing is challenged du ring

an administrative hearing, the petitioner must offer

proof of the elements of standing, and it is sufficient

that the petitioner demonstrate by such proof that

his substantial interests Ñ could reasonably be

affected by ... [the] proposed activities.Ò (emphasis in

original) .

Palm Beach Cnty . Envtl. Coal. v. Fla. DepÔt of Envtl. Prot. , 14 So. 3d 1076,

1078 (Fla. 4th DCA 2009)(citing Peace River/Manasota RegÔl Water Supply

Auth. v. IMC Phosphates Co . , 18 So. 3d 1079, 1083 (Fla. 2d DCA 2009) , and

Hamilto n Cnty . Bd. of Cnty . CommÔrs v. State DepÔt of Envtl. Reg. , 587 So. 2d

1378 (Fla. 1st DCA 1991)).

31. If the Proposed Rule is allowed to become effective, Petitioner and its

respective members would be governed by boat restrictions and speed zone

created b y the Proposed Rule, and therefore each is substantially affected in

a manner and degree sufficient to confer administrative standing in this case.

See, e.g., Abbott Labs. v. Mylan Pharms. , Inc. , 15 So. 3d 642, 651 n.2 (Fla. 1st

DCA 2009); Dep't of Prof' l Reg., Bd. of Dentistry v. Fla. Dental Hygienist

Ass'n , Inc. , 612 So. 2d 646, 651 (Fla. 1st DCA 1993); see also Cole Vision

Corp. v. Dep't of Bus. & Prof'l Reg. , Bd. of Optometry , 688 So. 2d 404, 407

(Fla. 1st DCA 1997)(recognizing that Ña less demanding s tandard applies in a

rule challenge proceeding than in an action at law, and that the standard

differs from the Ósubstantial interestÔ standard of a licensure proceeding.Ò).

32. Associations have standing to bring a rule challenge when:

a substantial numb er of [the associationÔs] members,

although not necessarily a majority, are

Ñsubstantially affectedÒ by the challenged rule.

Further, the subject matter of the rule must be

within the associationÔs general scope of interest and

activity, and the relief req uested must be the type

appropriate for a trade association to receive on

behalf of its members.

Fla. Home Builders AssnÔ v. DepÔt of Labor & Emp. Sec. , 412 So. 2d 351, 353 -

54 (Fla. 1982); see also NAACP, Inc. v. Bd. of Regents , 863 So. 2d 294, 298

(Fla. 2003).

33. Petitioner has standing to challenge the agency statement at issue as

an unpromulgated rule. Petitioner demonstrated that a substantial number

of its private and business sector members utilize waterways in Palm Beac h

County , including Jupiter Narrows, that is subject to the Proposed Rule.

PetitionerÔs boating members are regulated by the Commission and its rules

regarding boating, including boating - restricted areas and slow - speed zones

imposed by the Proposed Rule. T hus, Petitioner meets the Agrico immediate

injury prong. Petitioner also meets the second prong of the Agrico test, as it

and its members are within the zone of interest to be protected or regulated

by the boating - restricted areas and slow - speed zone rules for Jupiter

Narrows. Jacoby v. Fla. Bd. of Med. , 917 So. 2d at 360.

34. It is concluded that, based on the stipulated facts and the affidavit

filed by Mr. Kennedy, Petitioner meets the standards for associational

standing.

Burden of Proof

35. Petitioner has the burden of demonstrating that the agency statement

regarding Ñvessel traffic congestionÒ meets the definition of a rule, and that

the agency has not adopted the statement by rulemaking procedures. S.W.

Fla. Water Mgmt. Dist. v. Charlotte Cnty . , 774 So. 2d 903, 908 (Fla. 2d DCA

2001); see also Ag. for Pers. with Disab. v. C.B. , 130 So. 3d 713, 717 (Fla. 1st

DCA 2013).

36. The standard of proof is by a preponderance of the evidence.

§ 120.56(1)(e), Fla. Stat.

37. ÑA ÓpreponderanceÔ of the evide nce is defined as Óthe greater weight of

the evidence,Ô ... or evidence that Ómore likely than notÔ tends to prove a

certain proposition.Ò Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000)

(citations omitted).

38. Section 120.56(4)(c) provides that Ñ[i]f a hearing is held and the

petitioner proves the allegations of the petition, the agency shall have the

burden of proving that rulemaking is not feasible or not practicable under

s. 120.54(1)(a).Ò

39. Section 120.56(4)(e) provides that Ñ[i]f ... all or par t of an unadopted

rule violates s. 120.54(1)(a), the agency must immediately discontinue all

reliance upon the unadopted rule or any substantially similar statement as a

basis for agency action.Ò

Standards

40. Section 120.52(16) defines a rule, in pertin ent part, as:

... 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 solicits any

information not specifically required by statute or by

an existing rule.

41. Agencies must adopt, as rules, those statements meeting the definition

of a rule. Section 120.56(4)(g) provides that:

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.

1. Rulemaking shall be presumed feasible unless the

agency proves that:

a. The agency has not had sufficient time to

acquire the knowledge and experience

reasonably necessary to address a statement by

rulemaking; or

b. Related matters are not sufficiently resolved to

enable the agency to address a statement by

rulemaking.

2. Rulemaking shall be presu med practicable to the

extent necessary to provide fair notice to affected

persons of relevant agency procedures and

applicable principles, criteria, or standards for

agency decisions unless the agency proves that:

a. Detail or precision in the establishm ent of

principles, criteria, or standards for agency

decisions is not reasonable under the

circumstances; or

b. The particular questions addressed are of such

a narrow scope that more specific resolution of

the matter is impractical outside of an

adjudica tion to determine the substantial

interests of a party based on individual

circumstances.

42. An Ñ unadopted rule Ò 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 s ection 120.54. § 120.52(20), Fla. Stat.

43. An agency statement is Ñgenerally applicableÒ if it is intended by its

own effect to create rights, or to require compliance, or otherwise have the

direct and consistent effect of law. Coventry First, LLC v. Off. of Ins. Reg. ,

38 So. 3d 200 , 203 (Fla. 1st DCA 2010)(quoting McDonald v. DepÔt of Banking

& Fin. , 346 So. 2d 569, 581 (Fla. 1st DCA 1977)). Furthermore, Ñ[w] hen

deciding whether a challenged action constitutes a rule, a court analyzes the

action's general applicability, requirement of compliance, or direct and

consistent effect of law. Ò Fla. DepÔt of Fin. Servs. v. Cap. Collateral RegÔl

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

Volusia Cnty . Sch. Bd. v. Volusia Home Builders As sÔn, Inc. , 946 So. 2d 1084,

1089 (Fla. 5th DCA 2006).

44. It is well established that:

An agency statement that Ñimplements, interprets,

or prescribes law or policy or describes the procedure

or practice requirements of an agencyÒ is considered

a Ñrule.Ò S tatements that are rules cannot be

enforced unless they are formally adopted in

accordance with requirements set forth in chapter

120. If an agency statement meets the definition of

a rule, but hasn't been adopted as a rule under

chapter 120, then it is co nsidered an Ñunadopted

rule.Ò Agencies may not enforce an unadopted rule

against a party's substantial interests. (citations

omitted).

Grabba - Leaf, LLC v. DepÔt of Bus. & ProfÔl Reg. , 257 So. 3d 1205, 1208

(Fla 1st DCA 2018).

Analysis

45. Section 327.46( 1) provides for the establishment of:

Boating - restricted areas, including, but not limited

to, restrictions of vessel speeds and vessel traffic,

may be established on the waters of this state for any

purpose necessary to protect the safety of the public

if such restrictions are necessary based on boating

accidents, visibility, hazardous currents or water

levels, vessel traffic congestion , or other navigational

hazards or to protect seagrasses on privately owned

submerged lands. (emphasis added).

46. Section 327.46(1)(a) provides that the Commission Ñmay establish

boating - restricted areas by rule pursuant to chapter 120.Ò Though the

Commission has established numerous boating - restricted areas, it has not set

forth standards by which it determines wheth er cause exists for the

designation of such areas, and particularly whether those areas suffer from

vessel traffic congestion.

47. Section 327.46(1)(c)2.b. provides that:

Municipalities and counties have the authority to

establish by ordinance the followin g other boating -

restricted areas:

* * *

2. An ordinance establishing a slow speed, minimum

wake, or numerical speed limit boating - restricted

area if the area is:

* * *

b. Subject to unsafe levels of vessel traffic

congestion.

48. In order to implement section 327.46(1)(c)2.b., the Commission

adopted rule 68D - 21.004(3)(c), which, at the time the Proposed Rule was

adopted, provided extensive and detailed standards and a procedure by which

local governments may determine if a loca l water body is Ñ[s]ubject to unsafe

levels of vessel traffic congestion, seasonal or year - round,Ò thus warranting

Ñ[a]n ordinance establishing a Óslow speed, minimum wakeÔ boating - restricted

area or numerical speed limit boating - restricted area.Ò

49. The Proposed Rule was adopted based solely on the CommissionÔs

determination that Jupiter Narrows was subject to unacceptable levels of

vessel traffic congestion.

50. In adopting the Proposed Rule, the Commission relied exclusively on

rule 68D - 21.004(3)(c) l ocal government standards for determining the degree

of vessel traffic congestion warranting local speed zone ordinances as

support. Rule 68D - 21.004(3)(c) is, on its face, inapplicable to boating -

restricted areas established by the Commission.

51. To parap hrase the First District Court of AppealÔs opinion in Florida

Quarter Horse Track Association , Inc. v. Department of Business and

Professional Regulation , 133 So. 3d 1118, 1119 - 20 (Fla. 1st DCA 2014) , so as

to make that opinion analogous to the facts of th is case:

A policy which allows [the Commission to establish

boating - restricted areas] by deeming that activity

[to be subject to local government vessel traffic

congestion standards] is without question a

statement of general applicability having the force

and effect of law. Florida administrative law does

not allow an agency to establish such a policy

stealthily È; this is equally true whether the policy

is highly controversial or widely praised. To be legal

and enforceable, a policy which operates as law must

be formally adopted in public, through the

transparent process of the rulemaking procedure set

forth in section 120.54.

52. Based on the Findings of Fact, and for the reasons set forth herein, the

vessel traffic congestion standards upon which the Pr oposed Rule is

predicated, which have not been adopted by rule despite the clear ability to

do so, are ÑrulesÒ as defined in section 120.52(16), and are Ñunadopted rulesÒ

under section 120.56(4). Furthermore, rulemaking to adopt standards

applicable to Com mission - established boating - restricted areas is both feasible

and practicable.

O RDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

O RDERED

1. That the CommissionÔs reliance on the vessel traffic congestion

standards in rule 68D - 21.004(3)(c) as the basis for the Proposed Rule

constitutes an unadopted rule that violates section 120.54(1)(a); and that the

Commission did not prove that rulemaking to adopt its own vessel traffic

congestion standards is not feasible or practicable.

2. Pursuant to section s 120. 56(4)(e) and 120.5 7(1)(e)1., the Commission

must immediately discontinue reliance upon the unadopted vessel traffic

congestion rule and any substantially similar statement until rules

addressing the subject are properly adopted .

3. PetitionerÔs Motion for Determination of Entitlement to AttorneyÔs Fees

and Costs in Final Order Pursuant to Section 120.595(4), Florida Statutes ,

has been opened as a new case, DOAH Case No. 21 - 3366F , and further

proceedings shall be governed by the Notice entered in the docket of that

case.

D ONE A ND O RDERED this 4th day of November , 2021 , in Tallahassee, Leon

County, Florida.

S

E. G ARY E ARLY

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of November, 2021.

C OPIES F URNISHED :

D. Kent Safriet, Esquire Joseph Alexander Brown, Esquire

Holtzman Vogel Baran Torchinsky Hopping Green & Sams, P.A.

& Josefiak PLLC Suite 300

Suite 500 119 South Monroe Street

119 South Monroe Street Tallahassee, Florida 32301

Tallahassee, Florida 32301

Emily Norton, General Counsel

Rhonda E. Parnell, Esquire Florida Fish & Wildlife

Florida Fish and Wildlife Conservation Commission

Conservation Commission Bryant Building

620 South Meridian Street 620 South Meridian Street

Tallahassee, Florida 32399 Tallahassee, Florida 32399 - 1050

Ken Plante, Coordinator Anya Owens, Program Administrator

Joint Administrative Procedural Margaret Swain

Committee Florida Administrative Code

Room 680, Pepper Building & Register

1 11 West Madison Street Department of State

Tallahassee, Florida 32399 - 1400 R.A. Gray Building

500 South Bronough Stree t

Tallahassee, Florida 32399 - 0250

N OTICE O F R IGHT T O J UDICIAL R EVIEW

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 within 30 days of

rendition of the order to be reviewed, and a copy of the notic e, 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.