21-001662RP Marine Industries Association Of Palm Beach County, Inc. vs. Florida Fish And Wildlife Conservation Commission Status: Closed DOAH Final Order on Monday, September 20, 2021.

Summary: Proposed Rule 68D-21.001(3)(e)4.a., which defined launching and landing facilities to support the establishment of boating-restricted areas contravened the specific provisions of section 327.46(1)(b)1.a.

S TATE O F F LORIDA

D IVISION O F A DMINISTRATIVE H EARINGS

M ARINE I NDUSTRIES A SSOCIATION O F

P ALM B EACH C OUNTY , I NC . ,

Petitioner,

vs. Case N o. 21 - 1662 RP

F LORIDA F ISH A ND W ILDLIFE

C ONSERVATION C OMMISSION ,

Respondent.

________________________ ________ ____/

F INAL O RDER

A final hearing was conducted in this case on July 16, 2021, in

Tallahassee, Florida, before E. Gary Early, an administrative law judge with

the Division of Administrative Hearings.

A PPEARANCES

For Petitioner: D. Kent Safrie t, Esquire

Ho ltzman Vogel Baran Torchinsky

& Josefiak PLLC

119 South Monroe Street, Suite 500,

Tallahassee, F lorida 32301

Joseph Alexander Brown, Esquire

Hopping Green & Sams, P.A.

119 South Monroe Street, Suite 300

Tallahassee, Fl orida 32301

For Respondent: Rhonda E. Parnell, Esquire

Emily Norton, Esquire

Florida Fish and Wildlife

Conservation Commission

620 S outh Meridian Street

Tallahassee, Florida 32399 - 1600

S TATEMENT O F T HE I SSUE

The issue for disposition in t his case is whether the proposed amendment

of rule 68D - 21.001(3)(e)4.a. (Proposed Rule) enlarges, modifies, or

contravenes the specific provisions of the law implemented and , therefore ,

constitutes an invalid exercise of delegated legislative authority , as defined in

section 120.52(8) (c) , Florida Statutes.

P RELIMINARY S TATEMENT

On May 21, 2021 , Petitioner, Marine Industries Association of Palm

Beach County, Inc. ( Association or Petitioner), filed a Petition for

Administrative Determination of Invalidity of Proposed Rule 68D - 21.001,

Florida Administrative Code (Petition) .

The final hearing was scheduled for July 16, 2021. The parties filed their

Joint Pre - hearing Stipulation on July 13, 2021 , in which the y stipulated to

10 facts that would require no pro of at hearing. Those facts have been

incorporated herein. The Joint Pre - hearing Stipulation also identified, as an

issue of law for determination, Ñ[w] hether the CommissionÔs proposed rule È

enlarges, modifies, or contravenes the specific provisions of sec tion

327.46(1)(b)1.a., Florida Statutes, that it implements , and , therefore ,

constitutes an invalid exercise of delegated legislative authority. Ò

The final hearing was held on July 16, 2021 , as scheduled. At the

commencement of the hearing, the Florida Fi sh and Wildlife Conservation

Commission (C ommission ) raised the issue of the ripeness of PetitionerÔs

challenge to the Proposed Rule on the ground that no local government had,

as yet, implemented the Proposed Rule to request and be granted a no - wake

zone around a Ñ launching or landing facility Ò as newly de scribed . That issue

is addressed in the Conclusions of Law.

PetitionerÔs Exhibits 1 through 21, and RespondentÔs Exhibits 1 through 6

were received in evidence. PetitionerÔs Exhibit 1 is the deposition t ranscript

of the Commission Ôs representative , Major Robert Rowe , and was offered,

without objection, to minimize the necessity of extensive examination at the

hearing . RespondentÔs E xhibit 20 is an Affidavit of Michael Kennedy, a

member of Petitioner and c hair of its boating and legislative issues

committee, who provided , without objection, a sworn statement in lieu of live

testimony in support of PetitionerÔs standing. Both the deposition of Major

Rowe, and the Affidavit of Mr. Kennedy were accepted and gi ven weight as

though presented live at the hearing.

Respondent and Petitioner each listed Major Rowe as a witness, and he

was called to the stand and questioned by both. No other witnesses were

called.

The one - volume Transcript of the final hearing was filed on August 9,

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

within which to file post - hearing submittals, both filed their P roposed F inal

O rders on August 30, 2021 , which have been considered in the preparation of

this Final Order. References to statutes are to Florida Statutes (20 20 ), unless

otherwise noted.

F INDINGS O F F ACT

Stipulated Facts

1. The P etition in this case was filed on May 21, 2021, within 10 days of

the CommissionÔs final public hearing held on May 12, 2021 , concerning the

Proposed Rule .

2. The P etition in this case was also filed within 20 days of the

CommissionÔs notice of proposed change published on May 19, 2021 ,

concerning the Proposed Rule .

3 . The Proposed Rule interprets Ñother launching or landi ng facilityÒ in

section 327.46(1)(b)1.a., Florida Statutes, to include launching or landing

facilities intended for hand - launched, non - motorized watercraft like kayaks

or paddleboards, including mats placed o n the ground similar to the

following:

4 . The Proposed Rule interprets Ñother launching or landing facilityÒ in

section 327.46(1)(b)1.a., to include designated unimproved areas intended for

hand - launched, non - motorized watercraft like kayaks or paddleboards in

parks that have permanently installed pu blic parking and restrooms.

5 . The portion of the Proposed Rule interpreting Ñother launching or

landing facilityÒ in section 327.46(1)(b)1. a ., to include designated unimproved

areas intended for hand - launched, non - motorized watercraft like kayaks or

paddl eboards in parks that have permanently installed public parking and

restrooms would potentially have the effect of allowing for establishment of

more idle - speed, no wake boating - restricted areas, around areas used

primarily or solely for non - motorized wate rcraft.

6 . The Association 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.

7 . The Association als o 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.

8 . A substantial number of the AssociationÔs memb ers, including

individual boaters and marine sector businesses, utilize waterways in Palm

Beach County.

9 . The Intracoastal Waterway, within Palm Beach County, is traversed

frequently by many of the AssociationÔs members for business and pleasure.

10 . The AssociationÔs members, as boaters, are regulated by the

Commission and its rules regarding boating, including boating - restricted

areas.

The Proposed Rule

11 . The full text of the P roposed R ule , as set forth in the Notice of Change

published in the Florida Administrative Register, Vol. 47, No. 97, May 19,

2021, is as follows:

NOTICE OF CHANGE

Notice is hereby given that the following changes have been made to the proposed rule in accordance with

subparagraph 120.54(3)(d)1., F.S., published in Vol. 47 No. 10, January 15, 2021 issue of the Florida

Administrative Register.

68D - 21.001 Requirements for Applications .

(1) through (2) No change.

(3) Each application must include:

(a) through (d) No change.

(e) One or more scaled drawings no larger than 8 1/2 inc hes by 11 inches, reproducible in black and

white on standard office photocopying equipment which clearly show the following:

1. through 3. No change.

4. The location of any of the following within a proposed boating - restricted area or used as a basis for

establishing a boating restricted area, identified with a label or legend as to whether or not it is available for

use by the general public:

a. Any boat ramp, hoist, marine railway, or other launching or landing facility. For purposes of this

Chapter, and in interpreting s. 327.46, F.S., a Ðlaunching or landing facilityÑ shall be any improvement built

or installed upon land that facilitates the transitioning of a vessel transitioning from the land to the water or

from water to land and vice versa . A Ðlaunc hing or landing facilityÑ shall also include an unimproved

vessel launching or landing area if such area is located within a state, county or municipal park, and the

park includes both permanently installed public restrooms and public parking, and the unim proved vessel

launching or landing area is identified and designated for such use by the park. A Ð launching or landing

facility Ñ shall not include any amenity built or placed near or adjacent to the water which does not facilitate

the transitioning of a ve ssel transitioning from the land to water, or from water to land, or an unimproved

vessel launching or landing area that does not meet the requirements provided herein .

b. through d. No change.

5. through 7. No change.

(f) through (k) No change.

(4) through (5) No change.

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

10 - 6 - 10 , Amended ________ .

12 . The Proposed Rule implements section 327.46(1)(b)1.a., which allows

counties and municipalities to es tablish idle speed, no wake , boating -

restricted areas to extend 500 feet in each direction around Ñany boat ramp,

hoist, marine railway, or other launching or landing facility available for use

by the general boating public.Ò (emphasis added).

13. The Comm issionÔs goal in developing the Proposed Rule was to provide

a clear interpretation of a launching or l anding facility . In establishing its

definition, the Commission went Ñ back and forth Ò with municipalities and

counties that were applying for restricted boating zones, and to Ñ get them on

board with what [the CommissionÔs] legal interpretation was of a Ó facility. ÔÒ

14 . T he second sentence of the Proposed Rule defines Ñother launching o r

landing facilityÒ as Ñany improvement , built or installed upon land ,

r egardless of its location , that facilitate s the launching or landing of vessels . Ò

The amendment of that second sentence is essentially cosmetic, making little

substantive change to the meaning or scope of the existing rule.

15 . The third sentence of the Pr oposed Rule , which is entirely new, defines

Ñother launching or landing facilityÒ to also include Ñ an unimproved vessel

launching or landing area Ò located in a public park with permanent public

restrooms and public parking. The Commission does not require u nimproved

areas to have any physical indicia of their suitability for launching or

landing, as long as they are Ñ designated Ò for such use. With regard to

unimproved vessel launching or landing area s, the Commission has taken the

position that the public p ark itself is the Ñ facility, Ò rather than any area

designed to facilitate launching or landing.

Issues for Disposition

16 . Section 120.56(2)(a) provides that Ñthe agency has the burden to prove

by a preponderance of the evidence that the Proposed Rule is not an invalid

exercise of delegated legislative authority as to the objections raised.Ò

17 . The Ñobjections raised , Ò as identified in the Joint Pre - hearing

Stipulation , are those that remain for disposition in this proceeding, with

issues not preserved h aving been waived. See Palm Beach Polo Holdings, Inc.

v. Broward Marine, Inc. , 174 So. 3d 1037 (Fla. 4th DCA 2015).

18 . As set forth in the Joint Prehearing Stipulation, the following are at

issue:

a. The meaning of ÑvesselÒ and ÑboatÒ as used in the

Flori da Constitution and Chapter 327, Florida

Statutes.

b. The meaning of Ñany boat ramp, hoist, marine

railway, or other launching or landing facility

available for use by the general boating public . . . .Ò

as used in section 327.46(1)(b)1.a., Florida

Statut es.

c. Whether the CommissionÔs proposed rule section

68D - 21.001(3)(e)4.a. of the Florida Administrative

Code enlarges, modifies, or contravenes the specific

provisions of section 327.46(1)(b)1.a., Florida

Statutes, that it implements and therefore

consti tutes an invalid exercise of delegated

legislative authority.

19 . The Proposed Rule, on its face, does not directly include or exclude

hand - lau nched, non - motorized watercraft, such as canoes, kayaks , or

paddleboards, from the class of vessels for which la unching or landing

facilities are intended. However, the Commission stipulated that the

Proposed Rule interprets Ñother launching or landing facilityÒ in section

327.46(1)(b)1.a., to include areas intended for hand - launched, non - motorized

watercraft . Thus, the issue of the interpretation of whether Ñ hand - launched,

non - motorized watercraft like kayaks or paddleboards Ò are ÑvesselsÒ has ,

thus , been placed squarely at issue.

Facts Adduced at Hearing

Vessels

20 . Watercraft excluded from registration and paymen t of fees include

Ñ[a] non - motor - powered vessel less than 16 feet in length or a non - motor -

powered canoe, kayak, racing shell, or rowing scull, regardless of length. Ò

§ 328.48(2)(d), Fla. Stat.

21 . By statute, a non - motorized vessel less than 16 feet in l ength is not

taxed or subject to registration unless a motor is placed on it.

22 . Major Rowe testified that Ñ[a] boat is a vessel, not all vessels are

boats.Ò He further expressed the CommissionÔs interpretation of the term

ÑvesselÒ as being Ñall manner of water craft thatÔs capable of being used as

transportation upon the waters of the state.Ò

23 . Canoes, kayaks, paddleboards, small sailboats, and similar manually

or wind - powered watercraft are capable of being used as transportation upon

the waters of the state.

Launching or Landing Facility

24 . The reason for designating a no - wake or idle - speed zone within

500 feet of a launching or landing facility is because operators who are

launching vessels may be in a v ulnerable position while launching and

loading the craft. The Commission wants to make sure Ñthere's not excessive

wake that could come by and knock them down or, you know, pinch them

between the vessel and the trailer or depending on what -- how they're

loading in, so that's what that idle speed is f or is to make it safe for them to

launch and load the vessel. Ò

a. An i mprovement b uilt or i nstalled u pon l and

25 . Section 327.46(1)(b)1.a. lists three specific types of facilities that

warrant the establishment of boating - restricted areas within 500 feet.

26 . The first listed facility is a boat ramp. A boat ramp is , as described by

Major Rowe:

a n improved surface, mostly it is for launching

motorized vessels in the state. You know, you can

think of a concrete boat ramp and they vary in size

from a single lane to multiple lane facilities. There

is an organization called the State Organization of

Boating Access that has standards for building

those types of boat ramps, and [the Commission]

follow [s] that when we do those boating access

projects. So that's wh at a boat ramp is.

27 . A hoist is a vessel launch that is regulated by the Commission.

Petitioner Ôs Exhibit 18 was acknowledged to be representative of a boat hoist,

which is a d evice that lifts a boat from the water .

28 . A marine railway is Ña railway t hat's along the water front; it has

facilities for loading and unloading of cargo, usually from ships.Ò The

photograph received as PetitionerÔs Exhibit 19 demonstrates that a marine

railway is also used for launching and landing vessels.

29 . The common el ement of the three statutorily listed facilities is that

they are constructed for the specific purpose of functioning as a boat

launching and landing facility, that they involve a degree of construction or

installation, and that they are fixed and permanen t.

30 . One reason for the establishment of vessel restrictions around such

facilities is that, with a hoist or a trailered boat that is too large to carry by

hand, wakes from vessels may throw the boat off the trailer, run it into the

trailer, damage the v essel , or injure people .

31 . The Proposed Rule encompasses an interpretation of launching or

landing facility that is facially consistent with the statutorily listed facilities,

i.e. Ð any improvement built or installed upon land .Ò That description would

en compass fixed structures installed on land to facilitate the transitioning of

vessels, such as the structure for hand - launched vessels depicted in

RespondentÔs Exhibit 2.

32 . Where the Commission has veered away from fixed, permanent

structures similar to those listed by the Legislature , its position is that e ven

the slightest amount of shoreline work makes a facility ÑimprovedÒ if it has

the effect of making it easier to launch a vessel.

33 . The Commission construes the Proposed Rule to include general

s horeline stabilization that also creates an opening for launching vessels to

be an Ñimprovement built or installed upon land.Ò Furthermore, a ÑMobi -

Mat,Ò which is a durable fabric mat placed on the shoreline , would potentially

be an improvement built or in stalled upon land sufficient to constitute a

launching or landing facility . When shown a photograph of a Mobi - Mat

( PetitionerÔs Exhibit 7; see also RespondentÔs Exhibit 6) , Major Rowe

acknowledged that such are designed for wheelchair and public access to the

water. However, he indicated that Ñ you could use that material and designate

it as a launch for the launching of canoes, kayaks, non - motorized vessels, and

then it would become a facility ... [but] a walk - way into the water that's not

designated as a b oat launch wouldn't become a facility, and it would just be a

walk - way into the water. Ò The same rationale was expressed for concrete

steps with a handrail leading to the water (RespondentÔs Exhibit 5). Though

there was nothing by their appearance to sugge st that the concrete steps

served any purpose other than normal pedestrian access, Major Rowe

testified that it would , upon Ñdesignation,Ò be considered to be Ñ an

improvement that is there for the purpose of launching a kayak [or] stand - up

paddle board .Ò

3 4 . If any structure used to provide shoreline stabilization or facilitate

pedestrian access to the water is, as asserted by the Commission, sufficient to

constitute a launching and landing facility, there would have been no purpose

for the Legislature to p rovide examples of the types of facilities that would

warrant the creation of a boating - restricted area. P edestrian stairs,

stabilizing timbers, and wheelchair and public access matting bear no

resemblance to, and are not in the same class of legislatively listed boat

ramps, hoists, and marine railways used to serve Ñthe boating public.Ò

b. An unimproved area in a public park

35 . The third sentence of the Proposed Rule covers unimproved launches

intended to be specific to non - motorized or human - powered v essels . Major

Rowe indicated that s uch might include Ñ an unimproved ramp, it can be a

dirt surface as well. We call those primitive boat ramps. Ò In a park , in which

Ñ there may be a piece of sand and nothing else, Ò he propounded that Ña patch

of dirt is the best launching surface to launch these types of [hand - launched]

crafts.Ò

36 . The CommissionÔs purpose in including parks as a Ñ facility Ò was that

there is often no ÑimprovementÒ to constitute a launching or landing facility

available to the general boati ng public. In such instances, Ñthe park becomes

the improvement.Ò Thus, in public parks with no improvements, the

Commission determined that Ñ a place to park your car that you use to

transport the vessel to the park is ... facilitating the launch. Ò

37 . Ev en when there is no improvement to constitute a launching or

landing facility, Ñ because the statute stipulated a facility, [the Commission

was] trying to broaden that in a way that would make it clear what would

qualify as a facility and what would not.Ò T o implement that goal, the

municipal or county park is considered to be the launching or landing facility ,

and Ñ[t]hat's what [the Commission is] hanging our hat on.Ò

38 . It is not the purpose of rulemaking to extend or broaden the reach of

delegated legi slative authority. There is absolutely no similarity between

boat ramps, hoists, and marine railways , and a bare patch of earth or break

in shoreline vegetation, regardless of the presence of nearby parking lots or

restrooms. Public parks have no inherent association with boat launching.

The CommissionÔs effort to ÑbroadenÒ the meaning of a Ñlaunching or landing

facility available for use by the general boating publicÒ to include essentially

any patch of earth at a public park, whether recognizable as a lau nch or not,

so long as a sign is posted ÑdesignatingÒ it as such , goes well beyond any

reasonable construction of section 327.46. There must be some relationship

between the rule and its enabling legislation. Here, there is none.

C ONCLUSIONS O F L AW

Juri sdiction

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

matter and the parties to this proceeding. § 120.56 (1) and (2) , Fla. Stat.

Standing

40 . Section 120.56(1)(a) provides that Ñany person substantially affected

by ... a proposed rule may seek an administrative determination of the

invalidity of the rule on the ground that the rule is an invalid exercise of

delegated legislative authority.Ò

41 . In order to demonstrate that a person is Ñsubstantially affected,Ò that

person must establish Ña real and sufficiently immediate injury in factÒ and

that the interest involved is within the Ñzone of interest to be protected or

regulated.Ò See Ward v. Bd. of Trs. of the Int. Imp. Trust Fund , 651 So. 2d

1236, 1237 (Fla. 4th DCA 1995).

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

a substantial number of [the associationÔs]

members, although not necessarily a majority, are

Ñsubstantially affectedÒ by the challenged rule.

Further, the subject matter of the rule must b e

within the associationÔs general scope of interest

and activity, and the relief requested must be the

type appropriate for a trade association to receive

on behalf of its members.

Fl a. Home Builders Ass Ô n v. DepÔt of Labor and 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).

43 . As stipulated and set forth in Findings of Fact 6 through 10, 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. Petitioner

regularly advocates at the state and local level on issues of importance to its

members, including opposing legislation a nd rules that negatively impact

boating , such as un reasonable boating restrictions. A substantial number of

PetitionerÔs members, including individual boaters and marine sector

businesses, utilize and traverse w aterways in Palm Beach County for

business an d pleasure.

44 . If allowed to become effective, Petitioner and its members would be

governed by the effect of the Proposed Rule allowing municipal and county

governments , including those in Palm Beach County, to establish , as a

matter of right , boating reg ulations and restrictions within 500 feet of any

vessel launching or landing facility described under 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 Ô t of Prof Ô l Reg.,

Bd. of Dentistry v. Fla. Dental Hygienist Ass Ô n , 612 So. 2d 646, 651 (Fla. 1st

DCA 1993); see also Cole Vision Corp. v. Dep Ô t of Bus. & Prof Ô l Reg ., Bd. of

Optometry , 688 So. 2d 404, 407 (Fla. 1st DCA 1997)(recognizing that Ña less

demanding standard 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 pro ceedingÒ).

45 . Based on the record of this proceeding, Petitioner meets the standards

for associational standing.

Burden of Proof

46 . In its challenge to the Proposed Rule , P etitioner has the burden to

prove , by a preponderance of the evidence , that it i s substant ially affected by

the Proposed Rule , and the Commission then has the burden of proving by a

preponderance of the evidence that the Proposed Rule is not an invalid

exercise of delegated legislative authority as to the objections raised.

§ 120.56( 2)(a), Fla. Stat.

47 . The preponderance of the evidence standard Ñis defined as Óthe greater

weight of the evidence,Ô Black's Law Dictionary 1201 (7th ed. 1999), or

evidence that Ómore likely than notÔ tends to prove a certain proposition.Ò

Gross v. Lyon s , 763 So. 2d 276, 2 7 9 n.1 (Fla. 2000) ; s ee also Haines v. DepÔt of

Child. & Fams. , 983 So. 2d 602, 606 (Fla. 5th DCA 2008).

48 . Petitioner met its burden of demonstrating that it is substantially

affected by the Proposed Rule .

49 . When a substantially af fected person seeks a determination of the

invalidity of a proposed rule pursuant to section 120.56(2), the proposed rule

is not presumed to be valid or invalid. § 120.56(2)(c), Fla. Stat.

Ripeness

50 . The Commission has asserted that this case is not Ñri peÒ because no

boating - restricted area has been proposed or approved pursuant to the

Proposed Rule.

51 . Section 120.56(1)(a) provides that :

A ny person substantially affected by ... a proposed

rule may seek an administrative determination of

the invalidit y of the rule on the ground that the

rule is an invalid exercise of delegated legislative

authority.

52 . Section 120.56(2)(a) further provides:

A petition alleging the invalidity of a proposed rule

shall be filed within 21 days after the date of

publicati on of the notice required by s. 120.54(3)(a).

... The petitioner has the burden to prove by a

preponderance of the evidence that the petitioner

would be substantially affected by the proposed

rule. The agency then has the burden to prove by a

preponderance of the evidence that the proposed

rule is not an invalid exercise of delegated

legislative authority as to the objections raised.

53 . Proposed rules, by their very nature, have not been implemented.

Rather, the only question is whether Petitioner has sta nding to challenge the

P roposed R ule, i.e., whether Petitioner and its members will be substantially

affected by the rule. There is no requirement that any action has already

been taken under the P roposed R ule .

54 . It has long been established that

The APA does not withhold judicial review of a new

rule until an affected party at its peril violates the

rule and thereby induces agency proceedings under

Section 120.57 to punish for offending conduct. One

who is prospectively affected by an adopted rule

may ch allenge it administratively as Ñan invalid

exercise of delegated legislative authority,Ò obtain a

ruling by a DOAH hearing officer, and promptly

seek judicial review of that Ñfinal agency action.Ò

4245 Corp., MotherÔs Lounge, Inc. v. Div. of Bev. , 348 So. 2d 934, 936 (Fla. 1st

DCA 1977).

55 . Here, there is no dispute that the Proposed Rule would be applicable

to waterways in Palm Beach County . T he AssociationÔs testimony that the

Proposed Rule Ñwill have drastic and unintended consequences on the

Associat ionÔs members in and around Palm Beach County and across the

state by needlessly increasing boating restricted zonesÒ was uncontested.

56 . Based on the foregoing and the record in this case, the CommissionÔs

attempt to inject an element of ÑripenessÒ as a defense to this rule challenge

proceeding is rejected.

Rulemaking Standards

57 . As set forth in the Joint Pre - hearing Stipulation, Petitioner argues

that the Proposed Rule Ñenlarges, modifies, or contravenes the specific

provisions of section 327.46(1)(b )1.a., Florida Statutes, that it implements . Ò

Section 120.52(8) defines an Ñinvalid exercise of delegated legislative

authority.Ò The provision at issue in this proceeding is as follows:

(8) ÑInvalid exercise of delegated legislative

authorityÒ means acti on that goes beyond the

powers, functions, and duties delegated by the

Legislature. A proposed or existing rule is an

invalid exercise of delegated legislative authority if

any one of the following applies:

* * *

(c) The rule enlarges, modifies, or c ontravenes the

specific provisions of law implemented, citation to

which is required by s. 120.54(3)(a)1. ...

Ejusdem Generis

58 . As applied to the term Ñother launching or landing facilitiesÒ which

follows the three legislatively listed examples, i t is well established that :

the statutory and constitutional construction

principle of ejusdem generis - which is a Latin term

for Ñof the same kindÒ - is instructive on this issue.

Distilled to its essence, this rule provides that

where general words or phrase s follow an

enumeration of specific words or phrases, Ñ the

general words are construed as applying to the

same kind or class as those that are specifically

mentioned. Ò (citation s omitted).

In re Advisory Opinion to Atty. Gen. re Use of Marijuana for Cert ain Medical

Conditions , 132 So. 3d 786, 801 ( Fla. 2014 ). As further explained by the

Supreme Court, Ñ the canon of ejusdem generis itself is predicated upon the

concept that a general category following an enumeration of specific words or

phrases should be construed Ó similarly Ô to those that are specifically

mentioned. Ò Id. at 802. See also State v. Hearns , 961 So. 2d 211, 219

(Fla. 2007) ( Ñ[W] hen a general phrase follows a list of specifics, the general

phrase will be interpreted to include only items of th e same type as those

listed.Ò) .

59 . Here , the general language Ñ or other launching or landing facility Ò

follows the specific enumeration of Ñ boat ramp, hoist, [and] marine railway . Ò

60 . As set forth in the Finding s of Fact herein, pedestrian stairs,

stab ilizing timbers, wheelchair and public access matting , and unimproved

patches o f sand are not facilities similar to or of the same class as boat

ramp s , hoist s, or marine railway s . If the Legislature had intended any place

at which one could carry a kayak t o the waterÔs edge to be a launching or

landing facility, it would not have prefaced that term with examples of

substantial, permanent, fixed structures constructed for the specific purpose

of launching and landing boats.

Statutory Authority for the Prop osed Rules

61 . The statutory provisions cited by the Commission as rulemaking

authority for the Proposed Rule are sections 327.04, 327.302, and 327.46 .

62 . Section 327 .04 provides that the Commission Ñ has authority to adopt

rules pursuant to ss. 120.536( 1) and 120.54 to implement the provisions of

this chapter conferring powers or duties upon it. Ò

63 . Section 327.302 provides that the Commission Ñ shall prepare and,

upon request, supply È forms for [boating] accident reports as required in

this chapte r.Ò

6 4 . Section 327.46 provides, in pertinent part, that:

( 1) 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

safe ty 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.

(a) The c ommission may establish boating -

restricted areas by rule pursuant to chapter 120.

(b) Municipalities and counties have the authority

to establish the following boating - restricted areas

by ordinance:

1. An ordinance establishing an idle speed, no

wake boa ting - restricted area, if the area is:

a. Within 500 feet of any boat ramp, hoist,

marine railway, or other launching or landing

facility available for use by the general boating

public on waterways more than 300 feet in

width or within 300 feet of any boa t ramp, hoist,

marine railway, or other launching or landing

facility available for use by the general boating

public on waterways not exceeding 300 feet in

width. ...

65 . The statutory provisions cited by the Commission as the law

implemented by the Prop osed Rule are the same sections of 327.302

and 327.46. 1

1 How the accident - reporting forms established by section 327.302 either authorize or are

impleme nted by the boat launching and landing facility provisions of the Proposed Rule was

not explained .

Vessels

66 . Section 327.02(46) defines a ÑvesselÒ as Ñsynonymous with boat as

referenced in s. 1(b), Art. VII of the State Constitution and includes every

description of watercraft, barge, and airboa t, other than a seaplane on the

water, used or capable of being used as a means of transportation on water.Ò

67 . Article VII, section 1(b), Florida Constitution, provides that Ñboats ...

as defined by law, shall be subject to a license tax for their operat ion in the

amounts and for the purposes prescribed by law.Ò

68 . Vessel registration constitutes the state operating license.

§ 327.02(41), Fla. Stat.

69 . The Legislature has exempted certain forms of watercraft from

registration and payment of fees to coun ty tax collectors. Such watercraft

include Ñ[a] non - motor - powered vessel less than 16 feet in length or a non -

motor - powered canoe, kayak, racing shell, or rowing scull, regardless of

length. Ò £ 328.48(2)(d), Fla. Stat.

70 . W atercraft exempted from registr ation remain legislatively defined as

ÑvesselsÒ for purposes of the Florida Vessel Safety Law, chapter 327, Florida

Statutes. See £ 327.02(5) (Ñ Ó Canoe Ô means a light, narrow vessel with curved

sides and with both ends pointed Ò) and (39) (Ñ Ó Racing shell, Ô Ó rowing scull, Ô or

Ó racing kayak Ô means a manually propelled vessel .Ò).

71 . The Second District Court of Appeal, in an analogous analysis of

whether a vessel under chapter 327 must be registered as such under

chapter 328, as implied by Article VII, section 1(b) of the Florida

Constitution , determined that section 327.02(39) Ñ has consistently included

the phrase Ó used or capable of being used for transportation on water. Ô

Consequently, it is the vessel's use for transportation on water that is

necessary to es tablishing that a person was operating a vessel . .. . Ò State v.

Davis , 110 So. 3d 27, 31 (Fla. 2d DCA 2013). After reviewing the legislative

histories of both chapter 327 and chapter 328, the Court held that:

Rather than defining vessel as a boat which is

s ubject to a license tax, the legislature defined it as

being Ñsynonymous with boat.Ò £ 327.02(39). We

note too that the legislature did not define vessel as

being synonymous with boat as defined in the

constitution, but merely as referenced. Id. A

synonym is Ña word having the same or nearly the

same meaning as another in the same language.Ò

Webster's New World Dictionary & Thesaurus 623

(1996). Construing the manner in which the

legislature defined vessel (i.e., by deleting any

explicit reference to a boat 's registration and

instead citing to the reference in the constitution)

along with the fact that the legislature created an

entirely separate chapter to address registration

requirements, we interpret the constitutional

reference in section 327.02(39) to provide merely an

example of what constitutes a vessel. That is, we

find that the legislature intended for vessel to be

defined as having nearly the same meaning as boat

as referenced in the constitution. Had the

legislature intended for a vessel to be def ined by its

registration requirements, the legislature would

not have deleted the explicit reference to

registration requirements. ... [T] he reference to

section (1)(b) of article VII in section 327.02(39) -

which is merely a general definition applicable t o

all of chapter 327 - is merely to provide an example

of what constitutes a vessel.

Id. at 31 - 32.

72 . For the reasons set forth herein, it is concluded that a ÑvesselÒ as

defined in chapter 327 is not limited to vessels subject to registration and

paymen t of fees for operation. Rather, the term applies to all watercraft Ñ used

or capable of being used for transportation on water ,Ò which may include

canoes, kayaks, sailboats less than 16 feet in length, and other manually

propelled watercraft regardless of length. Thus, a Ñlaunching or landing

facilityÒ is not limited based on the size or class of vessels served .

Other launching or landing facility

73 . Since the Proposed Rule is authorized by and implements section

327.46(1), a county or municipality may establish a no - wake, slow - speed zone

Ñ[w]ithin 500 feet of any boat ramp, hoist, marine railway, or other launching

or landing facility.Ò The primary issue in this case is what type of Ñ other

launching or landing facility available to the general boating p ublicÒ falls

within the description of such provided in section 327.46(1)(b)1.a .

a. An improvement built or installed upon land

74 . The first two sentences of the Proposed Rule would, if adopted, provide

that an application for approval of an ordinance e stablishing a boating -

restricted area include the location of Ñ[a] ny boat ramp, hoist, marine

railway, or other launching or landing facility . È [which] shall be any

improvement built or installed upon land that facilitates the transitioning of

a vessel fr om land to water or from water to land. Ò

75 . Evidence of facilities considered by the Commission to meet that

Proposed Rule standard included photographs of structures and facilities,

some of which were recognizable as launching or landing facilities, and some

which were not.

76 . As set forth in the Findings of Fact, and applying the doctrine of

ejusdem generis , improved structures built or installed on land that are

similar in nature to boat ramps, hoists, and marine railways are those that

would be a reas onable implementation of the statutory definition by the

Proposed Rule .

77 . P edestrian stairs, stabilizing timbers, and wheelchair and public

access matting , as depicted by the photographs in evidence , bear no

resemblance to, and are not in the same class of facilities listed by the

Legislature . Therefore, inclusion of those types of structures in the Proposed

Rule warranting Commission approval of an ordinance establishing an idle

speed, no - wake , boating - restricted area , enlarges, modifies, or contravenes

the specific provisions of section 327.46(1)(b)1.a. and constitutes an inval id

exercise of delegated legislative authority . The suitability of types of

Ñlaunching and landing facilities , Ò other than those described and depicted

herein , will remain for dis position in subsequent proceedings after

Commission action on applications for approval of boating - restricted areas.

b. An unimproved area in a public park

78 . The third sentence of the Proposed Rule would allow any unimproved

area at a waterfront public park to be considered a launching or landing

facility, as long as the park ha s permanen t restrooms and public parking, and

the public entity posts a sign that designates the park as a launching or

landing facility. In such instances, the public park itsel f is the Ñ launching or

landing facility .Ò That broad construction is simply not supported by the

statute.

79 . As set forth in the Findings of Fact, and applying the doctrine of

ejusdem generis , launching or landing facilities must share some degree of

simi larity to legislatively listed, permanent, and improved boat ramps,

hoists, and marine railways . Patches of dirt, breaks in shoreline vegetation,

and unimproved Ñprimitive landingsÒ share no common attributes of the

statutorily listed examples. There is no thing in a public park, even those with

parking and restrooms, that inherently facilitates launching or landing

vessels, or that bears any similarity to the statutorily listed facilities.

Therefore, inclusion of parks as Ñlaunching or landing facilitiesÒ w arranting

Commission approval of an ordinance establishing an idle speed, no - wake

boating - restricted area, enlarges, modifies, or contravenes the specific

provisions of section 327.46(1)(b)1.a. and constitutes an invalid exercise of

delegated legislative a uthority.

O RDER

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

O RDERED that:

A. The definition of ÑvesselÒ is not limited to watercraft subject to

registration and payment of fees for operation, but applies to all watercraft

Ñus ed or capable of being used for transportation on water,Ò which may

include non - motor - powered vessel s less than 16 feet in length , or non - motor -

powered canoe s , kayak s , racing shell s , or rowing scull s , regardless of length.

B . A facility that meets the stan dard as an Ñother launching or landing

facilityÒ must be similar in nature to a boat ramp, hoist, or marine railway .

Pedestrian stairs, stabilizing timbers, and wheelchair and public access

matting are not similar in nature to a boat ramp, hoist, or marine railway ,

and their inclusion as Ñother launching or landing facilit ies Ò in Proposed Rule

68D - 21.001(3)(e)4.a. enlarges, modifies, or contravenes the specific provisions

of section 327.46(1)(b)1.a., and , therefore , constitutes an invalid exercise of

delega ted legislative authority.

C . P roposed R ule 68D - 21.001(3)(e)4.a. , which defines a Ñlaunching or

landing facility Ò as including Ñ an unimproved vessel launching or landing

area if such area is located within a state, county , or municipal park, and the

park i ncludes both permanently installed public restrooms and public

parking, and the unimproved vessel launching or landing area is identified

and designated for such use by the park Ò enlarges, modifies, or contravenes

the specific provisions of section 327.46( 1)(b)1.a., and , therefore , constitutes

an invalid exercise of delegated legislative authority.

D . Jurisdiction is retained for the purpose of determining reasonable

attorneyÔs fees and costs pursuant to section 120.595(2), and whether the

Commission Ôs acti ons were substantially justified or special circumstances

exist which would make the award unjust. Any motion to determine fees and

costs shall be filed within 60 days of the issuance of this Final Order.

D ONE A ND O RDERED this 20th day of September , 20 21 , in Tallahassee,

Leon County, Florida.

S

E. G ARY E ARLY

Administrative Law Judge

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 He arings

this 20th day of September , 20 21 .

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 11 9 South Monroe Street

119 South Monroe Street Tallahassee, Florida 32301

Tallahassee, Florida 32301

Eric Sutton, Exec utive Director

Rhonda E. Parnell, Esquire Florida Fish and Wildlife

Florida Fish and Wildlife Conservation Commission

Co nservation Commission Farris Bryant Building

620 South Meridian Street 620 South Meridian Street

Tallahassee, Florida 32399 Tallahassee, Florida 32399 - 1600

Emily Norton, General Counsel Ken Plante, Coordinator

Florida Fish and Wildlife Joint Admin is trative

Conservation Commission Proced ures Committee

Farris Bryant Building Room 680, Pepper Building

620 South Meridian Street 111 West Madison Street

Tallahassee, Florida 32399 - 1600 Tallahassee, Florida 32399 - 1400

Anya Gro senbaugh, Program Administrator

Margaret Swain

F lorida Administrative Code & Register

Department of State

R. A. Gray Building

500 South Bronough Street

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 o riginal 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 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.