22-000513 Devil&Apos;S Garden Investment, Llc/Devil&Apos;S Garden Aquaculture vs. South Florida Water Management District Status: Appeal.

Summary: Statement made by the District to Petitioner during settlement negotiations was not an unadopted rule.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EVIL ' S G ARDEN I NVESTMENT ,

LLC/D EVIL ' S G ARDEN A QUACULTURE ,

Petitioner ,

vs. Case No. 22 - 0513RU

S OUTH F LORIDA W ATER M ANAGEMENT

D ISTRICT ,

Respondent .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This matter is before the undersigned on the partiesÔ cross - motions for

summary final order.

A PPEARANCES

For Petitioner: Kenneth G. Oertel, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

For Respondent: M arianna Sarkisyan, Esquire

S avannah W. Middlebush, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406

S TATEMENT O F T HE I SSUE

The issue to be determined is w hether the statement of Respondent,

South Florida Water Management District ( ÑDistrict Ò) , that Petitioner,

DevilÔs Garden Investment, LLC/DevilÔs Garden Aquaculture (ÑPetitionerÒ),

submit Ñ[ a ] n engineering analysis , signed and sealed by a Professional

Engineer , demonstrating t hat the property does not discharge during the

100 - year , three - day storm event,Ò constitutes an unadopted rule in violation

of section s 120.54(1)(a) and 120.56(4) , Florida Statutes (2021) .

P RELIMINARY S TATEMENT

On June 7, 2021, Petitioner, pursuant to Florida Administrative Code

R ule 40E - 63.401, submitted a written request to the District for a waiver

from the requirements of chapter 40E - 63. On July 2, 2021, the District denied

the request. Dissatisfied with the denial, on July 15, 2021, Petitioner time ly

filed a p etition for a dministrative h earing with the District , which was

amended on February 7, 2022 (ÑWaiver PetitionÒ) .

On February 17, 2022, the District referred the Waiver Petition to the

Division of Administrative Hearings (ÑDOAHÒ) . The case was assigned to the

undersigned under DOAH Case No. 22 - 0 513. On February 2 5, 2022, the

undersigned issued a Notice of Hearing setting the final hearing for April 29,

2022.

On April 5, 2022, Petitioner filed its Petition for Administrative

Determination of Invalidity of Agency Statements Defined as Unadopted

Rules, Pursuant to Section 120.56, Florida Statutes ( Ñ Unadopted Rule

Petition Ò ). Petitioner filed the Unadopted Rule Petition as a standalone

petition in the same DOAH case as the Waiver Petition (DOAH C ase No. 22 -

0513). On April 8, 2022, Petitioner filed a Notice of Voluntary Dismissal of

the Waiver Petition, but not the Unadopted Rule Petition.

Pursuant to section 120.56 (1)(c), a hearing on an unadopted rule challenge

must be conducted within 30 days after assignment of the case to the

administrative law judge, Ñunless the petition is withdrawn or a continuance

is granted by agreement of the parties or for good cause shown.Ò ÑRUÒ is the

case suffix DOAHÔs clerk Ô s office uses to identify unpromulgated rule

challenge type cases . On Ap ril 13, 2022, the undersigned issued an Amended

Notice of Hearing as to the issue and case suffix to reflect that the case would

proceed to final hearing on April 29, 2022, as scheduled, but only on the

Unadopt ed Rule Petition .

On April 13, 2022, Petitioner filed its Motion for Summary Final Order.

On April 13, 2022, the parties filed an Unopposed Emergency Motion

Requesting Case Management Conference. On April 14, 2022, a telephonic

case management conference was held with counsel for the parties

participating in the conference. During the conference, good cause was

demonstrated for conducting the final hearing more than 30 days after the

assignment of th e Unadopted Rule Petition to the undersigned . On April 15,

2022, the undersigned issued an Order rescheduling the final hearing for

June 2, 2022. On April 20, 2022, the District filed its response in opposition

to PetitionerÔs motion for summary final order , along with its cross - motion for

summary final order against P etitioner. On April 22, 2022, Petitioner filed a

reply to the DistrictÔs response and cross - motion.

On April 27, 2022, the undersigned issued an Order informing the parties

that: ÑHaving reviewed the partiesÔ cross - motions, it appears that no genuine

issue as to any material fact exists, and that this case may be resolved by a

summary final order . Ò The undersigned further stated that by no later than

May 9, 2022, Ñthe parties shall file a statement identifying any and all

material facts con tended to be in dispute. If no such statement is filed, the

undersigned will cancel the final hearing set for June 2, 2022, and enter a

summary final order based on the cross - motions.Ò On May 6, 2022, the

District f iled a response to the Order, but did not identify any material facts

contended to be in dispute. Petitioner did not file a response to the Order.

Accordingly, on May 11, 2022, the undersigned issued an Order canceling the

hearing set for June 2, 2022 . Based on the partiesÔ cross - motions, t he

following material facts are not in dispute.

F INDINGS O F F ACT

1. Petitioner is a limited liability company organized under the laws of the

State of Florida . Petitioner owns property in Hendry County, Florida, located

within the C - 139 Basin . The property in question is used to raise alligators.

2. The District is an agency of the State of Florida, whose headquarters is

located at 3301 Gun Club Road, West Palm Beach, Florida 33406.

3. Rule 40E - 63.401(2), Florida Administrative Code, provide s that:

Unless expressly exempted, all lands within the C -

139 Basin are users of the Works of the District

within the C - 139 Basin, and as such must be granted

a No Notice General Permit pursuant to the

provisions of Rule 40E - 63.415, F.A.C., or must

obtain a General Permit pursuant to the provisions

of Rule 40E - 63.430, F.A.C. The rules shall apply to

existing and new discharges within the C - 139 Basin.

4. On June 7, 2021, Petitioner, through its professional hydrologist,

Paul Whalen, submitted a reque st to the District for a waiver from the

requirements of c hapter 40E - 63 .

5 . Rule 40E - 63.410 , provides that:

Any landowner in the C - 139 Basin, as described in

EFA, Section 3 73.4592(16), F.S. , may submit

evidence to the District demonstrating that the

water discharged from such property does not use

the Works of the District within the C - 139 Basin and

request a written waiver from the requirements of

this chapter pursuant to Rule 28 - 104. 002, F. A.C.

and Section 120.542, F.S.

6 . Section 120.542 (2) provides that:

Variances and waivers shall be granted when the

person subject to the rule demonstrates that the

purpose of the underlying statute will be or has been

achieved by other means by the person and when

application of a rule would create a substantial

hardship or would violate principles of fairness. For

purposes of this section, Ñsubstantial hardshipÒ

means a demonstrated economic, technological,

legal, or other type of hardship to the pe rson

requesting the variance or waiver. For purposes of

this section, Ñprinciples of fairnessÒ are violated

when the literal application of a rule affects a

particular person in a manner significantly different

from the way it affects other similarly situa ted

persons who are subject to the rule.

7 . On July 2, 2021, the District denied PetitionerÔs request for a waiver

(ÑDenial LetterÒ) for the following reasons :

Devils Garden does connect or make use of a WOD

within the C - 139 Basin, and is therefore, n ot entitled

to a waiver of the Chapter 40E - 63, F.A.C.,

permitting requirements. The ERP, which remains

active and valid, authorizes DevilÔs Garden to

discharge runoff to the adjacent AGI, and ultimately

to WOD within the C - 139 Basin. DevilÔs Garden has

als o fail e d to demonstrate that application of the

Chapter 40E - 63, F.A.C., permitting requirements

would create a substantial hardship or violate the

principl [es] of fairness as required under Section

120.542, F.S. Lastly, DevilÔs Garden did not provide

the District with reasonable assurance

demonstrating that the purpose of Chapter 373,

F.S., will be achieved by other means if the waiver

were granted.

8 . Dis satisfied with the Denial Letter , on July 15, 2021, Petitioner timely

filed a Petition for Administrative Hearing, challenging the DistrictÔs

decision . This petition did not assert that the DistrictÔs denial of the request

for a waiver was premised on an a pplication of an unadopted rule.

9 . After the District received the petition, the parties agreed that the

District would not refer the petition to DOAH while they had an opportunity

to explore a potential amicable resolution of the matter .

10 . From July 15, 2021, until January 11, 2022, counsel for the parties

engaged in settlement negotiations in an effort to amicably res olve their

dispute without litigation.

1 1 . On November 16, 2021, during the course of the partiesÔ settlement

negotiations, the District Ôs legal counsel , Julia Lomonico, wrote to PetitionerÔs

counsel, Kenneth G. Oertel, indicating that the District would be willing to

grant a waiver, upon present ment by Petitioner of Ñ[ a ] n engineering analysis ,

signed and sealed by a Professional Engineer, demonstrating that the

property does not discharge during the 100 - year, three - day storm event ... . Ò As

explained by Ms. Lomonico, the foregoing Ñ is an industry standard and

commonly required analysis in the regulatory context of offsite discharges. Ò

Ms. Lomonico further explained:

Site conditions along the n orthern and western

property lines leave some doubt as to the ability of

the subject property to retain all of its stormwater

runoff. The District has determined that a statement

lacking any calculations or engineering analysis is

not sufficient evidence t o demonstrate that the

property at issue does not discharge into Works of

the District within the C - 139 Basin.

1 2 . On January 11, 2022, Mr. Oertel wrote to Ms. Lomonico,

memorializing that the parties had been engaged in settlement negotiations

since the filing of the petition on July 15, 2021, that it did not appear that the

matter could be amicably resolved, and requesting that the District transmit

the Waiver P etition to DOAH for assignme nt of an administrative law judge .

1 3 . On February 3, 2022, Petitioner filed an Amended Petition for Formal

Proceeding with the District. The amended petition did not assert that the

DistrictÔs denial of the request for a waiver was premised on an applic ation of

an unadopted rule.

1 4 . The District transmitted the Waiver Petition to DOAH on February

17, 2022 , and the case was assigned to the undersigned under DOAH Case

No. 22 - 0513. On April 5, 2022, Petitioner filed the Unadopted Rule Petition

as a standalone petition in DOAH Case No. 22 - 0513. On April 8, 2022,

Petitioner filed a Notice of Voluntary Dismissal of the Waiver Petition, but

not the Unadopted Rule Petition.

1 5 . The undisputed material facts demonstrate that the DistrictÔs

statement tha t Petitioner submit Ñ[ a ] n engineering analysis , signed and

sealed by a Professional Engineer , demonstrating that the property does not

discharge during the 100 - year , three - day storm event , Ò was not used as a

basis for denial of PetitionerÔs request for a waiver. Rather, the statement

was made by the DistrictÔs counsel , to PetitionerÔs counsel , in the context of

months - long settlement discussions between the parties, after the DistrictÔs

deni al of PetitionerÔs request for a waiver and after Petitioner had already

challenged the denial .

1 6 . The s tatement represents the type of demonstrative evidence

Petitioner could provide , pursuant to rule 40E - 63.410, to demonstrate that its

property does not discharge into a Works of the District. The statement was

specific to PetitionerÔs property , is not generally applicable, and does not have

the effect of law .

C ONCLUSIONS O F L AW

1 7 . DOAH has jurisdiction over the parties and subject matter of this

proceeding pursuant to section 120.56(4).

18. A Ñsummary final order shall be rendered if the administrative law

judge determines from the pleadings, depositions, answers to interrogatories,

and admissions on file, to gether with affidavits, if any, that no genuine issue

as to any material fact exists and that the moving party is entitled as a

matter of law to the entry of a final order.Ò § 120.57 (1)(h), Fla. Stat. This

Ñstandard for issuing a summary final order genera lly mirrors the standard

for granting summary judgment under the Florida Rules of Civil Procedure.Ò

Castiello v. Statewide Nominating CommÔn for Judges of Comp. Claims , Case

No. 17 - 0477RU (Fla. DOAH Jan. 1 0 , 2018) (granting a motion for summary

final order ) ; Daytona Beach Kennel Club, Inc. v. DepÔt of Bus. and Pro . Reg ul . ,

Case No. 20 - 5233RU (Fla. DOAH Jan. 8, 2021) (same).

1 9 . Section 120.56(4)(a) authorizes any person who is substantially

affected by an agency statement to seek an administrative determination

that the statement is actually a rule whose existence violates

section 120.54(1)(a) because the agency has not formally adopted the

statement. Section 120.54(1)(a) declares that Ñ[r]ulemaking is not a matter of

agency discretionÒ and directs that Ñ[e]ach agency statement defined as a rule

by s. 120.52 shall be adopted by the rulemaking procedure provided by this

se ction as soon as feasible and practicable.Ò

20 . Section 120.52(16) defines the term Ñrule,Ò in pertinent part, as:

each statement of general applicability that

implements, interprets, or prescribes law or policy or

describes the procedure or practice req uirements 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.

21 . A n agencyÔs application of the law to a particular set of facts is not a

rule. Amerisu re Mut. Ins. Co. v. Fla. DepÔt of Fin. Servs., Div. of WorkersÔ

Comp. , 156 So. 3d 520, 531 (Fla. 1st DCA 2015) (concluding that the agency

did not rely on an unadopted rule, but Ñsimply applied the governing statute

to the informationÒ reported to the rele vant entit y) , superseded by state

constitutional amendment on other grounds, Art. V, § 21, Fla. Const., as

recognized in Lee MemÔl Health Sys. Gulf Coast Med. Ctr. v. Ag. for Health

Care Admin. , 272 So. 3d 431, 437 (Fla. 1st DCA 2019) .

22. Th us , Ñ[ a ] n agency statement explaining how an existing rule of

general applicability will be applied in a particular set of facts is not itself a

rule.Ò EnvÔt Trust v. State, DepÔt of EnvÔt Prot., 714 So. 2d 493, 498 (Fla. 1st

DCA 1998 ) (ÑThe Department is not requ ired to adopt another rule

explaining how it will apply the term ÓintegralÔ in a particular

circumstance. Ò ). As the court explained in Environmental Trust :

If that were true, the agency would be forced to

adopt a rule for every possible variation on a theme,

and private entities could continuously attack the

government for its failure to have a rule that

precisely addresses the facts at issue. Instead, these

matters are left for the adjudication process under

section 120.57, Florida Statutes.

Id .

23 . Turning to the instant case, the DepartmentÔs statement that

Petitioner submit Ñ[ a ] n engineering analysis , signed and sealed by a

Professional Engineer , demon strating that the property does not discharge

during the 100 - year , three - day storm event , Ò is not a rule. The statement was

not used as a basis for denial of PetitionerÔs request for a waiver. Rather, the

statement was made by the DistrictÔs counsel, to PetitionerÔs counsel, in the

context of months - long settlement discussions between the part ies, after the

DistrictÔs denial of PetitionerÔs request for a waiver and after Petitioner had

already challenged the denial.

24. Moreover, t he statement represents the type of demonstrative

evidence , pursuant to the existing rule, that Petitioner could p rovide to

demonstrate that its property does not discharge into a Works of the District.

The statement was specific to PetitionerÔs property, is not generally

applicable, and does not have the effect of law. As in Environmental Trust ,

t he District is not r equired to adopt a nother rule explaining the quality of

evidence it will require in a particular circumstance.

O RDER

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

O RDERED that PetitionerÔs motion for summary final order is D ENIED ; the

DistrictÔs cross - motion for summary final order is G RANTED ; and PetitionerÔs

Unadopted Rule Petition is D ISMISSED with prejudice.

D ONE A ND O RDERED this 2nd day of June , 2022 , in Tallahassee, Leon

County, Florida.

S

D ARREN A. S CHWARTZ

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 2n d day of Jun e , 2022 .

C OPIES F URNISHED :

Kenneth G. Oertel, Esquire Ken Plante, Coordinator

Oertel, Fernandez, Bryant & Atkinson, P.A. Joint Admin Proced ures Committee

Post Office Box 1110 Room 680, Pepper Building

Tallahassee, Florida 32302 - 1110 111 West Madison Street

Tallahassee, Florida 32399 - 1400

Marianna Sarkisyan, Esquire

Savannah W. Middlebush, Esquire Anya Owens, Program Administrator

South Florida Water Management District Florida Administrative Code & Register

3301 Gun Club R oa d Department of State

West Palm Beach, Florida 33406 R. A. Gray Building

500 South Bronough Street

Julia Lomonico, Interim General C ounsel Tallahassee, Florida 32399 - 0250

South Florida Water

Management District

3301 Gun Club Road

West Palm Beach, F lorida 33406 - 3007

Margaret Swain Drew Bartlett, Exec utive Dir ector

Florida Administrative Code & Register South Florida Water

Department of State Management District

R. A. Gray Building 3301 Gun Club Road

500 South Bronough Street West Palm Beach, F lorida 33406 - 3007

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 ori ginal 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 th e d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.