92-003514RX Sunway Restaurant Corporation vs. Department Of Transportation Status: Closed DOAH Final Order on Thursday, July 16, 1992.

Summary: As stipualtion by parties attempted repeal of rule was invalid for failure to comply with 120.54(13)(b)

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNWAY RESTAURANT )

CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3514RX

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

______________________________)

FINAL ORDER

Petitioner, Sunway Restaurant Corporation, and Respondent, Department of

Transportation, have entered into a stipulation regarding entry of a final order

in this proceeding.

1. Under the Stipulation, this proceeding is limited to a challenge to the

validity of an existing rule pursuant to Section 120.56, Florida Statutes, and

the sole issue before the Division in this proceeding is whether the February

28, 1990 repeal of Rule 14-85.003(15)(b) was an invalid exercise of delegated

legislative authority, as defined in Section 120.52(8)(a), Florida Statutes, for

materially failing to follow the applicable rulemaking procedures set forth in

Section 120.54(13)(b), Florida Statutes. Under the Stipulation, the challenge

to the repeal of Rule 14-85.003(15)(b) pursuant to Section 120.54(4), Florida

Statutes, has been withdrawn and all grounds for challenging the repeal of Rule

14-85.003(15)(b), other than those set forth above, have been withdrawn.

2. Upon consideration of the terms of the stipulation, it is determined

that the stipulation should be approved and that the following stipulated

findings of fact and conclusions of law should be entered.

FINDINGS OF FACT

3. The Respondent's February 28, 1990 repeal of Rule 14-85.003(15)(b) was

not reflected in the Respondent's original Notice of Rulemaking and was a

change in the rule that affected the substance of the rule. This change was not

supported by the record of the public hearing held on the rule amendment nor

written comments submitted to the Respondent, nor was it in response to a

proposed objection by the Joint Administrative Procedures Committee.

CONCLUSIONS OF LAW

4. The February 28, 1990 repeal of Rule 14-85.003(15)(b) of the rule was

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

120.52(8)(a), Florida Statutes as the repeal of paragraph (15)(b) was a change

in the rule that did not meet the applicable rulemaking procedures of Section

120.54(13)(b), Florida Statutes.

ORDER

Based on the above, it is ORDERED:

1. That the Respondent's February 28, 1990 repeal of Rule 14-85.003(15)(b)

was an invalid exercise of delegated legislative authority and is invalid.

2. That the repeal of Rule 14-85.003(15)(b) shall become void when the

time for appeal of this Order has expired.

3. That this Order shall be without prejudice to the Respondent's ability

to initiate rulemaking pursuant to Section 120.54, Florida Statutes, to repeal

Rule 14-85.003(15)(b) and shall be without prejudice to Petitioner's ability to

challenge such rulemaking.

4. The hearing scheduled for July 13, 1992 has been cancelled, and Burger

King Corporation's Petition for Leave to Intervene is denied as moot.

DONE and ENTERED this 16th day of July, 1992, in Tallahassee, Florida.

________________________________

MARY CLARK,

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of July, 1992.

COPIES FURNISHED:

Theodore Mack, Esquire

Cobb, Cole & Bell

315 S. Calhoun St., Suite 500

Tallahassee, FL 32301

Paul Sexton, Asst. General Counsel

Department of Transportation

Haydon Burns Bldg., MS 58

605 Suwanee Street

Tallahassee, FL 32399-0458

M. Christopher Bryant, Esquire

Oertel, Hoffman, Fernandez

& Cole, P.A.

P.O. Box 6507

Tallahassee, FL 32314-6507

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, FL 32399-1300

Thornton J. Williams, General Counsel

Department of Transportation

562 Haydon Burns Building

Tallahassee, FL 32399-0458

Ben G. Watts, Secretary

Department of Transportation

605 Haydon Burns Building

Tallahassee, FL 32399-0458

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL

REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE

GOVERNED BY THE FLORIDA RULE OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE

COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING

FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR

WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY

RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE

ORDER TO BE REVIEWED.