STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICK OSBORNE, )

)

Petitioner, )

)

vs. ) CASE NO. 81-062RX

)

FLORIDA GAME AND FRESH )

WATER FISH COMMISSION, )

)

Respondent. )

)

FINAL ORDER

By stipulation of the parties, this cause came on for consideration before William E. Williams, duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael H. Davidson, Esquire

211 Delta Court Tallahassee, Florida 32303

For Respondent: Kenneth Gilleland, Esquire

620 South Meridian

Tallahassee, Florida 32301

By Petition for Administrative Determination filed with the Division of Administrative Hearings on January 8, 1981, Petitioner, Rick Osborne ("Petitioner") challenges the validity of Rules 39-10.02(4) and 39-10.02(5), Florida Administrative Code. The challenged rules were promulgated by the Florida Game and Fresh Water Fish Commission ("Respondent" or "Commission").

Final Hearing was scheduled for February 4, 1981, by notice of hearing dated January 16, 1981. Thereafter, the parties moved for cancellation of the final hearing, and stipulated that this matter would be submitted to the Hearing Officer for decision based upon a stipulation of Facts and Memoranda of Law to be submitted by each party.

FINDINGS OF FACT

The parties stipulated to the following facts:

1. Petitioner is an employee of the Boromei-Mirabella Seafood Company, a licensed fish dealer located in Tampa, Florida. The scope of Petitioner's employment included the vehicular transport of fish for sale or purchase. While engaged in his employment, Petitioner was apprehended and arrested by officers of the Commission, and charged with violation of Rules 39-10.02(4) and 39- 10.02(5), Florida Administrative Code. Petitioner's arrest occurred in Highlands County, Florida, on or about December 11, 1980. Petitioner, for

   purposes of this proceeding, admits to the factual behavior alleged in the arrest citation issued by Respondent's offices.

   
   

2. The rules challenged in this proceeding were promulgated by Respondent in accordance with the procedures set forth in Chapter 120, Florida Statutes, also known as the Administrative Procedure Act. The challenged rules became effective on August 11, 1979. Both rules cite Article IV, Section 9, of the Florida Constitution and Section 372.021, Florida Statutes, as "specific authority" for promulgation of the rules. In addition, Section 372.65, Florida Statutes, is listed in the Florida Administrative Code, as the "law implemented" by the two challenged rules.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding. Section 120.56(1), Florida Statutes.

   
   

4. Rule 39-10.02(4), Florida Administrative Code, provides that:

   
   

   Any person transporting fish for a holder of any commercial fisheries license shall be in possession of either said license or positive proof that such license has been issued and is valid and in good standing.

   
   

5. Rule 39-10.02(5), Florida Administrative Code, provides that:

   
   

   All wholesale fish or frog dealers engaged in possessing or transporting freshwater fish shall have clearly displayed in letters of contrasting colors no less than two (2) inches high on the side of any vehicle being used to transport such fish the words, "Freshwater Fish Dealer."

   
   

6. The Florida Administrative Code lists as "specific authority" for adoption of both of the aforesaid rules, Article IV, Section 9, Florida Constitution, and Section 372.021, Florida Statutes. Article IV, Section 9, of the Florida Constitution provides as follows:

   
   

   There shall be game and freshwater fish commission composed of five members appointed by the governor subject to confirmation by the senate for staggered terms of five years.

   The commission shall exercise the regulatory and executive powers of life and fresh water aquatic life, except that all license fees for taking wild animal life and fresh water aquatic life and penalties for violating regulations of the com- mission shall be prescribed by

   specific statute. The legislature may enact laws in aid of the com- mission, not inconsistent with this section. The commission's exercise of executive powers in the area of

   planning, budgeting, personnel manage- ment, and purchasing shall be as provided by law. Revenue derived from such license fees shall be appropriated to the commission by the legislature for the purpose of management, protec- tion and conservation of wile animal life and fresh water aquatic life. (Emphasis added).

   
   

7. Section 372.021, Florida Statutes, provides:

   
   

   The Game and Fresh Water Fish Commission may exercise the powers, duties and authority granted by section 9, Art. IV of the Constitution of Florida, by the adoption of rules, regulations and orders in accordance with chapter 120.

   (Emphasis added).

   
   

8. The Florida Administrative Code lists as the "law implemented" by the two challenged rules. Section 372.65, Florida Statutes, which provides, in pertinent part, that:

   
   

   1. No person shall engage in the business of taking for sale or selling any frogs or freshwater fish of any species or size, or importing any exotic or nonin- digenous fish, until such person has obtained a license and paid the fee therefor as set forth herein. The license issued shall be in the possession of the person engaging in the business of taking for sale or selling freshwater

      fish or frogs and shall be displayed to officers of the Game and Fresh

      Water Fish Commission upon request. . . .

      
      

9. With respect to Rule 39-10.02(4), Florida Administrative Code, Petitioner argues that Respondent has adopted a rule which impermissible conflicts with or modifies its enabling statute, Section 372.65, by requiring persons other than the holder of a commercial fisheries license to be in possession of either the license or positive proof of a valid existing license. Rule 39-10.02(4), Florida Administrative Code, thus, according to Respondent, constitutes an impermissible enlargement of statutory jurisdiction.

   
   

10. Finally, Petitioner argues that Rule 39-10.02(5), Florida Administrative Code, although represented to have been authorized pursuant to Section 372.021, Florida Statutes, and as having "implemented" Section 372.65, Florida Statutes, is, in fact, totally lacking in legislative authorization.

11. Section 120.56(1), Florida Statutes, provides a mechanism whereby a citizen "substantially affected" by an agency rule may seek a determination of the invalidity of that rule ". . . on the ground that the rule is an invalid exercise of delegated legislative authority." (Emphasis added). In order for a rule to be declared invalid in a Section 120.56 proceeding, the rule must, by definition, be grounded in a legislative grant of authority. Where, as here, an agency is exercising a constitutional as opposed to a legislative grant of authority, a Section 120.56 challenge will not lie.

    
    

12. The commission is, so far as research has disclosed, the sole exception to the legislative pronouncement in Section 120.54(14), Florida Statutes, that "[n]o agency has inherent rulemaking authority . . . ." The people of the State of Florida, through approval of the language of Article IV, Section 9, of the Constitution of the State of Florida invested the Commission with " . . . the regulatory and executive powers of the State with respect to wild animal life and fresh water aquatic life" and limited the Legislature to enactment of " . . . laws in aid of the Commission, not inconsistent with this section." Thus, rules of the Commission concerning the regulation of wild animal life and fresh water aquatic life are ultimately grounded on a constitutional rather than a legislative grant of authority. Both Rules 39- 10.02(4) and 39-10.02(5), Florida Administrative Code, are rules concerning the regulation of wild animal life and fresh water aquatic life. As a consequence, given their constitutional origin, they are not subject to attack in a Section 120.56(1), Florida Statutes proceeding.

    
    

13. Legislative recognition of the immunity of Commission rulemaking from the strictures of Chapter 120, Florida Statutes, is implicit in Section 372.021, Florida Statutes, which makes the adoption of rules, regulations and orders by the Commission in accordance with Chapter 120 permissive rather than mandatory, as is the case with all other "agencies." The Commission's acceptance of this "invitation" to adopt its rules in accordance with Chapter 120 and to publish them in the Florida Administrative Code, did not, nor could it have, constituted a waiver of its constitutional mandate, thereby subjecting those rules to administrative, rather than judicial, attack.

Accordingly, since the challenged rules are of a constitutional origin, any assertion that they are invalid would necessarily require a determination of their unconstitutionality. The Division of Administrative Hearings is without jurisdiction to determine questions concerning the constitutionality of the rules. See, Department of Environmental Regulation v. Leon County, 344 So. 2d

297 (Fla. 1st DCA 1977); Department of Revenue v. Young American Builders, 358 So. 2d 1096 (Fla. 1st DCA 1978).

Accordingly, it is determined as a matter of law that Rules 39-10.02(4) and 39-10.02(5), Florida Administrative Code, were promulgated by the Commission pursuant to authority granted in Article IV, Section 9, of the Constitution of the State of Florida, and are, therefore, not subject to attack in a Section 120.56(1), Florida Statutes proceeding. The relief requested by Petitioner should therefore be, and the same is hereby DENIED, and the petition is dismissed.

DONE AND ORDERED this 25th day of February, 1981, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1981.

COPIES FURNISHED:

Michael H. Davidson, Esquire

211 Delta Count Tallahassee, Florida 32303

Kenneth Gilleland, Esquire 620 South Meridian

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 Capitol Building

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 81-000062RX

Orders for Case No: 81-000062RX