STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RIVER TRAILS, LTD., a limited ) partnership existing and ) authorized within the State of ) Florida, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0329RX

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, STATE OF FLORIDA, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on March 8, 1985, in Tallahassee, Florida.

APPEARANCES

Petitioner, River Trails, Ltd., (hereinafter "River Trails") was represented by Joseph W. Landers, Jr., Philip

1. Parsons, and Stephen Emmanuel, Esquires, Tallahassee, Florida; and Julia D. Cobb, Attorney at Law, Tallahassee, Florida, appeared on behalf of Respondent Department of Environmental Regulation, State of Florida (hereinafter "DER").

   
   

   River Trails notified DER that it intended to construct a dock of 1,000 square feet or less in Canal C-18 and requested DER to recognize its exempt status pursuant to Section 403.813(2)(b), Florida Statutes. After DER determined the exemption was not applicable because the project conflicted with Rule 17- 4.04(9)(c), Florida Administrative Code, River Trails filed its petition for determination that portions of that rule are invalid, raising three issues to be resolved herein:

   
   

   1. Whether DER Rule 17-4.04(9)(c), Florida Administrative Code, is in excess of DER's statutory authority because it conflicts with or adds to the requirements of the statutory exemption contained in Section 403.313(2)(b), Florida Statutes?

   2. Whether DER's interpretation of the term "parcel of property" within the meaning of Rule 17-4.04(9)(c) is itself a rule which is void for failure to comply with the rulemaking requirements of Chapter 120, Florida Statutes?

   3. Whether DER's interpretation and application of Rule 17-4.04(9)(c) is arbitrary and unreasonable?

Joint Exhibits A-T were admitted in evidence, which exhibits included the depositions of the following DER employees: William K. Hennessey, Steven J. Fox, Suzanne P. Walker, E. Gary Early Richard Walesky, Larry 0'Donnell, and Roy Allen Duke.

Proposed orders containing findings of fact have been submitted by the parties and considered in the preparation of this Final Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Final Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected or, when possible, modified to conform to the evidence.

Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. Petitioner River Trails is the developer of a condominium community in Palm Beach County known as River Walk. River Walk is contiguous to and immediately adjacent to 2600 feet of South Florida Water Management District (hereinafter "SFWMD") property bordering Canal C-18 in Palm Beach County. The right- of-way adjacent to C-18 as well as the bottom of C-18 is owned by SFWMD. C-18 is not in an area designated as Outstanding Florida Waters.

2. As required by Section 403.813(2), Florida Statutes, River Trails sought and obtained on January 12, 1984, a permit from the SFWMD to construct a dock and boat ramp in Canal C-18. The permit conveyed no property rights to River Trails.

   
   

3. On October 12, 1984, River Trails asked DER to confirm that River Trails' proposed boat ramp qualified for an exemption pursuant to Section 403.813(2)(c), Florida Statutes. By letter dated December 20, 1984, DER informed River Trails that the proposed boat ramp did qualify for the exemption and, therefore did not require any permit from DER.

   
   

4. On October 18, 1984, River Trails asked DER to confirm that River Trails' proposed dock of 1,000 square feet or less qualified for an exemption from DER's permitting authority pursuant to Section 403.813(2)(b), Florida Statutes. However, on November 30, 1984, DER informed River Trails that its proposed dock did not qualify for the exemption because there was already an existing dock on SFWMD property on Canal C-18. As authority for its position, DER cited the following sentence in DER Rule 17-4.04(9)(c), Florida Administrative Code: "A private dock is a single pier at a parcel of property."

   
   

5. On the 2600 feet of SFWMD-owned right-of-way contiguous to River Trails, there are presently no docks. On SFWMD-owned right-of-way east of River Trails, between River Trails and the southwest fork of the Loxahatchee River, there are two docks approximately 300 feet apart located in front of single-family residences. DER contends all contiguous property owned by an individual, group or entity, including a water management district, constitutes a "parcel of property" and accordingly does not recognize River Trails' claim to an exemption because of the existence of these docks.

   
   

6. Prior to River Trails' request that DER confirm River Trails' right to an exemption, DER had not interpreted water management district-owned right-of-ways to be a "parcel of property" within the meaning of Rule 17- 4.04(9)(c). In the past, the SFWMD has permitted numerous docks of less than 1,000 square feet on SFWMD-owned right- of-ways. Copies of these permits were routinely forwarded to DER. While these docks were and are on right-of-ways

   which DER now defines as a "parcel" within the meaning of Rule 17-4.04(9)(c), DER has not required permits for these docks.

   
   

7. The DER employees who interpret the rule in question as part of their duties and whose depositions were introduced at hearing do not agree on the configuration which constitutes a single pier, on the degree of ownership or control required over a parcel of property by an applicant for an exemption, or on the definition of a parcel of property.

   
   

8. DER has failed to adequately explain its deviation from past agency practice in interpreting SFWMD right-of- way as a parcel of property.

   
   

9. But for DER's new interpretation of the term "parcel of property" found in Rule 17-4.04(9)(c), Florida Administrative Code, River Trails' proposed dock meets the statutory and rule requirements for an exemption from obtaining a permit from DER.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.56, Florida Statutes (1983).

    
    

11. Petitioner River Trails has standing to maintain this challenge to the rules that substantially affect its right to an exempt dock.

    
    

12. Section 403.813(2)(b), Florida Statutes, provides an exemption for private docks as follows:

    
    

    (2) No permit under this chapter, chapter 373, or chapter 253, chapter 61-691; Laws of Florida, or chapter 25214 or chapter 25270, Laws of Florida, 1949, shall be required for activities associated with the following types of projects; however, nothing in this subsection shall relieve an applicant from any requirement to obtain permission to use or occupy lands owned by any water management district in its governmental or proprietary capacity or from complying with applicable local pollution control programs authorized

    under this chapter or other requirements of county and municipal governments:

    * * *

    1. The installation and repair of mooring pilings and dolphins associated with private docking facilities and the installation of private docks, any of which docks:

       1. Has 500 square feet or less of over- water surface area, or 1,000 square feet or less of over-water surface area for a dock which is not located in an area designated as outstanding Florida waters and which is used for recreational, noncommercial activities;

       2. Is constructed on pilings so as not to involve filling or dredging other than that necessary to install the pilings; and

       3. Shall not substantially impede the flow of water or create a navigational hazard.

13. Rule 17-4.04(9)(c), Florida Administrative Code, provides:

    
    

    17-4.04 Exemptions. The following sources are exempted from the permit requirements of this Chapter.

    * * *

    (9) Construction; dredging or filling activities associated with the following types of projects:

    * * *

    1. The installation and repair of mooring pilings and dolphins associated with private docking facilities and the installation of private docks of five hundred

    (500) square feet or less of over-water surface area, or one thousand (1,000) square feet or less of over-water surface area for docks which are not located in Outstanding Florida Waters and which are used for recreational, noncommercial activities, constructed on pilings so as not to involve filling or dredging other than that necessary to install the pilings. The dock shall not substantially impede the flow of water or create a navigational hazard. A private dock is a single pier at a parcel of property. Provided, that for the purposes of this rule, multifamily living complexes and other types of complexes or facilities associated with the proposed private dock shall be treated as one parcel of property regardless of the legal division of ownership or control of the associated property. Construction of a private dock under this exemption does not require the Department to issue a subsequent permit to construct a channel to provide navigational access to the dock. Activities associated with a private dock shall include the construction of structures attached to the pier which are only suitable for the

    mooring or storage of boats (i.e., boat-lifts).

    
    

14. Agencies are creatures of statute and have no inherent rulemaking authority. Hence, no agency can adopt a rule which amends, adds to, or conflicts with a statute. State, Department of Business Regulation v. Salvation,

    Ltd., Inc., 452 So. 2d 65 (Fla. 1st DCA 1984); Grove Isle, Ltd., v. State, Department of Environmental Regulation, 454 So. 2d 571 (Fla. 1st DCA 1984). Any rule which attempts to do so is an invalid exercise of delegated legislative authority. State, Department of Health and Rehabilitative Services v. McTigue, 387 So. 2d 454 (Fla. 1st DCA 1980).

    
    

15. While the interpretation of a statute by an agency charged with its enforcement is normally entitled to great deference, where legislative intent as evidenced by the plain wording of the statute is clear and unambiguous, there is no necessity for inquiry into legislative intent because the plain language of the statute must be followed. Section 403.813(2)(b) Florida Statutes, unambiguously provides a statutory exemption from permitting requirements and therefore DER's jurisdiction for private docks with a 1,000 square feet or less of over-water surface area which are used for recreational, noncommercial activities; which are constructed on pilings; and which do not substantially impede the flow of water or create a navigational hazard. DER's argument that its rule simply carries out legislative intent is without merit. An agency cannot be said to be carrying out legislative intent where the Legislature clearly states that an agency has no jurisdiction over a project of some type, and the agency thereafter promulgates a rule stating that it does. Rule 17-4.04(9)(c), Florida Administrative Code, clearly limits an exemption granted by the Legislature and is, therefore, an invalid exercise of delegated legislative authority. See also, Edwards v. Graham, Case No. 84-740-CA-17 (Fla. 16th Cir. 12/18/84).

    
    

16. Even if the Legislature intended only one exempt dock per single family or development, DER's rule as interpreted and applied by DER to property owned by water management districts clearly conflicts with Section 403.813(2), Florida Statutes. In Section 403.313(2), the Legislature, while exempting certain projects such as piers with 1,000 square feet or less of over- water service area from the otherwise applicable permitting requirements, nonetheless required persons seeking to build such exempt projects "to obtain permission to use or occupy lands owned by any water management district. . . ." By specifically providing that a person or entity seeking to build an exempt dock on water management district-owned property must have the approval of the appropriate water management district, it is evident the Legislature did not intend for

    DER to limit the number of exempt docks that could be built on water management district property.

    
    

17. Section 120.52(15), Florida Statutes, defines a "rule" as:

    
    

    . . . each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of any agency and includes any form which imposes any requirement or solicits any information not specifically

    required by statute or by an existing rule. . . .

    
    

    Agency statements which meet the definition of a "rule" within the meaning of Section 120.52(15), Florida Statutes, but have not been adopted according to the rulemaking requirements of Section 120.54, Florida Statutes, are invalid. Department of Administration v. Stevens, 344 So. 2d 290 (Fla. 1st DCA 1977).

    
    

18. DER's interpretation of the term "parcel of property" as contained in Rule 17-4.04(9)(c), Florida Administrative Code, to mean all contiguous property owned by an individual or entity, including a water management district, regardless of its size, is an agency statement of general applicability which creates rights and adversely affects others with the force and effect of law and is accordingly found to be a rule which is invalid because it was not adopted or published in accordance with the rulemaking requirements of Section 120.54, Florida Statutes.

    
    

19. An administrative rule cannot be arbitrary or capricious but must reasonably relate to the purpose of the enabling legislation. Agrico Chemical Company v. State,

    365 So. 2d 759 (Fla. 1st DCA 1978). In making classifications, an agency must show that its classification is based upon some difference in the classes having a substantial relation to the purpose for which the legislation was designed. Application of DER's rule is arbitrary in the instant case where River Trails is being denied a dock not because River Trails has already built a dock on the 2600 feet of SFWMD property contiguous to that owned by River Trails but because there are two existing docks in front of single-family residences on SFWMD

    property upriver from that belonging to River Trails. Had DER's new interpretation of Rule 17-4.04(9)(c) been in effect earlier, the latter of these two single-family residences having docks would not have been exempt and thus would have been required to seek a permit despite DER's contention that the statute sought to exempt precisely such small, single-family docks.

    
    

20. DER's argument that Rule 17-4.04(9)(c), Florida Administrative Code, should be upheld because it is a permissible interpretation of Section 403.813(2)(b), Florida Statutes, is without merit. Where a statute specifically places a kind of activity outside of an agency's regulatory authority, that agency cannot interpret that statute in such a way that the agency is able to assert jurisdiction over that very activity. Likewise without merit is DER's argument that its rule cannot be held invalid since it has been in place a number of years. This cause arises from an interpretation of that rule never before made. Accordingly, DER's reliance on cases upholding rules due to the passage of time is misplaced.

    
    

21. DER's suggestion that its rule is invulnerable since Petitioner's counsel is responsible for its passage is worthy of no discussion.

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

ORDERED THAT the definition of a private dock as "a single pier at a parcel of property" in Rule 17-4.04(9)(c), Florida Administrative Code, conflicts with the statutory exemption contained in Section 403.813(2)(b), Florida Statutes, and, therefore, constitutes an invalid exercise of delegated authority. It is further

ORDERED THAT DER's interpretation of the term "parcel of property" as contained in Rule 17-4.04(9)(c), Florida Administrative Code, is invalid as a rule not promulgated in compliance with the requirements of Section 120.54, Florida Statutes. It is further

ORDERED THAT Rule 17-4.04(9)(c), Florida

Administrative Code, is arbitrary and capricious as applied by DER.

DONE and ORDERED this 8th day of April, 1985 at Tallahassee, Florida.

Hearings

Hearings

LINDA M. RIGOT

Hearing Officer

Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative

this 8th day of April, 1985.

COPIES FURNISHED:

Joseph W. Landers, Jr., Esquire Philip S. Parsons, Esquire Stephen Emmanuel, Esquire

Post Office Box 391 Tallahassee, Florida 32302

Julia D. Cobb Attorney at Law Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code The Capitol - Suite 1802 Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee Florida 32301

Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

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 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.

Docket for Case No: 85-000329RX

Orders for Case No: 85-000329RX