STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN ARMENIA, )

Petitioner,

vs. CASE NO. 91-3249RU

BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND and DEPARTMENT OF NATURAL RESOURCES,

Respondent.

and

CITY OF SANIBEL and RALPH CLARK, ET AL.,

Intervenors.

/

FINAL ORDER

Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Tallahassee, Florida.

APPEARANCES

FOR PETITIONER: Kenneth G. Oertel, Esquire

OERTEL, HOFFMAN, ET AL.

2700 Blair Stone Road

P.O. Box 6507

Tallahassee, Florida 32314-6507

FOR RESPONDENTS: John Costigan, Esquire

Edwin Steinmeyer, Esquire Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FOR INTERVENORS: Robert D. Pritt, Esquire City of Sanibel (City of Sanibel)

800 Dunlop Road

Sanibel, Florida 33957

(Ralph Clark, Mark A. Ebelini, Esquire et al.) HUMPHREY & KNOTT, P.A.

1625 Hendry Street Ft. Myers, FL 33901

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether a statement promulgated by an employee or representative of the Respondent, Department of Natural Resources ("DNR"), by letter of April 2, 1991, and the later adoption or ratification of that opinion by the Respondent, Board of Trustees of the Internal Improvement Trust Fund ("Board"), by resolution of June 12, 1991, constitutes an unpromulgated rule or amendment of a rule and thus whether it is an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

This cause arose on May 24, 1991 when the Petitioner, John Armenia, filed a petition for formal proceeding, as well as a petition for determination of invalidity of an unadopted rule, alleging that a statement contained in a letter issued by DNR, was a rule, not duly promulgated, and thus that it constituted an invalid exercise of delegated legislative authority. The rule challenge petition was duly transmitted to the Division of Administrative Hearings and assigned to a Hearing Officer. It was set for hearing and heard by the undersigned Hearing Officer on August 8 and 9, 1991. The agency statement in question, in effect, made a determination that the Petitioner's proposed project to construct an elevated driveway or timber bridge across Clam Bayou to Silver Key on Sanibel Island in Lee County, Florida, was within the boundaries of the Pine Island Sound Aquatic Preserve ("preserve"), an outstanding Florida water body lying, in pertinent part, adjacent to Sanibel Island in Lee County, Florida. The construction project involved is the subject of a separate Section 120.57(1), Florida Statutes, proceeding involving a permit application with the Department of Environmental Regulation ("DER"), which is now pending for adjudication before the Division of Administrative Hearings, in Case Nos. 91- 1320 through 91-1324.

The Petitioner has also filed a petition for a formal Section 120.57(1), Florida Statutes, administrative proceeding, in which he challenges the correctness of DNR's initial determination and the ratification of it by the Board. That matter has been assigned Case No. 91-3770 and was consolidated for hearing purposes with the instant case, but is the subject of a separate Recommended Order, being rendered in that case.

The matter was initially set for hearing on June 28, 1991, in Tallahassee, Florida, but was continued by agreement of the parties to August 8 and 9, 1991, to be heard at the same location.

The cause came on for hearing as noticed, at which the Petitioner presented the testimony of five witnesses and offered 23 exhibits into evidence. All but exhibit 15 were received into evidence. The Respondent presented the testimony of one witness, and Respondent's Exhibits 1-9 were received into evidence.

Subsequent to the hearing, a transcript of the proceeding was obtained and the parties submitted proposed findings of fact and conclusions of law. The proposed findings of fact submitted by the parties were submitted in a combined fashion with proposed findings of fact related to the Section 120.57(1), Florida Statutes, case, under Case No. 91-3770, and have been ruled upon specifically in the Appendix attached to the Recommended Order entered in that case. The rulings made on those proposed findings of fact in that Appendix, to the extent that they relate to the issues concerning whether the agency action in question was an improperly promulgated rule or amendment of a rule, are adopted and incorporated herein by reference.

FINDINGS OF FACT

1. The Petitioner has applied for a dredge and fill permit from DER. If the application is approved, the Petitioner intends to construct a 490-foot elevated driveway or timber bridge across Clam Bayou from the Sanibel-Captiva Island Road to Silver Key, on and in the vicinity of Sanibel Island in Lee County, Florida. The Petitioner proposes to construct the bridge so as to allegedly provide reasonable access to the property upon which he intends to construct residences. A number of protests to that application before DER have been filed and the petitions related to that application are now pending before the Division of Administrative Hearings for formal proceedings in Case Nos. 91- 1320 through 91-1324.

   
   

2. The Board is an agency of the State of Florida created pursuant to Section 253.02, Florida Statutes, and consists of the Governor and Cabinet. Generally, title to submerged lands underlying navigable waters is vested in the Board pursuant to Section 253.03, Florida Statutes. The Board is authorized to approve activities in the preserve by Section 258.42, Florida Statutes. DNR is an agency of the State of Florida and serves as the staff of the Board.

   
   

3. When DER reviewed the Petitioner's dredge and fill permit application, it determined that Clam Bayou was not within the Pine Island Sound Aquatic Preserve, an aquatic preserve created by act of the Legislature in 1975 and codified at Subsection 258.39(22), Florida Statutes. However, on April 2, 1991, DNR, through an employee or representative in its Fort Myers district office, sent a letter to the City of Sanibel ("City"), the Petitioner in Case No. 91- 1324, advising the City that the proposed project was within the boundaries of the preserve. That letter stated, in pertinent part, as follows:

   
   

   To follow up our recent discussions regarding the referenced file, I requested that the department's title and land records section in Tallahassee `re-review' the project site to determine if it is actually in the Pine Island Sound Aquatic Preserve. As you know, the title and land records section initially determined that the project site was not within the aquatic preserve. In response to my request, Kathy Miklus, planner, title and land records section, provided me with information indicating that the project site is indeed within the boundaries of Pine Island Sound Aquatic Preserve. Copies of that information are enclosed.

   
   

   Therefore, it would appear that the application will be subject to the applicable criteria of Section 258.42, Florida Statutes, and Chapter 18-20, Florida Administrative Code, regarding activities in aquatic preserves. However, as we previously discussed, the application is currently `on hold' because of the coastal island moratorium adopted in 1989 by the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund, and may be subject to the pending rule amendments

   regarding sovereignty, submerged lands surrounding coastal islands, if those rule amendments are ultimately adopted by the Board of Trustees...

   
   

4. DNR is the agency charged with administering the aquatic preserve program, its preserves, and with resolving issues concerning the boundaries of those preserves. Thus, the effect of the letter, if it were to become final agency action, would be to impose a more restrictive body of rules on the Petitioner concerning his entitlement to the DER permit sought from DER because if the site in question were determined to be within the preserve, it would, under the applicable rules of DER, be deemed to be within Outstanding Florida Waters. The Petitioner thus filed the petition which initiated this proceeding, contending, in essence, that the statement in the letter (as adopted by the Board) amounts to an illicit, unpromulgated rule, including the contention that it constitutes an improper repeal or amendment of the existing Rule 18- 20.002(7)(a)19., Florida Administrative Code.

   
   

5. The questioned language in the letter at issue and under challenge reads as follows:

   
   

   The project site is indeed within the boundaries of the Pine Island Sound Aquatic Preserve.

   
   

6. According to the Petitioner, this language enlarges upon or amends the existing rule cited above which describes the preserve as follows:

   
   

   Pine Island Sound Aquatic Preserve, as described in the Official Records of Lee County in Book 648, pages 732-736.

   
   

7. The document recorded at the referenced Official Record Book and page numbers is the Board's Resolution No. 70-25, the document establishing the preserve and containing the legal description of its boundaries.

   
   

8. The Petitioner contends that the Respondent's statement reflected in the above-quoted portion of the letter is a new statement of the boundary of the preserve, and it is materially different than the rule-adopted, recorded boundary description. Thus, the Petitioner asserts that the agency has clearly amended its rule describing the preserve. The statement in the letter, however, does not constitute a new statement of the boundaries of the preserve but rather the opinion of agency personnel, adopted by the Board, concerning what the already- adopted and recorded boundary description means in the view of the agency as to whether a specific site and project is included within those already-adopted boundaries. It was not proven in this proceeding that the agency statement referenced above evidences any intent to amend or change the legal description of the preserve as recorded in the Official Records of Lee County, Florida, and as codified in the above-cited rule. Rather, it represents an interpretation of that existing rule and its existing boundary description by DNR and, specifically, amounts to an interpretation concerning whether the Petitioner's property is located within the legal boundaries as presently codified in that rule.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding pursuant to Section 120.56, Florida Statutes (1989).

   
   

10. The Petitioner bears the burden of proving that the challenged statement is a rule, not duly promulgated, and thus is an invalid exercise of delegated legislative authority. See, e.g., Agrico Chemical Co. v. State Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978).

    
    

11. Subsection 120.52(16), Florida Statutes (1989), defines a rule as follows:

    
    

    `Rule' means each agency statement of general applicability that implements, interprets, or prescribes laws or policy or describes the organization, procedure, or practice requirements 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.

    The term also includes the amendment or repeal of a rule....

    
    

    Therefore, if the statement is found to be an amendment of an existing rule, as a statement of general applicability implementing, interpreting or prescribing agency policy, it would meet the statutory definition of a rule and, if not properly promulgated in accordance with Section 120.54, Florida Statutes (1989), would constitute an invalid exercise of delegated legislative authority. The Petitioner, in essence, contends that the statement contained in the letter constitutes an effort on the part of DNR to amend its existing Rule 18- 20.002(7)(a)19., Florida Administrative Code, the rule containing the legal description of the preserve, in essence, by enlarging the boundaries of the preserve to include the Petitioner's project site. Thus, the Petitioner argues that if the agency has, by asserting that Clam Bayou and the project site is included within the preserve, expanded its size, then they have amended the rule which legally describes the bounds of the preserve. If so, the rule would be invalid because it was not promulgated pursuant to Section 120.54, Florida Statutes, and because the Aquatic Preserve Act of 1975 requires that an amendment to the preserve must receive statutory confirmation by the Legislature, which has not occurred here. See Section 258.41(1), Florida Statutes.

    
    

12. A number of judicial decisions have provided instructive advice for determining whether an agency action constitutes a rule. In Balsam v. Department of Health and Rehabilitative Services, 452 So.2d 976, 977-78 (Fla. 1st DCA 1984), the court held that:

    
    

    Any agency statement is a rule if it purports in and of itself to create certain rights and adversely affect others or serves by its own effect to create rights or to require compliance or otherwise to have the direct and consistent effect of law.

13. Having considered the testimony and evidence adduced and the above Findings of Fact, it is concluded that the agency statement in question, the above-quoted statement from the DNR letter, does not accord with the definition of a rule because it is not a statement of general applicability, that implements, interprets or prescribes laws or policy or imposes any requirement not already required by an existing rule. The statement in the letter from DNR does not itself purport to create certain rights and adversely affect others. It does not in and of itself create or abrogate any legal rights in any person or require any compliance with the view asserted in the above-quoted agency statement. Rather, the statement contained in the letter, to the effect that

    the Petitioner's project site is, indeed, within the boundaries of the preserve, is merely an expression of opinion by one agency employee, later adopted by the agency head, of what is meant by the legal description of the preserve, as already recorded in the public records of Lee County, Florida, and codified in the subject rule cited above. It is an interpretation of what that agency manager and later the agency head itself believed the already-adopted boundaries of the preserve include, in terms of the land area of the Petitioner's project site. It is merely, in other words, an interpretation of the scope of the existing rule, not a change to the existing rule. It is not of general applicability intended by the agency to be a notice to all potentially-affected members of the public that the statement was to create certain rights, to require any compliance or otherwise to have any direct, consistent force of law. Accordingly, it is concluded that the subject agency statement is not a rule or amendment of the rule in question.

    
    

14. Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore

ORDERED that the petition challenging the statement referenced in the Findings of Fact and Conclusions of Law above, contained in the letter issued on April 2, 1991 by personnel of DNR and adopted by the Board, be DISMISSED.

DONE AND ORDERED this 9th day of December, 1991, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1991.

COPIES FURNISHED:

Ken Plante, Esq.

General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Mail Station #10

Tallahassee, FL 32399-3000

Kenneth G. Oertel, Esq. OERTEL, HOFFMAN, ET AL.

2700 Blair Stone Road

P.O. Box 6507 Tallahassee, FL 32314-6507

John Costigan, Esq. Edwin Steinmeyer, Esq.

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Robert D. Pritt, Esq. City of Sanibel

800 Dunlop Road

Sanibel, FL 33957

Mark A. Ebelini, Esq. HUMPHREY & KNOTT, P.A.

1625 Hendry Street Ft. Myers, FL 33901

NOTICE OF RIGHT TO JUDICIAL REVIEW

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: 91-003249RU

Orders for Case No: 91-003249RU