STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITIZENS FOR RESPONSIBLE )
BOATING, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 91-7635RX
) DEPARTMENT OF NATURAL RESOURCES, )
)
Respondent, )
and )
) FLORIDA AUDUBON SOCIETY/SAVE ) THE MANATEE CLUB, )
)
Intervenors. )
)
FINAL ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on January 2 and 3, 1992, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Hal Spence, Esquire
Robert S. Thurlow, Esquire Bolt, Spence & Hall, P.A.
221 North Causeway Post Office Box 1266
New Smyrna Beach, Florida 32170-1266
For Respondent: Jonathan A. Glogau, Esquire
Department of Legal Affairs 111-36 South Magnolia Drive Tallahassee, Florida 32301
Lannette M. Price, Esquire Department of Natural Resources 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
For Intervenors: David Gluckman, Esquire
Route 5, Box 3965
Tallahassee, Florida 32301
STATEMENT OF THE ISSUES
Whether Rule 16N-22.012, Florida Administrative Code, constitutes an invalid exercise of delegated authority as defined in Section 120.52(8)(a), Florida Statutes (1991), in violation of Section 120.56, Florida Statutes (1991)?
PRELIMINARY STATEMENT
On May 10, 1991, the Respondent, the Department of Natural Resources, published notice of its intent to adopt Rule 16N-22.012, Florida Administrative Code. The proposed rule was subsequently adopted, with modifications, by the Governor and Cabinet, sitting as the head of the Respondent. Notice of the proposed rule, as modified, was published in the Florida Administrative Weekly.
On November 27, 1991, the Petitioner, Citizens for Responsible Boating, Inc., filed a Petition for Determination of the Invalidity of Florida Administrative Code Rule 16N-22.012. This petition was designated case number 91-7635RX and was assigned to the undersigned by Order of Assignment entered December 2, 1991.
On December 3, 1991, the Florida Audubon Society/Save the Manatee Club filed a Petition to Intervene. Intervention was granted by an Order entered December 5, 1991. On December 17, 1991, the Petitioner filed Petitioner's Motion to Vacate Order Granting Petition to Intervene.
On December 5, 1991, a Notice of Hearing was entered setting the final hearing of this matter for January 2, 1991, in Tallahassee, Florida. On December 13, 1991, the Petitioner filed a Motion to Change Venue. The Intervenors filed a pleading in opposition to this motion.
On December 17, 1991, the Petitioner filed a Motion in Limine.
Oral argument was heard by telephone on the motion to change venue, the motion to vacate the order granting intervention and the motion in limine.
Following argument, the parties were informed that the motion to change venue and the motion to vacate the intervention order were denied. The parties were also informed that the motion in limine, no opposition having voiced, was granted. An Order memorializing these rulings was entered on December 23, 1991.
On December 19, 1991, the Intervenors filed a motion to dismiss. The parties were informed by telephone on December 23, 1991, that the motion to dismiss was denied. An Order memorializing this ruling was entered January 6, 1992.
At the commencement of the final hearing the parties filed a Joint Stipulation to Facts. To the extent relevant, the agreed to facts contained in the Joint Stipulation have been incorporated into this Final Order.
At the final hearing the Petitioner presented the testimony of W. Warren McHone, Ph.D., Richard E. Rawlins, Michael Joseph Melon, Cheryl Corriveau, Ted Carney Ensminger, Donna Bentzien and Ted Jorgeson. Dr. McHone was accepted as an expert in economics and Mr. Ensminger was accepted as an expert in bass fishing tournaments. The Petitioner presented eleven exhibits for identification. Petitioner's exhibits 1-10 were accepted into evidence. Part of Petitioner's exhibits 5 and 7 were rejected. Petitioner's exhibit 11 was not offered into evidence.
The Respondent presented the testimony of Craig Diamond, Pat Rose and Frederick W. Bell, Ph.D. Dr. Bell was accepted as an expert in economics, natural resources economics, regional economics, and development of economic impact statements under Chapter 120, Florida Statutes. The Respondent offered 4 exhibits which were accepted into evidence.
The parties also offered eight joint exhibits. They were all accepted into evidence.
The parties have filed proposed final orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Final Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
FINDINGS OF FACT
The Parties.
The Petitioner, Citizens for Responsible Boating, Inc., is a not-for- profit corporation organized under the laws of the State of Florida. (Stipulated Fact).
The Petitioner consists of approximately 500 members who own, sell and use boats and boat related products on the waters regulated under the Respondent's, the Department of Natural Resources (hereinafter referred to as the "Department"), Rule 16N-22.012, Florida Administrative Code (hereinafter referred to as the "Challenged Rule"). (Stipulated Fact).
The main purpose of the Petitioner is to promote boating and water sports and protect the boating public's right to access and use of Florida waters. (Stipulated Fact).
The Petitioner was formed as an unincorporated entity in February, 1991, by citizens who were concerned about the direction of discussions between the Department and Volusia County officials regarding boat speed limits for Volusia County waters. (Stipulated Fact).
The Petitioner was incorporated after the Challenged Rule was proposed and enacted. (Stipulated Fact).
The goals of the Petitioner have remained the same before and after the adoption of the Challenged Rule. (Stipulated Fact).
The Petitioner's members include some entities which are "small businesses" within the meaning of Section 288.703(1), Florida Statutes. (Stipulated Fact).
The Petitioner has standing to institute and participate in this proceeding.
The Department is an agency of the State of Florida. (Stipulated Fact).
The Department is responsible for, among other things, regulating boat speeds incident to protection of manatees pursuant to Section 370.12(2), Florida Statutes. (Stipulated Fact).
The Florida Audubon Society/Save the Manatee Club is a not-for-profit corporation organized under the laws of the State of Florida. (Stipulated Fact).
The Intervenors are comprised of 40,000 members whose main purpose is to protect the state's natural outdoor environment and wildlife, including the West India manatee, for the benefit of the organization and its members. (Stipulated Fact).
The Intervenors have standing to participate in this proceeding.
Adoption of the Challenged Rule.
Section 370.12(2), Florida Statutes, the Florida Manatee Sanctuary Act, was enacted to give the Department the authority to regulate boat speeds in Florida waters to protect the manatee. (Stipulated Fact).
On May 10, 1991, the Department published notice of the predecessor of the Challenged Rule in the Florida Administrative Weekly with a summary of the purpose and effect of the Challenged Rule, and a summary of the economic impact of the predecessor of the Challenged Rule. (Stipulated Fact).
A public hearing on the predecessor of the Challenged Rule was noticed for 7:00 p.m., June 5, 1991, in Daytona Beach, Florida. (Stipulated Fact).
The economic impact statement for the predecessor to the Challenged Rule was completed on May 31, 1991 and approved on June 3, 1991. (Stipulated Fact).
On June 5, 1991, the Department held a hearing on the predecessor of the Challenged Rule in Daytona Beach, Florida. Public comments were heard. (Stipulated Fact).
Prior to the June 5, 1991, public hearing, the Department made available its Economic and Small Business Impact Statement (hereinafter referred to as the "EIS"). The EIS consisted of 41 pages.
The predecessor to the Challenged Rule was revised in response to public comments and was presented to the Governor and Cabinet, who approved the Challenged Rule on June 25, 1991. (Stipulated Fact).
The Challenged Rule was adopted and filed by the Department with the Secretary of State on July 5, 1991. (Stipulated Fact).
The Challenged Rule became effective twenty days after July, 5, 1991, on July 25, 1991. (Stipulated Fact).
The evidence failed to prove that the date that the EIS was issued by the Department and made available to the public impaired the fairness or correctness of the Department's action in promulgating the Challenged Rule.
Summary of the Economic Impact of the Challenged Rule.
The following summary of the economic impact of the Challenged Rule was published in the Florida Administrative Weekly:
Implementation of the proposed amendments will enhance the environmental benefit accruing to the citizens of the State of Florida, although speed restrictions may affect some users of the waterway and persons operating small businesses involving users of the waterway. The cost of preparing these amendments and the cost of publication in the Florida Administrative Weekly will be absorbed by the Department as standard operating costs.
The summary notice of economic impact did not specify that the terms "small businesses" refer the those terms as defined in Section 288.703, Florida Statutes.
The evidence failed to prove that the summary notice of economic impact for the Challenged Rule misled any business that was not a "small business" or the fairness or correctness of the Department's action was impaired by the summary notice.
Preparation of the Economic Impact Statement for the Challenged Rule.
The Department entered into a contract with the Florida Atlantic University/Florida International University Joint Center for Environmental and Urban Problems (hereinafter referred to as the "Joint Center") pursuant to which the Joint Center agreed to develope and deliver thirteen separate economic impact statements to the Department.
The thirteen economic impact statements were to deal with the economic impact of rules for thirteen different counties, including Volusia County and the economic impact of the Challenged Rule.
The Department agreed to pay the Joint Center $5,000.00 for the thirteen statements.
Craig Diamond, a Senior Research Associate for the Joint Center at the time the EIS was prepared, and two other individuals under Mr. Diamond's supervision prepared the thirteen economic impact statements provided to the Department.
Mr. Diamond has earned a bachelor's degree in mathematics and a masters degree in environmental engineering sciences. Although Mr. Diamond is not an economist, he has taken courses in economics. Additionally, Mr. Diamond has prepared the preliminary economic impact statements for approximately 17 to
rules, including the thirteen preliminary economic impact statements provided to the Department pursuant to the Joint Center contract. Mr. Diamond was familiar with basic economic principles necessary to prepare the EIS.
The economic impact statement involving the Challenged Rule prepared by the Joint Center (hereinafter referred to as the "Joint Center EIS") was the fifth of the thirteen economic impact statements.
The Joint Center EIS served as the basis for, and was incorporated by reference in, the EIS.
The weight of the evidence failed to prove that the fairness of the proceedings or the correctness of the Department's actions were impaired in any way by the qualifications of the persons involved in preparation of the Joint Center EIS or the EIS. This conclusion is supported by the testimony of Dr. Bell, who is an economist and was accepted as an expert in economics, natural resources economics, regional economics and development of economic impact statements under Chapter 120, Florida Statutes.
The Assessment of the Cost to the Agency of Implementation of the Proposed Action, Including an Estimate of the Amount of Paperwork.
The EIS includes an assessment of the cost to the agencies involved in implementing the Challenged Rule on pages 2-5 of the EIS. Additional information concerning costs to the agency are provided on pages 6-9 under the heading "One-time Rule-Making Costs". Pages 3-9 of the Joint Center EIS also assess these costs.
The EIS includes a discussion of the costs to the Department's Division of Marine Resources, Division of Law Enforcement and Division of Recreation and Parks and the costs for signage and maintenance of the signs.
The Department indicates in the EIS that there will be "an increase in annual administrative costs to the Department . . . " and that "[i]t is difficult to separate purely rule-making activities from the broader manatee- protection initiative."
The Department also indicates in the EIS that there will be "costs for technical, administrative, and clerical staffing associated with rule development, advertising, noticing, duplication and dissemination of materials, and staffing and other professional fees associated with the hearings and meetings held in consideration of the proposed rule." Estimates of these costs are provided on pages 8-9 of the EIS. The weight of the evidence failed to prove that these estimates are inadequate.
It is specifically estimated in the EIS that the Division of Marine Resources will incur approximately $131,453.92 in salaries and fringe benefits for staff costs. This amount is based upon an equal allocation of the total additional staff costs among the thirteen counties involved with rules similar to the Challenged Rule.
The EIS includes an estimate of additional costs associated with its Division of Law Enforcement for the costs which may be incurred as a result of enforcement of the Challenged Rule.
The estimates concerning additional enforcement costs are based upon estimates provided by Volusia County and the Division of Law Enforcement's Marine Patrol.
The EIS recognizes that the estimated costs of enforcement of the Challenged Rule "could be higher, depending on whether any new officers would need to be trained and equipped."
The EIS did not specifically address any additional costs which might be incurred by the Volusia County Sheriff's Office. The weight of the evidence, however, failed to prove that any additional costs to the Volusia County Sheriff's Officer must be incurred pursuant to the Challenged Rule or that such
costs will actually be incurred as a result of the Challenged Rule. The evidence concerning costs to the Sheriff's Office were based upon the estimates of an employee of the Sheriff's Office of the costs necessary to fulling enforce the Challenged Rule and all other laws related to waterways in Volusia County.
The evidence failed to prove, however, that Volusia County will in fact incur any additional costs to enforce the Challenged Rule because of budgetary constraints.
Although the Volusia County Sheriff's Office was not contacted by anyone from the Joint Center concerning additional costs, representatives from the Volusia County Sheriff's Office attended meetings with Department personnel concerning the Challenged Rule. The Department was specifically told by representative's of the Volusia County Sheriff's Office that no additional costs would be incurred as a result of the Challenged Rule because the Sheriff's Office was already short manpower and no additional staff could be added to enforce the Challenged Rules.
Information concerning the one-time costs and annual costs for installing and maintaining signs included in the EIS is based upon previous estimates of the Department, actual costs of posting signs in Brevard County and actual costs incurred by the Florida Inland Navigation District (hereinafter referred to as "FIND") for posting signs to implement an emergency rule controlling the speed limit in waters of Volusia County.
The information concerning the costs incurred by FIND was provided to Mr. Diamond by FIND personnel and was based upon actual costs incurred in Volusia County.
The information concerning signs considered by the Department in the EIS was applied to information concerning the miles of waterway in Volusia County impacted by the Challenged Rule.
The weight of the evidence failed to prove that the Department's estimates concerning the costs associated with signs informing the public of the requirements of the Challenged Rule are unreasonable or inaccurate.
The weight of the evidence failed to prove that the Department failed to consider, or that the EIS failed to adequately address, the costs of implementing the Challenged Rule to the Department.
The weight of the evidence failed to prove that the fairness of the proceedings or the correctness of the actions of the Department in considering the cost to agencies of implementing the Challenged Rule were impaired.
The Assessment of the Cost or Economic Benefit to All Persons Directly Affected.
The costs to persons directly affected by the Challenged Rule are discussed on pages 9-14 of the EIS. See also pages 13-21 of the Joint Center EIS. Benefits are discussed on pages 15-19 of the EIS. See also pages 21-30 of the Joint Center EIS.
The EIS, in discussing the potential cost to the commercial fishing industry, recognizes that there are conditional exemptions from some of the restrictions of the Challenged Rule in certain areas and that there are areas of water where commercial fishermen can continue their "traditionally fishing
practices". Therefore, the EIS indicates that "it is anticipated that impacts, if any, will be negligible in most cases."
The EIS also recognizes that, if an exemption is not available, there may be specific impacts on the manner in which commercial fishermen "and associated businesses" operate. It is indicated in the EIS that "[t]he exact impacts of the proposed amendments are, however, impossible to calculate."
The EIS included a range of possible impacts to the commercial fishing industry. To be more specific the Department would have had to speculate on the impact. Such speculation would not have been reasonable.
The weight of the evidence failed to prove that the failure of the EIS to contain specific estimates of the costs to the commercial fishing industry was unreasonable. The weight of the evidence also failed to prove that the conclusions of the EIS concerning the impact on commercial fishing are unreasonable.
The EIS, in discussing the potential cost to fishing guides, recognizes that there are conditional exemptions from some of the restrictions of the Challenged Rule in certain areas and that there are areas of water which are not affected by the Challenged Rule. Apparently, the reference to such areas is a reference to the waters off the coast of Florida and not necessarily the waters located just within Volusia County. Based upon these assumptions, the EIS concludes that the estimated impact on fishing guides "cannot be determined; it is anticipated that impacts, if any, will be negligible in most cases."
The EIS also recognizes that "guides (and associated businesses)", if no exemption is obtained, "may be affected by speed regulations, although the exact impacts of the proposed amendments are impossible to calculate."
The Joint Center EIS contains more specific information concerning the impact on fishing guides:
Commercial guides earn income by providing a service for tourists and residents. The service includes transport to and education about areas that support desirable species. These areas change with time of day, with weather, and with season.
Speed regulations may result in impacts to commercial guides. Because of the increases in travel time, slower speeds may mean fewer fishing stops per trip, fewer catches, and less value for the user. Exclusion of "motorized vessels" from limited entry areas could restrict guide use; however, electric trolling motors will be allowed for casting and other types of fishing. Reduction in total available area, previously traveled at higher speeds, may result in increased competition for remaining fishing spots and loss of privacy, again causing a potential drop in user value. Ultimately, any such losses could affect the prices that guides charge and the resultant revenues, or could impact associated boat rental or other businesses.
. . . .
The Joint Center EIS also contains information concerning the estimated revenue of fishing guides in Volusia County. The weight of the evidence failed to prove that the information contained in the EIS or the Joint Center EIS is inaccurate.
The weight of the evidence failed to prove that the failure of the EIS to contain specific estimates of the costs to fishing guides was unreasonable. To be more specific the Department would have had to speculate on the impact. Such speculation would not have been reasonable. The weight of the evidence also failed to prove that the conclusions of the EIS concerning the impact on fishing guides are unreasonable.
It is recognized in the EIS and the Joint Center EIS that Bass fishing tournaments will be adversely impacted by the Challenged Rule. See pages 13-14 of the EIS and pages 20-21 of the Joint Center EIS.
The EIS mentions the estimated revenue at one fish camp from Bass fishing tournaments but does not discuss estimated losses from any particular organizer of tournaments. Nor does the EIS contain an estimate of the total amount of loss to Bass fishing tournaments or associated activities.
The weight of the evidence failed to prove that the failure of the EIS to contain specific estimates of the costs associated with fishing tournaments was unreasonable. The weight of the evidence also failed to prove that the conclusions of the EIS concerning the impact on fishing tournaments are unreasonable.
The EIS includes a discussion of the potential impact on Commercial Concessions and Personal Watercraft Sales (pages 12-13; see also pages 18-19 of the Joint Center EIS), High-Speed Boat Sales (page 13; see also pages 19-20 of the Joint Center EIS), and Manufacturers of Boat/Motors (page 14).
Although recognizing the potential adverse impact on high-speed boat sales, the EIS concludes that an estimate of the impact is too speculative. The weight of the evidence failed to prove that this conclusion is not reasonable.
The EIS concludes that the impact on boat and motor manufacturers is also too speculative to estimate because of the availability of exemptions for such businesses. The EIS takes into account the possibility that some or all businesses will obtain an exemption and, if so, such exemption will alleviate the adverse impact. The weight of the evidence failed to prove that the conclusions concerning boat and motor manufacturers are not reasonable.
The EIS indicates that the Challenged Rule will:
. . . likely adversely impact fish camp and boat rental owners or operators, jetski concessionaires, and other small businesses. There may be a reduction in campsite use (and in associated sales, and revenues associated with fishing activities and events) within areas where speed restrictions would discourage travel to and from these camps at slower speeds. There would be a potential reduction in total revenues for boat rentals, storage and launching fees, bait and gasoline sales and related activities as well as other store receipts, and the potential for reduced employment opportunities . .
. .
It is concluded that the overall impact is impossible to calculate. The evidence failed to prove that these conclusions are unreasonable or inadequate.
The EIS specifically discusses the business of the President of the Petitioner, Richard E. Rawlins: Highlands Park Fish Camp (hereinafter referred to as "Highlands"). It is specifically recognized in the EIS that there is a potential adverse impact to Highlands.
At the formal hearing the Petitioner presented evidence concerning the impact on Highlands. Although the evidence concerning Highlands, to the extent it constitutes competent substantial evidence, tended to prove a more specific impact on Highlands than is included in the EIS, the evidence failed to prove that Highlands is typical of businesses of a similar type throughout Volusia County or that the Department failed to take into account the potential impact on all such businesses in Volusia County. Therefore, the evidence only proved that one particular business, Highlands, will be impacted by the Challenged Rule. This fact is specifically referenced in the EIS and was considered by the Department
The evidence concerning the adverse impact on Highlands during the time that the emergency rule regulating boat speed limits was in effect failed to prove what the cause of the adverse impact was. The evidence failed to prove that Highlands' decrease in business was caused by the emergency rule or the extent of such impact directly attributable to the emergency rule.
The owner of Highlands, Mr. Rawlings, was able to inform the Department of the potential impact on Highlands of the Challenged Rule prior to its adoption. Mr. Rawlins attended and spoke to Department officials at several meetings. Officials of the Department also visited Highlands, took a boat tour of some of the surrounding waterways and were flown over other portions of the surrounding waterways.
The evidence concerning Highlands failed to prove that the fairness of the proceedings or the correctness of the actions of the Department in considering the cost and benefits to persons directly affected by the Challenged Rule were impaired.
The weight of the evidence failed to prove that the failure of the EIS to contain specific estimates of the costs associated with was unreasonable. The weight of the evidence also failed to prove that the conclusions of the EIS concerning the impact on are unreasonable.
The weight of the evidence failed to prove that the Department failed to consider, or that the EIS failed to adequately address, the costs to persons directly affected by the Challenged Rule.
The weight of the evidence failed to prove that the Department failed to consider, or that the EIS failed to adequately address, the economic benefits to persons directly affected by the Challenged Rule.
The weight of the evidence failed to prove that the fairness of the proceedings or the correctness of the actions of the Department in considering the cost and benefits to persons directly affected by the Challenged Rule were impaired.
The Assessment of the Impact of the Proposed Action on Competition and the Open Market for Employment.
The impact of the Challenged Rule on competition and the open market for employment is discussed on pages 19-20 of the EIS. See also pages 31-33 of the Joint Center EIS. The weight of the evidence failed to prove that the Department failed to consider, or that the EIS failed to adequately address, the impact of the Challenged Rule on competition and the open market for employment.
The weight of the evidence failed to prove that the fairness of the proceedings or the correctness of the actions of the Department in considering the impact of the Challenged Rule on competition and the open market for employment were impaired.
The Data and Method Used in Making The Estimates Discussed in Sections E-F.
The EIS did not include a specific section addressing the data and methods used in making the estimates of the cost to the agencies involved in implementing the Challenged Rule, the cost or economic benefit to all persons directly affected by the Challenged Rule or the costs and impacts on competition and the open market for employment as a result of the Challenged Rule.
The data and methods used in making estimates in the EIS and the Joint Center EIS are discussed throughout the EIS and Joint Center EIS. Pages 1-2 of the EIS include a general description of how the EIS was developed and the involvement of the Joint Center in preparation of the EIS. The EIS also includes a referral to the Joint Center EIS for further information concerning data and methodologies. See pages 9 and 19.
Through the efforts of the Joint Center and the Department during the process of adopting the Challenged Rule, the Department was made aware that the Challenged Rule would have a severe financial impact on several Volusia County businesses.
Local businesses were contacted by the Joint Center to discuss the expected economic impact of the Challenged Rule.
The Joint Center relied upon information from the Department, the phone book and discussions with local business people in determining the economic impact of the Challenged Rule.
The Department and the Governor and Cabinet were provided with information concerning the economic impact of the Challenged Rule through the EIS, input at public meetings and hearings, input through telephone contacts and correspondence and through the experience of the emergency rule.
The Petitioner and its members appeared at public meetings concerning the Challenged Rule. They were given amply opportunity to discuss the economic impact of the Challenged Rule and the Department considered their input.
There were a number of businesses in Volusia County that the Department did not contact, including Boston Whaler. The evidence failed to prove that the failure to contact all businesses or any particular business or businesses impaired the fairness of the proceedings or the correctness of the Department's actions.
The weight of the evidence failed to prove that the data and methods used in preparing the EIS for the Challenged Rule were inadequate.
The weight of the evidence failed to prove that the data and methods used by the Department impaired the fairness of the proceedings or the correctness of the actions of the Department.
I. The Assessment of the Impact on Small Businesses.
The impact of the Challenged Rule on small businesses is discussed on pages 20-22 of the EIS. See also pages 34-36 of the Joint Center EIS.
The definition of "small business" included in the EIS is the definition provided for in Section 288.703, Florida Statutes, at the time the EIS the Challenged Rule was promulgated.
Effective July 1, 1991, four days before the Challenged Rule was filed by the Department with the Secretary of State, the definition of "small business" was modified. The EIS was not modified to take into account the change in the definition of "small business."
The weight of the evidence failed to prove that the Department failed to consider, or that the EIS failed to adequately address, the impact of the Challenged Rule on small businesses.
The weight of the evidence failed to prove that the fairness of the proceedings or the correctness of the actions of the Department in assessing the impact of the Challenged Rule on small businesses was impaired.
CONCLUSIONS OF LAW
Jurisdiction and Standing.
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56, Florida Statutes (1991).
Based upon a stipulation of the parties, the Petitioner and Intervenors have standing to participate in this proceeding.
The Petitioner's Challenge and Burden of Proof.
The Petitioner has alleged that the Challenged Rule is invalid pursuant to Section 120.56, Florida Statutes, for two reasons: (1) the notice of rule making published by the Department pursuant to Section 120.54(1), Florida Statutes, failed to set forth an adequate and accurate summary of the economic impact of the Challenged Rule; and (2) the Department failed to follow the applicable rule making procedures because the EIS is not in conformity with the requirements of Section 120.54(2)(b), Florida Statutes, because the EIS was not issued timely and it inadequately addresses the economic impact of the Challenged Rule.
The burden of proof in this proceeding was on the Petitioner. See Adam Smith Enterprises v. Department of Environmental Regulation, 553 So.2d 1260, (Fla. 1st DCA 1990); and Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979). In determining whether the Petitioner has met its burden of proof, the general rule that "agencies are to be accorded wide discretion in the exercise of their lawful rulemaking authority, clearly conferred or fairly implied and consistent with
the agencies' general statutory duties" has been recognized. See Department of Professional Regulation v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984).
In order to meet its burden of proof, the Petitioner was required to prove through competent substantial evidence that the notice of economic impact of the Department was inadequate under Section 120.54(1), Florida Statutes, and/or that the EIS was inadequate under Section 120.54(2)(b), Florida Statutes. Additionally, the Petitioner was required to prove that any inadequacies with the notice and the EIS impaired the fairness of the proceedings or the correctness of the Department's actions. The Department did not have the burden of proving that the notice or the EIS was adequate. It was not, therefore, necessary for the Department to provide proof of the adequacy or reasonableness of any part of the EIS. Nor did not Department have to prove that the proceedings were fair or correct.
In the proposed final order of the Petitioner it has been argued that the EIS is "incompetent evidence and therefore inadmissible in evidence . . ." for several reasons. This argument and similar arguments made by the Petitioner during the final hearing ignores the fact that it is the Petitioner, and not the Department, that had the burden of proof in this case. The EIS was offered into evidence and was accepted as a joint exhibit. This joint exhibit proved that the Department issued an economic impact statement and what the EIS reported.
It was not necessary that the truth of what the EIS reported be proved by the Department. It was the Petitioner's burden to prove that what the EIS reported was deficient and that the deficiencies with the EIS impaired the fairness of the proceedings or the correctness of the Department's actions. The Petitioner has failed to meet its burden.
Compliance with Section 120.54(1), Florida Statutes.
Section 120.54(1), Florida Statutes, requires the following:
Prior to the adoption, amendment, or repeal of any rule not described in subsection (9), an agency shall give notice of its intended action, setting forth a short and plain explanation of the purpose and effect of the proposed rule, the specific legal authority under which its adoption is authorized, and a summary of the estimate of the economic impact of the proposed rule on all persons affected by it. [Emphases added].
The Petitioner has argued that the notice of the Challenged Rule published by the Department is defective because:
. . . the two sentence summary of the EIS contained [in the notice] is inadequate to provide notice to those affected by the broad and comprehensive rule. There is no question that the Rule may affect some persons operating small businesses. There is considerable question how much the public will be affected economically and how much it costs the agency to implement the rule.
Evidently, the Petitioner is suggesting that the length of the notice (two sentences) is insufficient and that the reference to "small businesses" is
too restrictive. No authority to support these arguments has been cited. Nor is the undersigned aware of any such authority.
The weight of the evidence failed to prove that the notice is not an adequate "summary of the estimate of the economic impact of the proposed rule on all persons affect by it." The notice contains sufficient notice to alert persons impacted by the Challenged Rule that the Challenged Rule may impact them. That is all that is required by Section 120.54(1), Florida Statutes.
More detail concerning the economic impact of a rule is to be provided in the actual economic impact statement.
Although the Department could have been more precise by not referring to "small businesses", the evidence failed to prove that the use of the terms "small businesses" was intended to refer to the statutorily defined businesses contained in Section 288.703, Florida Statutes. More importantly, the evidence failed to prove that the reference to "small businesses" misled persons affected by the Challenged Rule.
Finally, the evidence failed to prove that any business that was not a legally defined small business was misled by the summary notice of the Challenged Rule or was unaware of the Challenged Rule and its potential economic impact. The evidence also failed to prove that the summary notice impaired the fairness of the proceedings or the correctness of the Department's actions.
Based upon the foregoing, it is concluded that the Petitioner failed to prove that the Department failed to comply with Section 120.54(1), Florida Statutes, in promulgating the Challenged Rule.
Compliance with Section 120.54(2)(b), Florida Statutes.
Section 120.54(2)(b), Florida Statutes, requires the following:
(b) Each agency shall provide information on its proposed action by preparing a detailed economic impact statement. The economic impact statement shall include:
An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork;
An estimate of the cost or the economic benefit to all persons directly affected by the proposed action;
An estimate of the impact of the proposed action on competition and the open market for employment, if applicable;
A detailed statement of the data and method used in making each of the above estimate; and
An analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act of 1985.
In challenging the Department's compliance with Section 120.54(2)(b), Florida Statutes, the Petitioner has first argued that the time that the EIS was issued was inconsistent with the requirements of Section 120.54(2)(b), Florida Statutes. This argument is without merit.
First, Section 120.54(2)(b), Florida Statutes, does not specify the time by which an economic impact statement is to be issued. Section 120.54(2)(a), Florida Statutes, although not raised as a basis for the Petitioner's challenge merely requires that "[e]ach agency, prior to the adoption . . . shall consider the impact of such proposed action "
[Emphasis added]. The evidence in this case proved that the Department considered the economic impact of the Challenged Rule throughout the process of adopting the Challenged Rule and that the EIS was published prior to the public hearing on the Challenged Rule. That is all that is required by Section 120.54, Florida Statutes.
More importantly, the evidence failed to prove that the Petitioner or any other person was prejudiced in any way by when the EIS was made available to the public in this case. In fact, the evidence proved that the public, including the Petitioner, had ample opportunity to inform the Department and the Governor and Cabinet of the Petitioner's perceived economic impact of the Challenged Rule before it was approved.
Next, the Petitioner has argued that the EIS is inadequate because the persons who drafted the Joint Center EIS and the EIS were not "persons who had demonstrated ability to make the determinations required by Florida Statutes s120.54(2)." There is not requirement in Section 120.54(2), Florida Statutes, that an economic impact statement be prepared by an economist. As long as the economic impact statement complies with the substantive requirements of Section 120.54, Florida Statutes, the economic impact statement is adequate.
The evidence presented by the Petitioner concerning the qualifications of the persons involved in the EIS failed to prove that Section 120.54, Florida Statutes, was not complied with. All the Petitioner proved was that Mr. Diamond and the other persons who contributed to the EIS were not "economists". The weight of the evidence failed to prove that the EIS was not adequate and in compliance with the requirements of Section 120.54, Florida Statutes. This conclusion is supported by the opinion testimony of an economists who was accepted as an expert in economic impact statements under Section 120.54, Florida Statutes. Therefore, the fact that the researchers and drafters of the EIS and the Joint Center EIS were not themselves economists is not relevant.
The Petitioner has suggested that "[t]he amount of money spent to produce the EIS for such a comprehensive Rule is inadequate as a matter of law". This argument is without merit.
The Petitioner has raised several arguments concerning the methods employed in preparing the EIS and the adequacy of the contents of the EIS. The weight of the evidence failed to support those arguments and they are rejected.
In determining the sufficiency of the EIS, the following standards have been applied:
Substantial compliance, not perfection, is all that is required of the EIS. Department of Health & Rehab.
Servs. v. Wright, 439 So.2d 937, 940 (Fla. 1st DCA 1983). The statement is sufficient if it addresses all areas required by section 120.54(2)(b), even though the estimates may be subject to debate. Florida Waterworks Ass'n v. Florida Pub. Serv. Comm'n, 473 So.2d 247 (Fla. 1st DCA 1985), review denied, 480 So.2d 596 (Fla.
1986). It is moreover not necessary for an agency to speculate on estimates for matters it cannot predict. Department of Ins. v. Insurance Servs. Office, 434 So.2d 908, 928-30 (Fla. 1st DCA 1983) (Robert P. Smith, Jr., J., dissenting, with whom Joanos, J., concurs), review denied, 444 So.2d 416 (Fla. 1984).
Florida League of Cities, Inc. v. Department of Environmental Regulation, 16
F.L.W. D1933, D1935 (Fla. 1st DCA 1991). The court in Florida League of Cities held that the economic impact statement involved in that case "addressed all areas required by the statute, and while it did not include an estimate for the cost of violations by the wastewater treatment facilities, any such estimate would have been speculative and therefore not required. Because the EIS substantially complies with section 120.54, we find no ground for reversal under this issue." Florida League of Cities at D1935.
The EIS addressed all of the items specified in Section 120.54(2)(b), Florida Statutes. The burden was on the Petitioner to prove that the EIS or some part thereof was inadequate. At best the evidence presented by the Petitioner proved that there are issues discussed in the EIS that may be subject to debate and that the Department did not estimate the extent of the economic impact of the Challenged Rule on all persons impacted where to do so would have amounted to speculation.
More importantly, the Petitioner failed to prove that "the fairness of the proceedings or the correctness of the action was impaired by any of the alleged deficiencies" within the EIS. See Florida Waterworks v. Florida Public Service Commission, 473 So.2d 237, 247 (Fla. 1st DCA 1985); and Department of Insurance v. Insurance Services Office, 434 So.2d 909 (Fla. 1st DCA 1983). The evidence presented by the Petitioner primarily questioned the methods used by the Department of conducting the research for the EIS and suggested various ways by which the EIS may have been performed in a more efficient and thorough way. The Petitioner did not, however, present sufficient evidence to prove that, had the Department been more thorough or had taken some of the steps suggested by the Petitioner, the result of the EIS would have been any different or that the proceedings would have been any fairer or correct.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition for Determination of the Invalidity of Florida
Administrative Code Rule 16N-22.012 filed in this case is DISMISSED.
DONE and ENTERED this 24th day of February, 1992, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings
this 24th day of February, 1992.
APPENDIX TO FINAL ORDER
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Final Order
of Fact Number of Acceptance or Reason for Rejection
1-14 Not proposed findings of fact.
15 1-6, 15 and 21.
16 7.
17 9-10.
18 11-12.
See 8.
See 13.
21 14.
22 15.
23 17.
24 18.
25 20.
26 21-22.
27-32 Statements of law.
33 24.
34-35 Not relevant. See 25-26.
Statement of law. 27. See 30 and 33.
Hereby accepted.
See 29.
39-40 Not supported by the weight of the evidence.
41-43 Rather than attempt to summarize findings in the EIS or the Joint EIS, the entire contents of the EIS and Joint EIS are hereby incorporated into this Final Order. See joint exhibits 3 and 4.
44 Hereby accepted. There is not requirement, however, that the results of the emergency rule be included in the EIS or that the failure to include such information impaired the fairness of the proceedings or the correctness of the Department's actions.
45 84.
46-47 Not supported by the weight of the evidence.
48 Not supported by the weight of the evidence. See 60-62.
49-50 Hereby accepted. The evidence failed to prove that the failure to make such contacts impaired the fairness of the proceedings or the correctness of the Department's actions.
51-52 Not relevant. See 34.
53 Not relevant or supported by the weight of the evidence.
54 85.
Not relevant.
Not supported by the weight of the evidence.
57 See 81-84.
58-59 Not supported by the weight of the evidence.
Hereby accepted.
Not supported by the weight of the evidence.
62-64 Not relevant.
65 See 81-84.
66 Not supported by the weight of the evidence. The evidence on this issue assumes that law enforcement is currently travelling at the speed limit. The evidence failed to prove this to be the case. See 40-44.
67-68 See 43-44. Too speculative and not supported by the weight of the evidence.
Not supported by the weight of the evidence.
See 44.
Not relevant.
Not supported by the weight of the evidence. See 53-55.
Not supported by the weight of the evidence. Too speculative.
Not supported by the weight of the evidence. Too speculative. See 56-59.
Not supported by the weight of the evidence. Too speculative.
Not supported by the weight of the evidence. Too speculative. See 46-59.
77 | See 56. | |
78 | See 57-58. | |
79 | Hereby accepted. | |
80-81 | See 60-62. | |
82 | See 68. | |
83-87, | 92 & 95 | Hereby accepted. |
88 | Based upon hearsay. Not supported by | |
the weight of the evidence. | ||
89-91 | See 69. The evidence failed to prove | |
the cause. | ||
93 | 70. | |
94 | The evidence failed to prove the cause. | |
96 | 67. | |
97 | Not relevant. | |
98 | Based upon hearsay. Not supported by |
the weight of the evidence.
Hereby accepted that River Marine Enterprises is a company offering boat sales and services and its location.
The rest of the proposed finding of fact is not supported by the weight of the evidence.
Based upon hearsay. Not supported by the weight of the evidence.
Hereby accepted.
The type of business and location of Boat Show Marina is hereby accepted.
The rest of the proposed finding of fact is not supported by the weight of the evidence.
103 See 63-66.
104 See 88-90.
105 90.
Law and not relevant. See 91-92.
Hereby accepted.
108-109 Not supported by the weight of the evidence.
110 and 112 Hereby accepted.
111, 113-117 Not supported by the weight of the evidence.
The Respondent's Proposed Findings of Fact
Proposed Finding of Fact Number | Paragraph Number of Acceptance or | in the Reason | Final Order for Rejection |
1 | 8. | ||
2 | Hereby accepted. | ||
3 | 13. | ||
4 | 19. | ||
5 | Hereby accepted. | ||
6 | 35. | ||
7 | 51. | ||
8 | 76-77. | ||
9 | 79. | ||
10 | 88-92. | ||
11 | 80. | ||
12 | 67. | ||
13 | Not relevant. | ||
14 | 43. | ||
15-16 | 31. | ||
17 | 81-82. | ||
18 | 82. | ||
19-20 | 41. | ||
21 | Hereby accepted. | ||
22 | 46. | ||
23 | 45-46. | ||
24 | 44-47. | ||
25 | 41-44. | ||
26 | 53, 56 and 65. | ||
27 | 34. | ||
28 | 34. |
29-32 | Hereby accepted. |
33 | 54. |
34 | 56 and 59. |
35 | 67. |
36 | 60-61. |
37 | 63-66. |
38-39 | 66. |
40 | 83. |
41-42 COPIES FURNISHED: | 84. |
Hal Spence, Esquire Robert S. Thurlow, Esquire Bolt, Spence & Hall, P.A.
221 North Causeway Post Office Box 1266
New Smyrna Beach, Florida 32170-1266
John Glogau, Esquire
Department of Natural Resources
111 South Magnolia Drive, Suite 36 Tallahassee, Florida 32301
Lanette Price, Esquire Department of Natural Resources
3900 Commonwealth Boulevard, Room 922
Tallahassee, Florida 32399-3000
David Gluckman Route 5, Box 3965
Tallahassee, Florida 32301
Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
Don E. Duden
Acting Executive Director Department of Natural Resources 3900 Commonwealth Boulevard
Mail Station #10
Tallahassee, Florida 32399-3000
Ken Plante General Counsel
Department of Natural Resources 3900 Commonwealth Boulevard
Mail Station #10
Tallahassee, Florida 32399-3000
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 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.
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 1993
CITIZENS FOR RESPONSIBLE NOT FINAL UNTIL THE TIME EXPIRES BOATING, INC., TO FILE REHEARING MOTION, AND,
IF FILED, DISPOSED OF.
Appellant,
CASE NO. 92-687
vs. DOAH CASE NO. 91-7635RX
DIVISION OF ADMINISTRATIVE HEARINGS, DEPARTMENT OF NATURAL RESOURCES, et al.,
Appellee.
/ Opinion filed February 12, 1993.
Administrative Appeal from the Department of Natural Resources.
Hal Spence of Bolt, Spence & Hall, P.A., New Smyrna Beach, for Appellant.
Robert A. Butterworth, Attorney General, Jonathan A. Glogau, Assistant Attorney General, and David Gluckman, Tallahassee, for Appellees.
PER CURIAM.
AFFIRMED. See Polk v. School Bd. of Polk County, 373 So.2d 960 (Fla. 2d DCA 1979).
COBB, PETERSON and GRIFFIN, JJ., concur.
MANDATE
From
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
This cause having been brought to this Court by appeal, and after due consideration the Court having issued its opinion;
YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this Court attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the State of Florida.
WITNESS the Honorable Gilbert S. Goshorn, Jr., Chief Judge of the District Court of Appeal of the State of Florida, Fifth District, and the Seal of said Court at Daytona Beach, Florida on this day.
DATE: March 3, 1993. FIFTH DCA CASE NO.: 92-687
COUNTY OF ORIGIN: Volusia
TRIAL COURT CASE NO.: 91-7635RX (Administrative)
FRANK J. HABERSHAW CLERK
| Issue Date | Proceedings |
|---|---|
| Apr. 16, 1993 | Opinion and Mandate filed. |
| Jul. 24, 1992 | Index, Record, Certificate of Record sent out. |
| May 12, 1992 | Index & Statement of Service sent out. |
| Apr. 03, 1992 | Directions to Clerk(from Hal Spence) filed. |
| Apr. 03, 1992 | (Petitioner) Directions to Clerk filed. |
| Mar. 23, 1992 | Certificate of Notice of Appeal sent out. |
| Mar. 23, 1992 | Notice of Administrative Appeal filed. |
| Feb. 24, 1992 | CASE CLOSED. Final Order sent out. Hearing held 1/2-3/92. |
| Feb. 03, 1992 | CC Letter to Pat Rose from Kathleen A. Condit (re: statement) filed. |
| Jan. 29, 1992 | Ltr to LJS from R.S. Thurlow enclosing floppy disk containing the Final Order and requesting that previously delivered diskette be disregarded filed. |
| Jan. 27, 1992 | (Proposed) Final Order (unsigned) w/Flexible Disk of Final Order & attachments filed. |
| Jan. 27, 1992 | Respondent and Intervenors` Joint Proposed Final Order filed. |
| Jan. 16, 1992 | Transcript (Volumes 1-3) filed. |
| Jan. 09, 1992 | Subpoena Duces Tecum w/Affidavit filed. (From Hal Spence) |
| Jan. 06, 1992 | Order Denying Florida Audubon Society/Save the Manatee Club`s Motion to Dismiss sent out. |
| Jan. 02, 1992 | Final Hearing Held 1/2-3/92; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk's Office case file. |
| Jan. 02, 1992 | (Petitioner) Notice of Filing Deposition; Deposition of C. Diamond; Deposition of D. Bentzien filed. (filed with Hearing Officer). |
| Jan. 02, 1992 | Citizen`s for Responsible Boating, Inc. List of Trial Exhibits; Notice of Filing Interrogatories; Respondents` Answers to First Interrogatories; Request to Produce at Trial; Joint Stipulation to Facts filed. (filed with Hearing Officer). |
| Dec. 30, 1991 | (Petitioner) Notice of Service of Answers to Interrogatories filed. |
| Dec. 23, 1991 | Order Denying Petitioner`s Motion to Vacate Order Granting Petition to Intervene, Denying Petitioner`s Motion to Change Venue and Granting Petitioner`s Motion in Limine sent out. |
| Dec. 20, 1991 | Petitioner`s Memorandum in Opposition to Intervenors Motion to Dismiss filed. |
| Dec. 19, 1991 | Respondent`s Interrogatories to Petitioner; Respondent`s Request for Production of Documents filed. |
| Dec. 19, 1991 | Florida Audubon Society/Save the Manatee Club`s Motion to Dismiss filed. |
| Dec. 17, 1991 | Petitioner`s Motion in Limine; Petitioner`s Motion to Vacate Order Granting Petition to Intervene filed. |
| Dec. 16, 1991 | (Petitioner) Notice of Taking Deposition (3) filed. |
| Dec. 13, 1991 | Petitioner`s Motion to Change Venue filed. |
| Dec. 13, 1991 | Florida Audubon Society/Save the Manatee Club`s Petition Notice in Opposition to Change of Venue filed. |
| Dec. 05, 1991 | Order Granting Petition to Intervene sent out. (for Florida Audubon Society/Save the Manatee Club). |
| Dec. 05, 1991 | Notice of Hearing sent out. (hearing set for JAN. 2, 1992; 10:00AM; Tallahassee). |
| Dec. 03, 1991 | Florida Audubon Society/Save the Manatee Club`s Petition to Intervene filed. |
| Dec. 02, 1991 | Order of Assignment sent out. |
| Dec. 02, 1991 | Letter to Liz Cloud & Carroll Webb from Marguerite Lockard |
| Nov. 27, 1991 | Petition for Determination of the Invalidity of Florida Administrative Code Rule 16N-22.012 filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 12, 1993 | Opinion | |
| Feb. 24, 1992 | DOAH Final Order | Inadequacy of notice of economic impact statement and the statement itself not proved. |
