STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

J.O. GUTHRIE FISH CO., INC., ) SIGMA INTERNATIONAL, INC., ) SEAFOOD CONSUMERS AND ) PRODUCERS ASSOCIATION, INC., )

A.P. BELL FISH CO., SUNSHINE ) BOATS, INC., FISHERMEN'S ) ICE & BAIT, INC., THOMAS R. ) FULFORD, CARL D. MORAL, )

STEVE LEONARD, and HARRY ) CASE NO. 93-1478RP MOFIELD, )

)

Petitioners, )

)

vs. )

) MARINE FISHERIES COMMISSION, )

)

Respondent. )

)

FINAL ORDER

By petition to determine the invalidity of a proposed rule, and alternative petition to determine the invalidity of an existing rule, petitioners challenge respondent's proposed Rule 46-4.014 as an invalid exercise of legislative authority concededly delegated to the Marine Fisheries Commission. In keeping with Rules 60Q-2.016 and 60Q-2.030(1), Florida Administrative Code, pending motions came on for hearing on April 6, 1993.

Filed with the alternative petitions was a motion for summary final order on grounds that the Marine Fisheries Commission

by providing only 26 days notice prior to the rule adoption hearing, rather than 28 days as required by Section 120.54(1)(b), Florida Statutes . . . materially failed to follow the applicable rulemaking procedures.

Memorandum in support of petitioner's motion for summary final order, p. 2. The petitions were met both by respondent's motion in limine to limit the issues before the hearing officer, in which the Commission contended that "if the 26 day public hearing was a violation, it can properly be raised in a 120.56 challenge," and by the Commission's motion to dismiss Section 120.56 challenge.

The Commission also filed respondent's opposition to motion for summary final order; and respondent's motion to strike, seeking to eliminate issues pertaining to economic and small business impact statements on grounds petitioners lacked standing to raise such issues. As events unfolded, it proved unnecessary to decide respondent's motion to strike.

Rule Not Yet Adopted

The challenged rule has not yet been approved by the Governor and Cabinet, as required by Section 370.027(3)(a), Florida Statutes (1991), nor been filed with the Secretary of State, as required by Section 120.54(4), Florida Statutes (1992 Supp.). In light of the petitioners' failure to allege that proposed Rule 46-4.014 purports, in its present posture, to have the force and effect of law statewide, see, e.g., State Department of Administration v. Stevens, 344 So.2d 290, 296 (Fla. 1st DCA 1977), respondent's motion to dismiss Section 120.56 challenge should be granted.

Challenge to Proposed Rule

But material procedural irregularities in the course of rulemaking may also be redressed in proceedings pursuant to Section 120.54(4), Florida Statutes (1992 Supp.). In Department of Health and Rehabilitative Services v. Florida Medical Center, 578 So.2d 351 (Fla. 182 DCA 1991), the court upheld an order invalidating a "proposed" rule on grounds the rule as filed with the Secretary of State differed impermissibly from the notice of intent to adopt published in the Florida Administrative Weekly. There, as here, the petition challenging the proposed rule was filed more than 21 days after publication of the notice of intent to adopt but within 21 days of petitioners' first notice of the procedural irregularity.

In the present case, respondent concedes the timeliness of petitioners' challenge to its proposed rule, but argues that the challenge should be limited to the grounds allowed in Department of Health and Rehabilitative Services v.

Florida Medical Center, supra. Especially since the rule under challenge here has not been filed with the Secretary of State, however, which means that the procedural error can still be cured, respondent's attempt to limit the issues in this fashion is rejected.

Action Premature

Petitioners complain that respondent failed to wait the requisite 28 days after January 8, 1993, the day it published notice of intent to adopt a rule, before its "adoption" of the version of the rule under challenge here. Section 120.54(1), Florida Statutes (1992 Supp.), requires:

Prior to the adoption, amendment, or repeal of any rule . . . 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, and the specific legal authority under which its adoption is authorized.

Section 120.54(1)(b), Florida Statutes (1992 Supp.), provides that 28 days must elapse before the "intended action" is taken:

The notice shall be published in the Florida Administrative Weekly not less than 28 days prior to the intended action . . . .

The "intended action" here is "adoption . . . of any rule." Section 120.54(1), Florida Statutes (1992).

Rule adoption for purposes of these provisions may, but need not, occur in conjunction with a hearing conducted pursuant to Section 120.54(3), Florida Statutes (1992 Supp.) On the question of what constitutes "adoption" of a rule, the First District has said:

A reading of the language in F.S. 120.54, and related sections, reveals that rule "adoption" is a process. The process of adoption outlined in the Florida Administrative Procedure Act (APA) includes the publication and delivery of requisite notice, (F.S.

120.54(1)) the development of an economic impact statement (F.S. 120.54(2)), the consideration (under certain circumstances) of evidence and arguments presented at a public hearing (F.S. 120.54(3)), the filing of the proposed rule with the legislative Administrative Procedures Committee (F.S.

120.54(11)(a)) and the filing of the proposed rule with the Department of State (F.S.

120.54(11)(b)).

A[n] . . . additional step in the adoption process . . . arises when . . . [a] Commission initially adopts a rule subject to final action by the Governor and Cabinet.

Finally, F.S. 120.54(12) [now 13], states that a proposed rule "shall be adopted on being filed with the Department of State and become effective twenty days after being filed, on a later date specified in the rule, or on a date required by statute." . . . The latter statute provides a definite benchmark for the completion of the adoption process.

The Industry contends that it is the Commission's "approval" portion of the rulemaking process which is the "adoption" prohibited by F.S. 120.54(4)(c) until after the hearing officer has rendered his decision. We agree.

Agrico Chemical Co. v. State Department of Environmental Regulation, 365 So.2d 759, 764 (Fla. 1st DCA 1978) (reh. den. 1979) (Emphasis omitted.) When the Commission approved the challenged rule on the 26th day, it violated a statutory requirement, which left petitioners minutes or hours in which to present information concerning new aspects of the challenged rule, instead of more than two days, which would have been available, if the statute had been adhered to.

In the case of premature approval of a rule adopted exactly in the form proposed in the notice of intent to adopt, it might not be appropriate to infer that the prematurity was material. But see Florida Department of Transportation

1. Foster and Keeisar, Inc., 365 So.2d 224, 225 (Fla. 1st DCA 1978). An inference of materiality is clearly warranted here, however, where significant changes were approved with little or no notice to petitioners. On the other hand, respondent is now free to correct the procedural error by reapproving the proposed rule, now that 28 days have run from publication of the notice of intent to adopt.

   RECOMMENDATION

   
   

   It is, accordingly, ORDERED:

   1. Respondent's motion to dismiss Section 120.56 challenge is granted.

      
      

   2. Respondent's purported approval of proposed Rule 46-4.014 on February 3, 1993, is null, void and of no effect.

DONE AND ENTERED this 7th day of April, 1993, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 8th day of April, 1993.

COPIES FURNISHED TO:

Richard S. Brightman, Esquire

C. Allen Culp, Jr., Esquire Hopping, Boyd, Green & Sams Post Office Box 6526 Tallahassee, Florida 32314

Denis Dean, Esquire Jonathan A. Glogau, Esquire The Capitol, PL-01 Tallahassee, FL 32399-1050

Charles Shelfer, Esquire General Counsel

Marine Fisheries Commission

2540 Executive Center Circle, West Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250

Russell S. Nelson Executive Director

Marine Fisheries Commission Suite 106

2540 Executive Center, Circle W. Tallahassee, Florida 32301

Charles Shelfer, Esquire General Counsel

Marine Fisheries Commission 2540 Executive Center Circle W. Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

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 FIRST DISTRICT, STATE OF FLORIDA

MARINE FISHERIES COMMISSION, NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant/ DISPOSITION THEREOF IF FILED

Cross-Appellee,

CASE NO. 93-1157

v. CASE NO. 93-1478RP

J.O. GUTHRIE FISH CO., INC., SIGMA INTERNATIONAL, INC., SEAFOOD CONSUMERS AND PRODUCERS ASSOCIATION, INC.,

A.P. BELL FISH CO., SUNSHINE BOATS, INC., FISHERMEN'S ICE & BAIT, INC., THOMAS R. FULFORD, CARL D. MORAL, STEVE LEONARD, and HARRY MOFIELD,

Appellees/

Cross-Appellants.

/ Opinion filed March 22, 1994.

An appeal from an order of the Division of Administrative Hearings.

Robert A. Butterworth, Attorney General and Jonathan A. Glogau, Assistant Attorney General, Tallahassee, for Appellant.

Richard S. Brightman and C. Allen Culp, Jr. of Hopping, Boyd, Green & Sams, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

MINER, KAHN and LAWRENCE, JJ., CONCUR.

Docket for Case No: 93-001478RP

Orders for Case No: 93-001478RP