STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICK MARTINEZ, )

)

Petitioner, )

)

vs. ) Case No. 97-3863RE

)

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing by videoconference in the above-styled case on September 5, 1997. Petitioner, his counsel, and the court reporter participated from the Park Trammell Building conference center in Tampa, Florida. The Administrative Law Judge presided from the Division of Administrative Hearings conference center in Tallahassee, Florida, where Respondent's counsel and witnesses were located.

APPEARANCES

For Petitioner: T. Elaine Holmes, Esquire

Stewart Joyner Jordan-Holmes Holmes, P.A.

Post Office Box 172297 Tampa, Florida 33672-0297

For Respondent: Floyd Hennen, Esquire

Department of Agriculture and Consumer Services

515 Mayo Building

407 South Calhoun Street Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUES

Petitioner has challenged a series of emergency rules promulgated by the Respondent to address the discovery of Mediterranean fruit flies (medflies) in parts of central Florida. Specifically, Petitioner contends that 5BER 97-3, 5BER 97-4, 5BER 97-6, and 5BER 97-7 are invalid to the extent that they make any geographical area subject to emergency rule for more than 90 days. The issue for determination, therefore, is whether the emergency rules are invalid as claimed.

PRELIMINARY STATEMENT

On August 22, 1997, Petitioner Rick Martinez filed his petition for administrative determination of invalidity of an emergency rule. The case was assigned and was promptly set for hearing.

On September 2, 1997, Petitioner filed a motion for leave to amend his petition. The amended petition added more recently promulgated emergency rules and added further grounds for the challenge.

In a telephone hearing conducted on September 3, 1997, Petitioner agreed to drop the additional grounds for challenge. Without objection, the motion to amend was granted to permit challenge to the additional emergency rules. Also in this motion hearing, counsel for Respondent stipulated to the standing of Petitioner, thereby obviating the necessity of evidence to establish that standing.

At the evidentiary hearing, Petitioner testified on his own behalf and presented testimony of Richard Gaskalla, Director of the Division of Plant Industry, Department of Agriculture and Consumer Services. Without objection, Petitioner's Exhibit no. 1 (a May 30, 1997, Proclamation by Commissioner of Agriculture Bob Crawford), Exhibit no. 2 (five emergency rules), and Exhibit

no. 3 (a map) were received in evidence.

Respondent also presented Richard Gaskalla's testimony.

Respondent's Exhibits 1a through 1f (a series of maps) and Exhibit no. 2 (Medfly Cooperative Eradication Program Final Environmental Impact Statement) were received in evidence.

The transcript of proceedings and the parties' proposed orders were filed on September 12, 1997. This order is being entered to comply with the expedited deadlines for emergency rule challenges in Section 120.56(5), Florida Statutes.

FINDINGS OF FACT

1. Petitioner Rick Martinez resides and operates an organic farming business in Tampa, Hillsborough County, Florida. As stipulated, Mr. Martinez is substantially affected by the emergency rules at issue.

2. The Mediterranean fruit fly (medfly) is considered one of the world's most serious pests affecting fruits and vegetables. It has a host range of over 260 different fruits and vegetables, 80 of which are grown in the state of Florida. It is

   an exotic pest of grave concern to commercial agricultural interests as well as to home gardeners.

3. In the adult stage, the female medfly deposits or lays eggs in ripe fruit. The eggs develop into larva or maggots that feed on pulp of the interior portion of fruit, causing damage and secondary pathogens to enter the fruit and causing the fruit to rot and fall from the tree. The medfly reproduces very rapidly. It can complete a life-cycle in as little as 18 days under optimum conditions; in Florida and in recent months, it completed its life-cycle in approximately 23-25 days. As a winged insect the medfly can move several miles from its point of introduction in search of a host to deposit eggs or in search of a food source. Over a lifetime, the female can lay hundreds or thousands of eggs.

4. The medfly enters an area via the traveling public or on commercial fruits and vegetables. Host plants or fruits can include plants or fruits that are not grown in Florida. The Florida Department of Agriculture and Consumer Services (FDACS) maintains a detection program, including 13,000 traps to detect the presence of the medfly. Under certain circumstances for every medfly detected, there can be hundreds of others in the area.

5. Because of the biology of the medfly, mere control is difficult to achieve. Eradication, or complete elimination of the pest from a particular area, is the goal when the medfly is

   detected. To further this goal, Florida cooperates with the U.S. Department of Agriculture and other states.

6. On or about May 28 or 29, 1997, a medfly was discovered in the Seminole Heights area of Hillsborough County. Very quickly other medflies were discovered in Hillsborough County, with the epicenter determined to be in the Brandon area. Soon other detections occurred in Manatee, Sarasota, Orange, and Polk Counties. This was determined to be the most severe infestation of medflies in Florida in several decades.

7. On May 30, 1997, Commissioner of Agriculture, Bob Crawford, issued a proclamation announcing an immediate danger to the public health, safety, or welfare in the state of Florida on account of the infestation by the Mediterranean fruit fly. The proclamation cited authority and powers conferred by Article IV, Section 4, Florida Constitution and Sections 120.54(4) and 570.07(21), Florida Statutes. The proclamation called for immediate eradication procedures including aerial and ground pesticide applications in infested areas.

8. FDACS also promulgated and filed an emergency rule, 5BER 97-2, Florida Administrative Code, "Mediterranean Fruit Fly Rule and Quarantine." The rule provided definitions, designated a quarantine area and treatment area, identified regulated articles and host plants, and provided for entry of authorized representatives to inspect, confiscate suspect fruit, or apply treatment on property on which the medfly is known or suspected

   to exist. The rule also declared the medfly a pest and nuisance pursuant to Section 581.031(6), Florida Statutes, and described the rule's purpose:

   . . . to provide detailed direction for conducting a regulatory and eradication program to prevent spread of the Mediterranean fruit fly, Ceratitis capitata, within the State. This rule is promulgated to provide a quarantine on areas regulated due to the presence of the Mediterranean fruit fly, and to specify conditions under which regulated articles may be certified as free of Mediterranean fruit fly when moved from the quarantined area. This rule also provides for the treatment and eradication of the Mediterranean fruit fly within the State of Florida.

   (5BER 97-2(2), Florida Administrative Code)

   
   

9. The quarantine area within 5BER 97-2 is an area of Hillsborough County described with specificity with references to road boundaries. The treatment area was defined as "[a]ny location including urban and residential areas within a nine- square-mile area around an [sic] Mediterranean fruit fly detection. "

10. Quarantine areas are generally 81 square miles; treatment areas are 9 square miles and may be wholly outside of a quarantine area.

11. In the words of FDACS Director of the Division of Plant Industry, Richard Gaskalla,

    "[t]his was a very active infestation. For the first 90 days of the program, it was a very fluid and dynamic situation. Each day brought a new challenge, a new area to place traps in or regulate fruit in. So it was giving us quite a challenge."

    (transcript, 48-49)

    
    

12. As new medflies were discovered subsequent to the end of May 1997, FDACS expanded the treatment and quarantine areas. Additional emergency rules on the infestation were filed: 5BER 97-3, on June 20, 1997; 5BER 97-4, on July 3, 1997; 5BER 97-6, on July 28, 1997; and 5BER 97-7, on August 11, 1997.

13. With the exception of the specifically described quarantine area in section (4), each emergency rule is substantially the same. 5BER 97-3 repeats the quarantine area described in 5BER 97-2 and adds a specific portion of Polk County. 5BER 97-4 repeats the quarantine area described in 5BER 97-3 and adds a specific portion of Manatee County. 5BER 97-6 and 5BER 97-7 include a much larger quarantine area to include portions of Hillsborough, Polk, Manatee, Orange, and Sarasota Counties. There are portions of Hillsborough County which are found in the quarantine area described in all five emergency rules. Other geographical areas overlap in two or more of the five rules.

14. The "treatment area" remains described in each of the five emergency rules as the nine-square-mile area around a medfly detection. As more medflies were found, this area obviously expanded. Eventually the treatment area became almost as large as the quarantine area in Hillsborough County.

15. FDACS developed its series of emergency rules to address the medfly eradication program as it evolved. The agency

    consulted a science advisory panel that was put together to review the eradication program, and the agency received public comment and suggestions from public meetings. As new detections were made, the emergency rules were promulgated to cover the areas which the agency considered important for its regulation and control (quarantine). Richard Gaskalla did not consider each new emergency rule to be a renewal but rather a response to the unpredictable expansion of the medfly within existing areas.

16. As soon as FDACS adopted the first emergency rule, it began work on a permanent rule and scheduled a rule development workshop in June to receive public comment. Citizens in Hillsborough County requested another workshop which was held approximately two weeks prior to the hearing in this case. A permanent rule has not been adopted, but the pre-adoption process continued as of the hearing in this case.

17. As of the time of hearing, the last medfly detected in Hillsborough County was mid-July. Medflies were discovered after this in other counties covered by the emergency rules. Eradication is generally not considered complete until traps have been empty for two life cycles after the last treatment. Depending on the length of the life cycle, eradication could be complete from 60 to 100 days after the last fly find.

    CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.56, Florida Statutes.

19. Section 120.56(1)(a), Florida Statutes, provides that persons substantially affected by a rule or proposed rule may seek an administrative determination of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. The parties have stipulated to Petitioner's standing in this proceeding as a "substantially affected" person.

20. Petitioner alleges that each of the emergency rules, 5BER 97-3, 5BER 97-4, 5BER 97-6, and 5BER 97-7, is invalid under Section 120.54(4), Florida Statutes, as an attempt to perpetuate and renew the terms of emergency rule 5BER 97-2 for more than 90 days. (Amended Petition, paragraphs 13-16.) Respondent claims that the emergency rules adopted in 1997 to address a rampant outbreak of the medfly were not "renewals," but rather addressed new emergencies arising in a rapidly changing and piecemeal or unpredictable fashion.

21. Section 120.54(4), Florida Statutes (Supp. 1996), provides, in pertinent part:

    (4) EMERGENCY RULES.–

    1. If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger. The agency may adopt any procedure which is fair under the circumstances if:

       1. The procedure provides at least the procedural protection given by other

          statutes, the State Constitution, or the United States Constitution.

       2. The agency takes only that action necessary to protect the public interest under the emergency procedure.

       3. The agency publishes in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. In any event, notice of emergency rules, other than those of educational units or units of government with jurisdiction in only one or a part of one county, including the full text of the rules, shall be published in the first available issue of the Florida Administrative Weekly and provided to the committee. The agency's findings of immediate danger, necessity, and procedural fairness shall be judicially reviewable.

    2. Rules pertaining to the public health,

       safety, or welfare shall include rules pertaining to perishable agricultural commodities.

    3. An emergency rule adopted under this subsection shall not be effective for a period longer than 90 days and shall not be renewable, except during the pendency of a challenge to proposed rules addressing the subject of the emergency rule. However, the agency may take identical action by the rulemaking procedures specified in this chapter. (emphasis added)

22. An "invalid exercise of delegated legislative authority", as defined in Section 120.52(8)(a), Florida Statutes (Supp. 1996), includes a proposed or existing rule for which the agency has " . . . materially failed to follow the applicable rulemaking procedures or requirements set forth in [Chapter 120]."

23. Petitioner is not contesting that a valid emergency existed throughout the months following the first detection of the medfly in May 1997. Nor is Petitioner disputing the broad authority of the FDACS to address that emergency, which authority is cited in the notices of the emergency rules at issue:

    570.07 Department of Agriculture and Consumer Services; functions, powers, and duties.–

    The department shall have and exercise the following functions, powers, and duties:

    . . .

    (21) To declare an emergency when one exists in any matter pertaining to agriculture; to make, adopt, and promulgate rules and issue orders which will be effective during the term of the emergency; and to issue or require to be issued food safety information, pertaining to the emergency, that is based on reliable scientific facts and reliable scientific data.

    . . .

    581.031 Department; powers and duties.–

    The department has the following powers and duties:

    . . .

    (7) To declare a quarantine against all or part of any area, place, nursery, grove, orchard, county, or counties within this state, or against all or part of other states, territories, or foreign countries, because of plant pests or noxious weeds or genetically engineered plant or plant pests, or arthropods, which are determined after due investigation to pose a potential threat to the agricultural, horticultural, or public interest of this state, and to prohibit their movement into or within this state. The quarantine may be made absolute or rules may be adopted prescribing the method and manner under which the prohibited articles may be moved into or within, sold, or otherwise disposed of in this state.

    . . .

24. Petitioner finds fault only in the manner in which FDACS has adopted serial emergency rules to continue the provisions of an emergency rule in effect beyond a 90-day limit. Other agencies have attempted this; not one, according to the reported cases, has succeeded.

25. In Times Publishing Company vs. Florida Department of Corrections, 375 So. 2d 307 (Fla. 1st DCA 1979), the court prohibited the Department of Corrections from adopting serial emergency rules to restrict access to death row prisoners whose execution warrants were outstanding.

    "While the Department retains emergency rulemaking power in respect to the subject of Rule 33ER79-2, the Department cannot be permitted to extend the effective life of an emergency rule, predicated on a certain emergency, by tacking the life of one invalid emergency rule to the life of another." Id. at 310-311.

    Still, the court left open the potential for a different result under different circumstances:

    "We do not prohibit further emergency rulemaking based on new and substantially different emergency conditions." Id. at 311.

    
    

26. Respondent suggests that this latter dicta could be applied to the circumstances here where new medfly discoveries made it necessary to expand or amend the quarantine zones described in each successive rule.

27. Those new discoveries did not, however, create a "new and substantially different" emergency condition. The proclamation of Commissioner Crawford issued on May 30, 1997,

    recognized a state-wide emergency and immediate danger to the public health, safety or welfare on account of the infestations. The first emergency rule, 5BER 97-2, described the treatment area in general terms related to the nine-square-mile area surrounding a detection site. This, and all but the more specific descriptions of the quarantine areas, remained intact from the adoption of that first rule on May 30, 1997, past the 90-day expiration period, and continuing on to the date of hearing and beyond.

28. While not regular or frequent occurrences, medfly infestations are still recurring phenomena. According to the notice of emergency rule 5BER 97-2, they have occurred in Florida in 1929, 1956, 1962, 1963, 1981, 1984, 1985, 1987, 1990, and 1997. Where an emergency continues unabated or recurs predictably, the plain intent of the legislature is that the agency pursue rulemaking through general Section 120.54 procedures, which procedures offer opportunity for public scrutiny and contribution. Only when those proposed rules are challenged may the agency renew its emergency rule, as provided in Section 120.54(4)(c), Florida Statutes.

29. The authority of Times Publishing Company, supra and the Division of Administrative Hearings' consistent application of the Section 120.54(4)(c), Florida Statutes, deadline 1/ compel a conclusion that the FDACS materially failed to follow the applicable rulemaking procedures or requirements of Chapter 120

therefore, for appropriate further proceedings on this limited issue.

ORDER

Based on the foregoing, it is hereby ORDERED:

Rules 5BER 97-3, 5BER 97-4, 5BER 97-6, and 5BER 97-7 are

invalid exercises of delegated legislative authority. Jurisdiction remains in the Division of Administrative Hearings to determine entitlement to reasonable costs and attorney's fees pursuant to Section 120.595(3), Florida Statutes (Supp. 1996.)

DONE AND ENTERED this 19th day of September, 1997, in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1997.

ENDNOTES

1/ See, Humane Society of the United States, et al. v. Department of Business Regulation, Division of Para-Mutuel Wagering, Case No. 90-7199RE (DOAH 1991); Darryl James McGlamry v. Department of Corrections, Case No. 91-2804RE (DOAH 1991); Prudential Property and Casualty Co. of Indiana v. Department of Insurance, Case No. 93-5807RE (DOAH 1993).

COPIES FURNISHED:

Rick Martinez

Post Office Box 262643 Tampa, Florida 33685-2643

T. Elaine Holmes, Esquire Stewart Joyner Jordan-Holmes

Holmes, P.A.

Post Office Box 172297 Tampa, Florida 33672-0297

Floyd Hennen, Esquire Department of Agriculture

and Consumer Services

515 Mayo Building

407 South Calhoun Street Tallahassee, Florida 32399-0800

Richard Tritschler, General Counsel Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

David Greenbaum

Legislative Research Director Committee on Governmental Rules

and Regulations

281 House Office Building Tallahassee, Florida 32399-1330

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 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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICK MARTINEZ, )

)

Petitioner, )

)

vs. ) Case No. 97-3863RE

)

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Respondent. )

)

CORRECTED FINAL ORDER

(SUPPLIES MISSING PORTIONS OF PARAGRAPHS 29 AND 30)

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing by videoconference in the above-styled case on September 5, 1997. Petitioner, his counsel, and the court reporter participated from the Park Trammell Building conference center in Tampa, Florida. The Administrative Law Judge presided from the Division of Administrative Hearings conference center in Tallahassee, Florida, where Respondent's counsel and witnesses were located.

APPEARANCES

For Petitioner: T. Elaine Holmes, Esquire

Stewart Joyner Jordan-Holmes Holmes, P.A.

Post Office Box 172297 Tampa, Florida 33672-0297

For Respondent: Floyd Hennen, Esquire

Department of Agriculture and Consumer Services

515 Mayo Building

407 South Calhoun Street Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUES

Petitioner has challenged a series of emergency rules promulgated by the Respondent to address the discovery of Mediterranean fruit flies (medflies) in parts of central Florida. Specifically, Petitioner contends that 5BER 97-3, 5BER 97-4, 5BER 97-6, and 5BER 97-7 are invalid to the extent that they make any geographical area subject to emergency rule for more than 90 days. The issue for determination, therefore, is whether the emergency rules are invalid as claimed.

PRELIMINARY STATEMENT

On August 22, 1997, Petitioner Rick Martinez filed his petition for administrative determination of invalidity of an emergency rule. The case was assigned and was promptly set for hearing.

On September 2, 1997, Petitioner filed a motion for leave to amend his petition. The amended petition added more recently promulgated emergency rules and added further grounds for the challenge.

In a telephone hearing conducted on September 3, 1997, Petitioner agreed to drop the additional grounds for challenge. Without objection, the motion to amend was granted to permit challenge to the additional emergency rules. Also in this motion hearing, counsel for Respondent stipulated to the standing of

Petitioner, thereby obviating the necessity of evidence to establish that standing.

At the evidentiary hearing, Petitioner testified on his own behalf and presented testimony of Richard Gaskalla, Director of the Division of Plant Industry, Department of Agriculture and Consumer Services. Without objection, Petitioner's Exhibit no. 1 (a May 30, 1997, Proclamation by Commissioner of Agriculture Bob Crawford), Exhibit no. 2 (five emergency rules), and Exhibit

no. 3 (a map) were received in evidence.

Respondent also presented Richard Gaskalla's testimony.

Respondent's Exhibits 1a through 1f (a series of maps) and Exhibit no. 2 (Medfly Cooperative Eradication Program Final Environmental Impact Statement) were received in evidence.

The transcript of proceedings and the parties' proposed orders were filed on September 12, 1997. This order is being entered to comply with the expedited deadlines for emergency rule challenges in Section 120.56(5), Florida Statutes.

FINDINGS OF FACT

1. Petitioner Rick Martinez resides and operates an organic farming business in Tampa, Hillsborough County, Florida. As stipulated, Mr. Martinez is substantially affected by the emergency rules at issue.

2. The Mediterranean fruit fly (medfly) is considered one of the world's most serious pests affecting fruits and vegetables. It has a host range of over 260 different fruits and

   vegetables, 80 of which are grown in the state of Florida. It is an exotic pest of grave concern to commercial agricultural interests as well as to home gardeners.

3. In the adult stage, the female medfly deposits or lays eggs in ripe fruit. The eggs develop into larva or maggots that feed on pulp of the interior portion of fruit, causing damage and secondary pathogens to enter the fruit and causing the fruit to rot and fall from the tree. The medfly reproduces very rapidly. It can complete a life-cycle in as little as 18 days under optimum conditions; in Florida and in recent months, it completed its life-cycle in approximately 23-25 days. As a winged insect the medfly can move several miles from its point of introduction in search of a host to deposit eggs or in search of a food source. Over a lifetime, the female can lay hundreds or thousands of eggs.

4. The medfly enters an area via the traveling public or on commercial fruits and vegetables. Host plants or fruits can include plants or fruits that are not grown in Florida. The Florida Department of Agriculture and Consumer Services (FDACS) maintains a detection program, including 13,000 traps to detect the presence of the medfly. Under certain circumstances for every medfly detected, there can be hundreds of others in the area.

5. Because of the biology of the medfly, mere control is difficult to achieve. Eradication, or complete elimination of

   the pest from a particular area, is the goal when the medfly is detected. To further this goal, Florida cooperates with the U.S. Department of Agriculture and other states.

6. On or about May 28 or 29, 1997, a medfly was discovered in the Seminole Heights area of Hillsborough County. Very quickly other medflies were discovered in Hillsborough County, with the epicenter determined to be in the Brandon area. Soon other detections occurred in Manatee, Sarasota, Orange, and Polk Counties. This was determined to be the most severe infestation of medflies in Florida in several decades.

7. On May 30, 1997, Commissioner of Agriculture, Bob Crawford, issued a proclamation announcing an immediate danger to the public health, safety, or welfare in the state of Florida on account of the infestation by the Mediterranean fruit fly. The proclamation cited authority and powers conferred by Article IV, Section 4, Florida Constitution and Sections 120.54(4) and 570.07(21), Florida Statutes. The proclamation called for immediate eradication procedures including aerial and ground pesticide applications in infested areas.

8. FDACS also promulgated and filed an emergency rule, 5BER 97-2, Florida Administrative Code, "Mediterranean Fruit Fly Rule and Quarantine." The rule provided definitions, designated a quarantine area and treatment area, identified regulated articles and host plants, and provided for entry of authorized representatives to inspect, confiscate suspect fruit, or apply

   treatment on property on which the medfly is known or suspected to exist. The rule also declared the medfly a pest and nuisance pursuant to Section 581.031(6), Florida Statutes, and described the rule's purpose:

   . . . to provide detailed direction for conducting a regulatory and eradication program to prevent spread of the Mediterranean fruit fly, Ceratitis capitata, within the State. This rule is promulgated to provide a quarantine on areas regulated due to the presence of the Mediterranean fruit fly, and to specify conditions under which regulated articles may be certified as free of Mediterranean fruit fly when moved from the quarantined area. This rule also provides for the treatment and eradication of the Mediterranean fruit fly within the State of Florida.

   (5BER 97-2(2), Florida Administrative Code)

   
   

9. The quarantine area within 5BER 97-2 is an area of Hillsborough County described with specificity with references to road boundaries. The treatment area was defined as "[a]ny location including urban and residential areas within a nine- square-mile area around an [sic] Mediterranean fruit fly detection. "

10. Quarantine areas are generally 81 square miles; treatment areas are 9 square miles and may be wholly outside of a quarantine area.

11. In the words of FDACS Director of the Division of Plant Industry, Richard Gaskalla,

    "[t]his was a very active infestation. For the first 90 days of the program, it was a very fluid and dynamic situation. Each day brought a new challenge, a new area to place

    traps in or regulate fruit in. So it was giving us quite a challenge."

    (transcript, 48-49)

    
    

12. As new medflies were discovered subsequent to the end of May 1997, FDACS expanded the treatment and quarantine areas. Additional emergency rules on the infestation were filed: 5BER 97-3, on June 20, 1997; 5BER 97-4, on July 3, 1997; 5BER 97-6, on July 28, 1997; and 5BER 97-7, on August 11, 1997.

13. With the exception of the specifically described quarantine area in section (4), each emergency rule is substantially the same. 5BER 97-3 repeats the quarantine area described in 5BER 97-2 and adds a specific portion of Polk County. 5BER 97-4 repeats the quarantine area described in 5BER 97-3 and adds a specific portion of Manatee County. 5BER 97-6 and 5BER 97-7 include a much larger quarantine area to include portions of Hillsborough, Polk, Manatee, Orange, and Sarasota Counties. There are portions of Hillsborough County which are found in the quarantine area described in all five emergency rules. Other geographical areas overlap in two or more of the five rules.

14. The "treatment area" remains described in each of the five emergency rules as the nine-square-mile area around a medfly detection. As more medflies were found, this area obviously expanded. Eventually the treatment area became almost as large as the quarantine area in Hillsborough County.

15. FDACS developed its series of emergency rules to address the medfly eradication program as it evolved. The agency consulted a science advisory panel that was put together to review the eradication program, and the agency received public comment and suggestions from public meetings. As new detections were made, the emergency rules were promulgated to cover the areas which the agency considered important for its regulation and control (quarantine). Richard Gaskalla did not consider each new emergency rule to be a renewal but rather a response to the unpredictable expansion of the medfly within existing areas.

16. As soon as FDACS adopted the first emergency rule, it began work on a permanent rule and scheduled a rule development workshop in June to receive public comment. Citizens in Hillsborough County requested another workshop which was held approximately two weeks prior to the hearing in this case. A permanent rule has not been adopted, but the pre-adoption process continued as of the hearing in this case.

17. As of the time of hearing, the last medfly detected in Hillsborough County was mid-July. Medflies were discovered after this in other counties covered by the emergency rules. Eradication is generally not considered complete until traps have been empty for two life cycles after the last treatment. Depending on the length of the life cycle, eradication could be complete from 60 to 100 days after the last fly find.

    CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.56, Florida Statutes.

19. Section 120.56(1)(a), Florida Statutes, provides that persons substantially affected by a rule or proposed rule may seek an administrative determination of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. The parties have stipulated to Petitioner's standing in this proceeding as a "substantially affected" person.

20. Petitioner alleges that each of the emergency rules, 5BER 97-3, 5BER 97-4, 5BER 97-6, and 5BER 97-7, is invalid under Section 120.54(4), Florida Statutes, as an attempt to perpetuate and renew the terms of emergency rule 5BER 97-2 for more than 90 days. (Amended Petition, paragraphs 13-16.) Respondent claims that the emergency rules adopted in 1997 to address a rampant outbreak of the medfly were not "renewals," but rather addressed new emergencies arising in a rapidly changing and piecemeal or unpredictable fashion.

21. Section 120.54(4), Florida Statutes (Supp. 1996), provides, in pertinent part:

    (4) EMERGENCY RULES.–

    1. If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger. The agency may adopt any procedure which is fair under the circumstances if:

       1. The procedure provides at least the procedural protection given by other

          statutes, the State Constitution, or the United States Constitution.

       2. The agency takes only that action necessary to protect the public interest under the emergency procedure.

       3. The agency publishes in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. In any event, notice of emergency rules, other than those of educational units or units of government with jurisdiction in only one or a part of one county, including the full text of the rules, shall be published in the first available issue of the Florida Administrative Weekly and provided to the committee. The agency's findings of immediate danger, necessity, and procedural fairness shall be judicially reviewable.

    2. Rules pertaining to the public health,

       safety, or welfare shall include rules pertaining to perishable agricultural commodities.

    3. An emergency rule adopted under this subsection shall not be effective for a period longer than 90 days and shall not be renewable, except during the pendency of a challenge to proposed rules addressing the subject of the emergency rule. However, the agency may take identical action by the rulemaking procedures specified in this chapter. (emphasis added)

22. An "invalid exercise of delegated legislative authority", as defined in Section 120.52(8)(a), Florida Statutes (Supp. 1996), includes a proposed or existing rule for which the agency has " . . . materially failed to follow the applicable rulemaking procedures or requirements set forth in [Chapter 120]."

23. Petitioner is not contesting that a valid emergency existed throughout the months following the first detection of the medfly in May 1997. Nor is Petitioner disputing the broad authority of the FDACS to address that emergency, which authority is cited in the notices of the emergency rules at issue:

    570.07 Department of Agriculture and Consumer Services; functions, powers, and duties.–

    The department shall have and exercise the following functions, powers, and duties:

    . . .

    (21) To declare an emergency when one exists in any matter pertaining to agriculture; to make, adopt, and promulgate rules and issue orders which will be effective during the term of the emergency; and to issue or require to be issued food safety information, pertaining to the emergency, that is based on reliable scientific facts and reliable scientific data.

    . . .

    581.031 Department; powers and duties.–

    The department has the following powers and duties:

    . . .

    (7) To declare a quarantine against all or part of any area, place, nursery, grove, orchard, county, or counties within this state, or against all or part of other states, territories, or foreign countries, because of plant pests or noxious weeds or genetically engineered plant or plant pests, or arthropods, which are determined after due investigation to pose a potential threat to the agricultural, horticultural, or public interest of this state, and to prohibit their movement into or within this state. The quarantine may be made absolute or rules may be adopted prescribing the method and manner under which the prohibited articles may be moved into or within, sold, or otherwise disposed of in this state.

    . . .

24. Petitioner finds fault only in the manner in which FDACS has adopted serial emergency rules to continue the provisions of an emergency rule in effect beyond a 90-day limit. Other agencies have attempted this; not one, according to the reported cases, has succeeded.

25. In Times Publishing Company vs. Florida Department of Corrections, 375 So. 2d 307 (Fla. 1st DCA 1979), the court prohibited the Department of Corrections from adopting serial emergency rules to restrict access to death row prisoners whose execution warrants were outstanding.

    "While the Department retains emergency rulemaking power in respect to the subject of Rule 33ER79-2, the Department cannot be permitted to extend the effective life of an emergency rule, predicated on a certain emergency, by tacking the life of one invalid emergency rule to the life of another." Id. at 310-311.

    Still, the court left open the potential for a different result under different circumstances:

    "We do not prohibit further emergency rulemaking based on new and substantially different emergency conditions." Id. at 311.

    
    

26. Respondent suggests that this latter dicta could be applied to the circumstances here where new medfly discoveries made it necessary to expand or amend the quarantine zones described in each successive rule.

27. Those new discoveries did not, however, create a "new and substantially different" emergency condition. The proclamation of Commissioner Crawford issued on May 30, 1997,

    recognized a state-wide emergency and immediate danger to the public health, safety or welfare on account of the infestations. The first emergency rule, 5BER 97-2, described the treatment area in general terms related to the nine-square-mile area surrounding a detection site. This, and all but the more specific descriptions of the quarantine areas, remained intact from the adoption of that first rule on May 30, 1997, past the 90-day expiration period, and continuing on to the date of hearing and beyond.

28. While not regular or frequent occurrences, medfly infestations are still recurring phenomena. According to the notice of emergency rule 5BER 97-2, they have occurred in Florida in 1929, 1956, 1962, 1963, 1981, 1984, 1985, 1987, 1990, and 1997. Where an emergency continues unabated or recurs predictably, the plain intent of the legislature is that the agency pursue rulemaking through general Section 120.54 procedures, which procedures offer opportunity for public scrutiny and contribution. Only when those proposed rules are challenged may the agency renew its emergency rule, as provided in Section 120.54(4)(c), Florida Statutes.

29. The authority of Times Publishing Company, supra and the Division of Administrative Hearings' consistent application of the Section 120.54(4)(c), Florida Statutes, deadline 1/ compel a conclusion that the FDACS materially failed to follow the applicable rulemaking procedures or requirements of Chapter

    120 in re-adopting 5BER 97-2 in its serial emergency rules 5BER 97-3, 5BER 97-4, 5BER 97-6, and 5BER 97-7.

30. Petitioner has requested an award of attorney's fees. Fees and costs are authorized for proceedings such as this in Section 120.595(3), Florida Statutes. However, the agency has the opportunity to demonstrate that "its actions were substantially justified or special circumstances exist which would make the award unjust." Jurisdiction is retained, therefore, for appropriate further proceedings on this limited issue.

ORDER

Based on the foregoing, it is hereby ORDERED:

Rules 5BER 97-3, 5BER 97-4, 5BER 97-6, and 5BER 97-7 are

invalid exercises of delegated legislative authority. Jurisdiction remains in the Division of Administrative Hearings to determine entitlement to reasonable costs and attorney's fees pursuant to Section 120.595(3), Florida Statutes (Supp. 1996.)

DONE AND ENTERED this 19th day of September, 1997, in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1997.

ENDNOTES

1/ See, Humane Society of the United States, et al. v. Department of Business Regulation, Division of Para-Mutuel Wagering, Case No. 90-7199RE (DOAH 1991); Darryl James McGlamry v. Department of Corrections, Case No. 91-2804RE (DOAH 1991); Prudential Property and Casualty Co. of Indiana v. Department of Insurance, Case No. 93-5807RE (DOAH 1993).

COPIES FURNISHED:

Rick Martinez

Post Office Box 262643 Tampa, Florida 33685-2643

T. Elaine Holmes, Esquire Stewart Joyner Jordan-Holmes

Holmes, P.A.

Post Office Box 172297 Tampa, Florida 33672-0297

Floyd Hennen, Esquire Department of Agriculture

and Consumer Services

515 Mayo Building

407 South Calhoun Street Tallahassee, Florida 32399-0800

Richard Tritschler, General Counsel Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

David Greenbaum

Legislative Research Director Committee on Governmental Rules

and Regulations

281 House Office Building Tallahassee, Florida 32399-1330

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 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: 97-003863RE

Orders for Case No: 97-003863RE