FLORIDA OUTDOOR ADVERTISING ) ASSOCIATION, INC.; CLEAR ) CHANNEL OUTDOOR, INC.; KOALA ) OUTDOOR; THE LAMAR COMPANY, ) L.L.C.; AND VIACOM OUTDOOR, ) INC., d/b/a NATIONAL )
vs. )
Respondent. )
Case No. 03-3682RP
Pursuant to notice, a formal hearing was held in this case on November 21, 2003, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Barbara J. Staros.
For Petitioners: Gerald S. Livingston, Esquire
Livingston & Riley, P.A. Post Office Box 2151 Orlando, Florida 32802
For Respondent: Robert M. Burdick, Esquire
Whether proposed Rule 14-10.0052 is an invalid exercise of delegated legislative authority pursuant to Section 120.52(8), Florida Statutes,1/ for the reasons described by Petitioners in their Petition.
Petitioners, Florida Outdoor Advertising Association, Inc.; Clear Channel Outdoor, Inc.; Koala Outdoor; The Lamar Company, L.L.C.; and Viacom Outdoor, Inc., d/b/a National Advertising Company filed a Petition challenging proposed Rule 14-10.0052 with the Division of Administrative Hearings on October 9, 2003, and it was assigned to the undersigned on October 13, 2003.
A Notice of Hearing was issued on October 16, 2003, scheduling a formal hearing for November 12, 2003. On
October 21, 2003, Petitioners filed a Motion for Leave to File Amended Petition. The motion was granted and the case proceeded on Petitioners' Amended Petition. Also on October 21, 2003, Petitioners filed an unopposed Motion for Continuance of Final Administrative Hearing. The motion was granted and the hearing was rescheduled for November 21, 2003. The parties filed a Joint Pre-Hearing Stipulation on November 19, 2003.
G. Pelham, Joseph Howard Little, Richard V. Geeslin, and Katherine Oertel. Petitioners' Exhibits numbered 1 and 2 were admitted into evidence.
Respondent presented the testimony of John Garner.
Respondent's Exhibits numbered 1 through 7 were admitted into evidence. The parties offered Joint Exhibit 1 which was admitted into evidence. Official recognition was taken of 23 U.S.C. s. 131, 23 C.F.R. Subpart G, §§ 750.701-750.713,
Chapter 479, Florida Statutes, an agreement dated January 27, 1972, between the United States Department of Transportation and the State of Florida, and Rule 9J-5.003, Florida Administrative Code.
A Transcript consisting of one volume was filed on December 15, 2003. On December 30, 2003, Petitioners filed an Unopposed Motion for Extension of Time to file Petitioners' Proposed Final Order. The motion was granted and the parties timely filed Proposed Final Orders which have been considered in the preparation of this Final Order.
The proposed rule was the subject matter of a rule development workshop on May 20, 2002, at 10:00 a.m. at the
Haydon Burns Building, 605 Suwannee Street, Tallahassee, Florida.
The proposed rule was the subject matter of a public hearing on December 18, 2002, at the same location.
The proposed rule was the subject matter of another public hearing held on April 3, 2003, at the same location.
The proposed rule was the subject matter of a publication under Section III of the Florida Administrative Weekly on September 19, 2003, wherein the rule was published in its final proposed form.
Petitioner Florida Outdoor Advertising Association is a trade association comprised of billboard companies operating within the State of Florida who (i) are engaged in the "business of outdoor advertising" as that term is defined in Chapter 479, Florida Statutes; (ii) are licensed as outdoor advertising companies pursuant to the provisions of Chapter 479, Florida Statutes; (iii) are directly regulated by the provisions of Chapter 14-10, Florida Administrative Code; and
(iv) are companies whose substantial interests will be affected by the proposed rule.
Petitioners Clear Channel Outdoor, Inc.; Koala Outdoor; The Lamar Company, L.L.C.; and Viacom Outdoor, Inc., d/b/a National Advertising Company are billboard companies who
(i) are engaged in the "business of outdoor advertising" as that term is defined in Chapter 479, Florida Statutes; (ii) are licensed pursuant to the provisions of Chapter 479, Florida Statutes; (iii) are directly regulated by Chapter 14- 10, Florida Administrative Code; and (iv) are parties whose substantial interests will be affected by the proposed rule.
The State of Florida, Department of Transportation (hereinafter "the Department"), is the state agency responsible for adopting the proposed rule.
Petitioners are all qualified to do business within the State of Florida, are Florida taxpayers, and have participated in the entire rule adoption process, as set forth above, either directly or by and through their authorized representatives, agents, or attorneys.
The Petition filed on behalf of Petitioners was timely filed pursuant to the provisions of Section 120.56(2)(a), Florida Statutes.
The text of the proposed rule as published in its final form in the Florida Administrative Weekly on September 19, 2003, is as follows:
14-10.0052 Comprehensively Enacted Zoning and Zoning Enacted Primarily to Permit Signs.
'Comprehensively Enacted Zoning' means ordinances or other laws adopted by the county or municipal government with authority over the development and use of a
parcel of land, pertaining to and designating the currently allowable uses on the parcel, pursuant to and consistent with a comprehensive plan enacted in accordance with Chapter 163, Florida Statutes. The term does not include actions taken primarily to permit signs as defined in section (3) of this rule.
For the purposes of this rule, 'parcel' shall mean all the contiguous lands under the same ownership and the same land use designation adopted pursuant to Chapter 163, Florida Statutes.
The Department shall consider the following criteria when determining whether commercial or industrial zoning applicable to a parcel of land was adopted primarily to permit the erection or maintenance of signs:
Whether the uses allowed by the applicable zoning ordinance or law include commercial or industrial uses in addition to signs. The following uses are not recognized as commercial or industrial use for the purpose of these criteria:
Agricultural, forestry, ranching, grazing, farming, or related activities, including wayside fresh produce stands.
Transient or temporary activities.
Railroad tracks and minor sidings.
Communication towers.
Electric transmission, telephone, telegraph, or other communications services lines.
Ditches, sewers, water, heat, or gas lines.
Pipelines, tanks, or pumps.
Fences.
Drainage ponds or water retention facilities.
Canals.
Roads.
Signs.
Whether the size of the parcel would be sufficient to conduct the commercial or industrial uses allowed on the parcel under the applicable county or municipal government building and development code requirements for commercial or industrial activities, including setback requirements, parcel size and dimension requirements, and parking requirements.
Whether the parcel is located contiguous to other properties zoned or used for commercial or industrial activities.
Whether there is public access to the parcel sufficient to conduct the commercial or industrial uses allowed on the parcel.
Whether the public statements and materials published in connection with any zoning decision affecting the parcel, including all public records pertaining to the zoning decision, indicate the zoning decision was taken primarily to permit the erection or maintenance of signs.
Specific authority 334.044(2), 479.07(10) FS. History-New.
Facts Based Upon the Evidence of Record History of the Rule
The Department is the state agency responsible for administering state and federal law governing the placement of outdoor advertising signs along the highways of the state.
DOT is charged with enforcing Chapter 479, Florida Statutes, in concert with federal law and regulations, as well as an agreement between the State of Florida and the United States
Department of Transportation referenced more specifically below.
On January 27, 1972, the State of Florida and the United States Department of Transportation entered into an agreement (the agreement) for carrying out the federal law known as the Highway Beautification Act of 1965 (the Act).
The Act, which is codified at 23 U.S.C. section 131, requires states to achieve and exercise effective control of outdoor advertising in areas adjacent to the Interstate highways and the federal-aid primary highway systems. The predominant focus of the Act is that signs located within a certain distance of Interstate and federal-aid highways should be located in areas that are commercial or industrial in nature. Failure to maintain such effective control may result in an annual penalty of ten percent of the federal highway funds apportioned to the state.
There was a major rewrite of Florida law relating to outdoor advertising in 1984 in an effort to come under compliance with the agreement as well as with federal law and regulations.
As part of that legislative undertaking, the language of Subsection (10) of Section 479.07(10) was enacted. Section 7, Chapter 84-227, Laws of Florida. The language of that subsection, which is referenced in the publication of the
proposed rule as the law implemented, has not changed since its enactment in 1984. The last sentence of the subsection requires the Department to adopt rules within 180 days after the effective date of act, "which shall provide criteria to determine whether such zoning is comprehensively enacted or enacted primarily to permit signs."
In response to this Legislative mandate, the Department adopted Florida Administrative Code Rule 14-10.0051 in 1986. That rule was entitled, "Zoned and Unzoned Commercial and Industrial Areas along Interstate and Federal- Aid Primary Highways."
Florida Administrative Code Rule 14-10.0051 was the last effective rule on the subject matter of the proposed rule until its repeal in approximately 2000. The Department describes the repeal of the rule as "inadvertent."
John Garner is the manager of production and program operations for the Office of Right-of-Way for the Department. His duties include policy-level involvement regarding outdoor advertising. According to Mr. Garner, the Department chose not to simply re-adopt its previous rule on the subject because it believed the old language was somewhat vague and should be more specific. The Department began working on the proposed rule which is the subject matter of this dispute in late 2000 or in 2001. Mr. Garner attended numerous meetings
wherein the text of the rule was discussed and participated at one of public hearings on the proposed rule.
Through the rule development process, the initial proposed language was significantly modified to address comments and concerns raised by Petitioners and others. During the process of developing the proposed rule, the Department considered a number of matters, including the comments received during the rule workshops, guidance and comment it has received over time from the Federal Highway Administration concerning federal regulations, information received from the Department of Community Affairs, and an examination of approaches taken by other states in addressing similar matters.
Other statutory considerations Chapter 163
A year after the enactment of Section 479.07(10), the 1985 Florida Legislature enacted the Local Government Comprehensive Planning and Land Development Regulation Act. This legislation substantially revised and expanded Part II of Chapter 163, Florida Statutes (1985), regarding growth management.
That legislation mandated a comprehensive planning process requiring each local government in the state to plan comprehensively for growth and development. Each local
government is required to prepare a comprehensive plan which will govern land use in the jurisdiction. A part of that comprehensive plan is a future land use map which designates all property within a jurisdiction for a use consistent with future land use categories that are provided for in the comprehensive plan, e.g., commercial or residential. The future land use map must be consistent with the other parts of the comprehensive plan.
After a comprehensive plan has been adopted for a jurisdiction, the local government must implement that plan through the adoption of land development regulations, including zoning. Any such regulations must be consistent with the comprehensive land use plan so that there is a comprehensive system of planning, regulation, and zoning.
It is common practice in this state to include within the implementing regulations a comprehensive zoning ordinance which is then applied to all of the property within the jurisdiction resulting in a zoning map showing zoning districts. A zoning ordinance would list currently permissible uses in the zoning districts.
Comprehensive plans are subject to amendment not more than twice a year. Zoning regulations may also be modified or amended by local governments, but must remain consistent with the comprehensive plan.
There are a few jurisdictions in Florida which have land development regulations but do not have zoning ordinances in place.
The Department deems land use control actions taken pursuant to Chapter 163, Florida Statutes, to be zoning that is comprehensively enacted for the purposes of Chapter 479, Florida Statutes.
Sign Permits
Section 479.07, Florida Statutes, generally requires the issuance of a sign permit by the Department before the erection of signs along state highways, the federal aid primary system, and the Interstate highway system. This section also authorizes the Department to prescribe an application form for such permits.
The application form for an outdoor advertising permit contains information about what is proposed to be constructed and where an applicant proposes that it be constructed.
The application also contains a section that reads, "To be completed by appropriate zoning official." This section contains information on the future land use designation and current zoning of the proposed location under the local government's comprehensive plan and land development
regulations. The form also contains a section entitled, "Local Governmental Permission" in which a local government official indicates whether or not the outdoor advertising sign identified in the application is or is not in compliance with all duly adopted local ordinances.
Once the local government zoning official certifies that the proposed sign identified in the application is in compliance with the comprehensive plan adopted pursuant to Chapter 163, the Department does not go behind that certification to look factually at whether the zoning action was consistent with the comprehensive plan.
The Department uses the application and the information contained therein to determine whether a proposed sign location falls within the definition of a "commercial or industrial zone." If it does, then the Department determines whether those designations were adopted as part of the local government's comprehensive planning effort or were primarily adopted to permit outdoor advertising signs on that location. The Department examines the intent surrounding a particular zoning decision on a case-by-case basis.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this
proceeding pursuant to Section 120.56(1) and (2), Florida Statutes.
Petitioners have standing to challenge the proposed rule which is the subject of this dispute.
The Department is the state agency responsible for administering state and federal law governing the placement of outdoor advertising signs along the highways of the state.
Ch. 479, Fla. Stat. Rule Challenge Analysis
In a challenge to a proposed rule, the party attacking the proposed rule has the burden of going forward. The agency then has the burden to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised. The proposed rule is not presumed to be valid or invalid. § 120.56(2)(a) and (c), Fla. Stat.
The Amended Petition challenging proposed Rule 14- 10.0052 alleges that the proposed rule constitutes an invalid exercise of delegated authority. Petitioners assert that the proposed rule violates subsections (b), (c), (d), and (e) of Section 120.52(8) in that it exceeds the Department's rulemaking authority; enlarges, modifies, or contravenes the specific provisions of law implemented; is vague, fails to
establish adequate standards for agency decisions, or vests unbridled discretion in the agency; and is arbitrary.2/
Section 120.52(8), Florida Statutes, reads in pertinent part as follows:
(8) 'Invalid exercise of delegated legislative authority' means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:
* * *
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;
The rule is arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is
capricious if it is adopted without thought or reason or is irrational . . . .
Section 120.52(8)(b) and (c)
"The authority to adopt an administrative rule must be based on an explicit power or duty identified in the enabling statute . . . [T]he authority for an administrative rule is not a matter of degree. The question is whether the statute contains a specific grant of legislative authority for
the rule, not whether the grant of authority is specific enough." (Emphasis in original) Florida Board of Medicine v. Fla. Academy of Cosmetic Surgery, 808 So. 2d 243, 253, quoting Southwest Florida Water Management District v. Save the Manatee Club, Inc., 773 So. 2d 594, 599 (Fla. 1st DCA 2000).
In this instance, the Department's grant of rulemaking authority is found in Section 479.07(10), Florida Statutes, which reads as follows:
479.07 Sign permits.--
(10) Commercially or industrial zoning which is not comprehensively enacted or which is enacted primarily to permit signs shall not be recognized as commercial or industrial zoning for purposes of this provision, and permits shall be issued for signs in such areas. The department shall adopt rules within 180 days after this act takes effect which shall provide criteria to determine whether such zoning is comprehensively enacted or enacted primarily to permit signs.
Petitioners argue that the 180-day reference in Section 479.07(10) must be strictly construed and that the Department is not legislatively mandated, obligated, or authorized to enact an administrative rule in 2003 that "should have been enacted in 1984."
Petitioners' argument in that regard is rejected.
Section 479.07(10), Florida Statutes, gives the Department clear rulemaking authority regarding the establishment of criteria to determine whether commercial or industrial zoning
is comprehensively enacted or enacted primarily to permit signs. Moreover, the legislature has made it abundantly clear that rulemaking is not a matter of agency discretion and must be done as soon as feasible and practicable. § 120.54(1)(a), Fla. Stat. Petitioners cannot successfully argue that the Department's obligation and authority to adopt criteria expired 180 days after the effective date of the law.
Petitioners further argue that Section 479.07(10) was "pre-empted and rendered moot by the subsequently enacted amendment to section 479.01(3), Florida Statutes (1999)," which defines commercial or industrial zone.3/ Section 479.01, Florida Statutes, reads in pertinent part as follows:
(3) 'Commercial or industrial zone' means a parcel of land designated for commercial or industrial use under both the future land use map of the comprehensive plan and the land use development regulations adopted pursuant to chapter 163. If a parcel is located in an area designated for multiple uses on the future land use map of a comprehensive plan and the land development regulations do not clearly designate that parcel for a specific use, the area will be considered an unzoned commercial or industrial area if it meets the criteria of subsection (23).
* * *
(23) 'Unzoned commercial or industrial area' means a parcel of land designated by the future land use map of the comprehensive plan for multiple uses that include commercial or industrial uses but are not specifically designated for commercial or industrial uses under the
land development regulations, in which three or more separate and distinct conforming industrial or commercial activities are located.
These activities must satisfy the following criteria:
At least one of the commercial or industrial activities must be located on the same side of the highway and within 800 feet of the sign location;
The commercial or industrial activities must be within 660 feet from the nearest edge of the right-of-way; and
The commercial [sic] industrial activities must be within 1,600 feet of each other.
Distances specified in this paragraph must be measured from the nearest outer edge of the primary building or primary building complex when the individual units of the complex are connected by covered walkways.
Certain activities, including, but not limited to, the following, may not be so recognized as commercial or industrial activities:
Signs.
Agricultural, forestry, ranching, grazing, farming, and related activities, including, but not limited to, wayside fresh produce stands.
Transient or temporary activities.
Activities not visible from the main- traveled way.
Activities conducted more than 660 feet from the nearest edge of the right-of-way.
Activities conducted in a building principally used as a residence.
Railroad tracks and minor sidings.
Communication towers.
Prior to 1999, subsection (3) of Section 479.01, Florida Statutes, read as follows:
'Commercial or industrial zone' means an area within 660 feet of the nearest edge of the right-of-way of the interstate or federal-aid primary system designated predominately for commercial or industrial use under the future land use map of the comprehensive plan adopted pursuant to chapter 163. Where a local governmental entity has not enacted a comprehensive plan by local ordinance but has zoning regulations governing the area, the zoning of an area shall determine whether the area is designated predominately for commercial or industrial uses.
The current language of section 479.01(3) has not changed since the 1999 amendment by Chapter 99-385, Laws of Florida. Section 38 of Chapter 99-385, Laws of Florida, also amended Section 479.07. By amending certain subsections of Section 479.07 but not subsection (10), the 1999 Florida Legislature reenacted the language in subsection (10).
Moreover, the two statutory provisions can be read in harmony. Section 479.01(3), Florida Statutes, defines a commercial or industrial zone in which signs may be located. Section 479.07(10), Florida Statutes, prohibits issuing permits for signs in such zones if the commercial or
industrial zoning was not comprehensively enacted or was enacted primarily to permit signs.
Petitioners further argue that the rulemaking authority found in Section 479.07(10), Florida Statutes, has been, in effect, pre-empted by the enactment of Chapter 163, Florida Statutes. However, Section 163.3211, Florida Statutes, reads in pertinent part as follows:
163.3211 Conflict with other statutes.--
. . . Nothing in this act is intended to withdraw or diminish any legal powers or responsibilities of state agencies or change any requirement of existing law that local regulations comply with state standards or rules. (emphasis supplied)
Petitioners' arguments regarding preemption by later legislative enactment are unpersuasive. Courts will disfavor construing a statute as repealed by implication unless that is the only reasonable construction. Jones v. State, 813 So. 2d
22 (Fla. 2002). Implied repeals of statutes are not favored by the courts and will not be upheld in doubtful cases. Flo- Sun, Inc. v. Kirk, 783 So. 2d 1029 (Fla. 2001).
Further, Petitioners argue that the definition of the word "parcel" in paragraph (2) of the proposed rule conflicts with Section 163.3164(16), Florida Statutes, which reads in pertinent part as follows:
Local Government Comprehensive Planning and Land Development Regulation Act: definitions.--As used in this act:
(16) 'Parcel of Land' means any quantity of land capable of being described with such definiteness that its locations and boundaries may be established, which is designated by its owner or developer as land to be used, or developed as, a unit or which has been used or developed as a unit. (emphasis supplied)
The definition of the word "parcel" selected by the Department is expressly limited to the term as it is used in the proposed rule. Moreover, the definition of parcel found in Chapter 163, Florida Statutes, will have been employed by the local government in determining its comprehensive plan and regulations. It is the result of those determinations that the Department examines within the context of its responsibilities under Chapter 479, Florida Statutes.
Petitioners further argue that paragraphs (3)(b) and
and the definition of "parcel" in subsection (2) of the proposed rule are in conflict with the provisions of Section 479.01(3), Florida Statutes. The evidence presented does not establish that paragraphs (b), (c) or the definition of "parcel" in the proposed rule is in conflict with Section 479.01(3), Florida Statutes.
Based upon the statutory authority outlined above, the Department has not exceeded its grant of rulemaking authority and the challenged proposed rule does not enlarge, modify, or contravene the specific provisions of law
implemented as contemplated by Section 120.52(8)(b) and (c), Florida Statutes.
Section 120.52(8)(d)
Petitioners argue that subsection (3) of the proposed rule is vague, fails to establish adequate standards for agency decisions, and vests unbridled discretion in the agency.
Petitioners contend that subsection (3) of the proposed rule does not provide criteria for determining when zoning is enacted primarily to permit signs. Criteria are commonly understood to be standards, rules, or tests upon which a judgment or decision can be based. American Collegiate Heritage Dictionary 328 (3rd ed. 1997). The factors listed in subsection (3) of the proposed rule are criteria in this commonly understood sense. Petitioners assert that the criteria allow for differing application on a case by case basis. Petitioners also contend that the criteria set out in subsection (3) are vague, fail to establish adequate standards for agency decisions, and vest unbridled discretion in the Department.
An administrative rule is invalid if the rule requires the performance of an act in terms that are so vague that persons of common intelligence must guess at its meaning. Southwest Florida Water Management District v. Charlotte
County, 774 So. 2d 903 (Fla. 2nd DCA 2001), citing Donato v. American Telephone & Telegraph, 767 So. 2d 1146 (Fla. 2000).
The Department has defined the term "parcel" for purposes of the rule. Petitioners argue that the terms "contiguous" and "public access" found in subsections (c) and
are not clearly defined. These terms as used in subsection (3) have common and ordinary meanings. The fact that the rule does not provide finite criteria does not mean that the rule provisions are vague. Persons of common intelligence can understand the list of criteria that the Department will consider in deciding whether zoning was primarily enacted to permit signs.
The question that the Department is required to answer necessitates that it look at a set of facts that will be particular to each zoning action. The proposed rule spells out exactly what the Department will consider as relevant to its decision.
The rule does not create any discretion not articulated in the statute. Section 479.07(10), Florida Statutes, creates the discretion the Department will exercise through the rule. A rule is not invalid merely because the underlying statute confers discretion on the agency. See Florida Public Service Commission v. Florida Waterworks Association, 731 So. 2d 836, 843 (Fla. 1st DCA 1999). The
rule provides standards by which the Department's discretion will be exercised. Any decision by the Department that zoning was enacted primarily to permit signs would have to be tied into the rule criteria, and would be capable of review on that basis. See generally Cortes v. State Bd. Of Regents, 665
So. 2d 132, 138, 140 (Fla. 1st DCA 1995).
The proposed rule implements the discretion given to the Department by the Legislature. "The Legislature itself is hardly suited to anticipate the endless variety of situations that may occur or to rigidly prescribe the conditions or solutions to the often fact-specific situations that arise . . .
." Avatar Development Corp. v. State, 723 So. 2d 199 (Fla. 1999).
Section 120.52(8)(e)
Finally, the Amended Petition alleges that subsection (3)(a) of the proposed rule is arbitrary.4/ Petitioners contend that the list of excluded uses inappropriately tracks the list of excluded uses that appear in the statutory use test created by Sections 479.01(3) and (23), which are set forth above. Petitioners argue that the use test in subsection (23) no longer is viable because of the 1999 amendment to the definition of "commercial or industrial zone" in subsection (3).
The list of excluded uses substantially tracks the list of uses under the statutory test for an "unzoned commercial or industrial area." § 479.01(23), Fla. Stat. The statute in turn tracks the list of uses excluded from the similar use test in the 1972 agreement between the State of Florida and the United States Department of Transportation. The Department's decision to exclude these uses from its rule inquiry follows the same logic found in statute and policy.
A rule is arbitrary if it is not supported by logic or the necessary facts. § 120.52(8)(e), Fla. Stat. The proposed rule is supported by facts and logic.
Based upon the evidence presented and the statutory authority outlined above, the Department has not exceeded its grant of rulemaking authority; the proposed rule does not enlarge, modify, or contravene the specific provisions of law implemented; the proposed rule is not vague, does not fail to establish adequate standards for agency decisions, and does not vest unbridled discretion in the agency; and the proposed rule is not arbitrary.
The Amended Petition challenging proposed Rule 14-10.0052 is denied.
Tallahassee, Leon County, Florida.
___________________________________ BARBARA J. STAROS
Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2004.
1/ All references to Fla. Stat. will be to Florida Statutes 2003, unless otherwise indicated.
2/ Petitioners' Proposed Final Order also asserts that the proposed rule is not supported by competent substantial evidence. However, this language, which was found in Section 120.52(8)(f), Florida Statutes (2002), was repealed by Section 1, Chapter 2003-94, Laws of Florida, and became effective June 4, 2003. Accordingly, that argument will not be addressed in this Final Order. Additionally, Petitioners assert in the Proposed Final Order that the proposed rule will make the permitting process more expensive, complex, and time consuming. The Amended Petition did not allege any violation of Section 120.52(8)(f), Florida Statutes (2003), and, therefore, that argument will not be addressed in this Final Order.
3/ The "preemption" arguments are construed to be a challenge under Section 120.52(8)(c), Florida Statutes.
4/ Petitioners' Proposed Final Order argues that the definition of "parcel" is "contrary to state law and is done without logic, thought or reason." However, the Amended Petition did not allege that the definition of parcel is arbitrary or capricious, but that it is contrary to or in conflict with certain laws. That argument is addressed under the analysis of Section 120.52(8)(b) and (c) herein.
Gerald S. Livingston, Esquire Livingston & Riley P.A.
Robert M. Burdick, Esquire Assistant General Counsel Department of Transportation
Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
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 the original notice of appeal with the Clerk of the Division of Administrative Hearings and a 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.
