CAROLE C. POPE, )
vs. ) Case No. 03-3860RX
) CLIFFORD S. RAY AND MARIA S. ) RAY, )
Intervenors. )
vs. ) Case No. 03-3861RU
) CLIFFORD S. RAY and MARIA S. ) RAY, )
Intervenors. )
These consolidated cases were heard by David M. Maloney, Administrative Law Judge of the Division of Administrative Hearings on November 13, 2003, in Tallahassee, Florida.
For Respondent: Mark S. Miller, Esquire
For Intervenors: Kenneth J. Plante, Esquire
225 South Adams Street, Suite 250 Post Office Box 10369 Tallahassee, Florida 32302-2369
Whether Florida Administrative Code Rule 62B- 33.008(4)(d) should be determined to be an invalid exercise of delegated legislative authority? The Rule requires that an application for a permit for construction seaward of a coastal construction control line ("CCCL") contain "written evidence, provided by the appropriate local government agency . . ., that the proposed activity . . . does not contravene local setback requirements, zoning, or building codes and is consistent with the State approved Local Comprehensive Plan."
Whether a statement alleged to have been made by an employee of the Bureau of Beaches and Wetland Resources in the Department of Environmental Protection ("DEP" or "the Department") violated Section 120.54(1)(a), Florida Statutes? The alleged statement is to the effect that in determining if structures littoral to the coast have established a continuous construction line closer to the mean high water line than the CCCL, the Department uses a 1000-foot distance to structures on either side of the proposed project.
PRELIMINARY STATEMENT
On October 17, 2003, Carole C. Pope, ("Petitioner" or "Ms. Pope") filed at the Division of Administrative Hearings ("DOAH") a document entitled, "Request for Administrative Hearing to Challenge the Validity of an Existing Rule and an Agency Statement Defined as a Rule FS 120.56." Because the request (or petition) initiated two discrete administrative proceedings, one challenging an existing rule pursuant to
Section 120.56(1) and the other challenging as unpromulgated an agency statement alleged to meet the definition of "rule" in the Administrative Procedure Act pursuant to Section 120.56(3), Florida Statutes, two case numbers were assigned to the petition. The first, Case No. 03-3860RX, pertained to the challenge to the existing rule. The second, Case No. 03-3861RU,
pertained to the challenge to the alleged statement of the agency.
On October 21, 2003, the Clerk of the Division of Administrative Hearings notified the Bureau of Administrative Code by letter of the filings of both the existing rule challenge and the un-promulgated rule challenge (the "Rule- related Cases"). The next day, October 22, 2003, the undersigned administrative law judge was designated to conduct the proceedings in the two Rule-related Cases. On the motion of the undersigned, the two cases were consolidated the same day.
Likewise on October 22, 2003, an Order of Pre-Hearing Instructions was issued in the consolidated cases and the cases were noticed for hearing to commence November 13, 2003.
In the meantime, on October 23, 2003, the Department filed at DOAH a Request for Assignment of Administrative Law Judge and Notice of Preservation of Record. Attached to the request was a petition for an administrative proceeding filed at DEP's Bureau of Beaches and Wetland Resources on October 17, 2003, the same day the two Rule-related Cases were filed at DOAH.
Relief sought by the petition includes denial of the permit application of Clifford and Maria S. Ray (named as co- respondents with DEP in this third case) that had been preliminarily approved. The petition was assigned Case No.
03-3981 and the undersigned was designated to conduct
administrative proceedings to culminate in issuance of a recommended order.
In a joint response to the Initial Order issued in Case No.
03-3981 (the "Permit Case"), the parties agreed that the case should be consolidated with the two Rule-related Cases. An order consolidating the three cases, therefore, was entered. Clifford and Maria Ray (the "Rays" or "Intervenors"), already co-respondents in the Permit Case, filed a Petition to Intervene in the Rule-related Cases. The petition was granted.
Set to proceed to hearing in Cocoa, Florida, on January 20, 2004, the three cases were subsequently the subjects of an order of severance because of scheduling and logistical obstacles. By the order of severance, the Permit Case was severed from the two Rule-related Cases. The consolidation of the Rule-related Cases was not affected by the severance order.
The Rule-related Cases, Case Nos. 03-3860RX and 03-3861RU, were re-noticed for hearing to commence November 13, 2003, as originally set prior to the consolidation with the Permit Case and the order of severance.
In the interim, Petitioner filed a request for official recognition. The request was granted and official recognition was taken of the materials submitted with the request. The Rule-related Cases then proceeded to hearing as scheduled on November 13, 2003. In addition, on his own motion, following
the hearing, the administrative law judge has taken official recognition of the petition in Case No. 03-3981.
Petitioner proceeded first. Ms. Pope offered her own testimony and called two witnesses: Tony McNeal, P.E., and Srinivas Tammisetti, P.E. Ms. Pope offered 14 exhibits, marked for identification as Petitioner's Exhibits 1-14. All were admitted into evidence. The Department recalled Mr. McNeal as its own witness. The Rays called one witness, Joyce Gumpher, and offered two exhibits marked for identification as Intervenors' Exhibits 1 and 2, both of which were admitted.
The parties agreed to file at DOAH proposed orders by the close of business, Tuesday, November 18, 2003. Proposed final orders were timely filed by all (DEP's proposed order was adopted by Intervenors). This Final Order follows. All Florida statutory citations are to Florida Statutes (2003) unless otherwise indicated.
FINDINGS OF FACT
The CCCL and Continuous Lines of Construction
The CCCL
The Legislature has declared it in the public interest to preserve and protect Florida's beaches and the coastal barrier dunes adjacent to them. See § 161.053(1)(a), Fla. Stat. In furtherance of this intent, the Department is empowered to "establish coastal construction control lines on a county basis
along the sand beaches of the state fronting the Atlantic Ocean
. . .". id., "after it has been determined from a comprehensive engineering study and topographic study that the establishment of such control lines is necessary for the protection of upland properties and the control of beach erosion." § 161.053(2)(a), Fla. Stat.
The Department defines "Coastal Construction Control Line" or "CCCL" as "the line established pursuant to the provisions of Section 161.053, F.S., and recorded in the official records of the county, which [delineates] that portion of the beach-dune system subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions." Fla. Admin. Code R. 62B-33.002(12).
Brevard County's CCCL bisects property along the Atlantic Ocean owned by Petitioner and her husband.
Continuous Lines of Construction
The Department is mandated to exempt from some regulation certain construction that is seaward of a CCCL. See, e.g., Section 161.053(2)(b)1., Florida Statutes, which relates to construction landward of beach armoring. In addition, the Department is granted discretion to permit construction seaward of a CCCL in other instances. One such instance relates to construction landward of "a reasonably continuous and uniform construction line," Section 161.053(5)(b), Florida Statutes (a
"Continuous Line of Construction") that is seaward of the CCCL. Subsection 161.053(5)(b):
(5) Except in those areas where local zoning and building codes have been established pursuant to sub-section (4), a permit to alter, excavate, or construct on property seaward of established coastal construction control lines may be granted by the department as follows:
* * *
(b) If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing [the coastal construction control lines], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department. However, the department shall not contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than, those requirements provided herein . . .
This proceeding involves a permit for construction seaward of the CCCL and landward or on a Continuous Line of Construction. The lines are in Brevard County where property is owned by both Petitioner and Intervenors, who, together with DEP, comprise the parties to this proceeding.
The Parties
Petitioner
Carol C. Pope resides part-time in a duplex along Wilson Avenue on Cape Canaveral in Brevard County. She owns this oceanfront property, littoral to the Atlantic Ocean, with her husband James M. Pope.
Although the property has a Cocoa Beach mailing address, it is not within the city limits of Cocoa Beach. The pre-hearing stipulation filed by all of the parties offers this account of the property's location: "The Pope's property is Lot 11, Block 101, Avon by the Sea, as described in Plat Book 3 page 7, [presumably in the Official Records of Brevard County] and east to Ocean, except the west 13 feet of Lot 11."
Ms. Pope is the Petitioner in both of the consolidated cases that comprise this proceeding.
The Department
Among many duties related to environmental protection, the Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat.
The Act confers on the Department the authority "to adopt rules related to the following provisions of this section [§ 161.053]: establishment of coastal construction control
lines; activities seaward of the coastal construction control line; exemptions; property owner agreements; delegation of the program; permitting programs; and violations and penalties."
§ 161.053(21), Fla. Stat.
Pursuant to its rule-making authority in Section
161.053 (together with other specific authority), the Department promulgated Rule Chapter 62B-33: "Office of Beaches and Coastal Systems - Rules and Procedures for Coastal Construction and Excavation (Permits for Construction Seaward of the Coastal Construction Control Line and Fifty-Foot Setback)."
Two employees of the Department Tony McNeal, P.E., and Srivinas Tammisetti, P.E., testified at hearing. Both are engineers and both are involved with the Coastal Construction Control Line Program. Mr. McNeal is the program administrator. Mr. Tammisetti is a Professional Engineer II with the Department's Bureau of Beaches and Wetland Resources (the "Bureau"). He is responsible for "coastal armoring projects for the entire state" (tr. 52) and he is the head engineer for Lee County. In his capacity with the Bureau, Mr. Tammisetti reviews applications for activities seaward of the coastal construction control line.
The Rays
Clifford and Maria Ray are the owners of the property adjacent to Petitioner's property and the holders of Permit No.
BE-1083 (the "Permit") issued by the Department in its order filed September 19, 2003.
The Permit is the subject of the administrative proceeding initiated by Ms. Pope in DOAH Case No. 03-3981.
Events Preceding the Permit's Issuance
The Rays applied to DEP for a permit to conduct activities seaward of the CCCL, including construction of an eight-story, multi-family dwelling, a swimming pool and deck, a wooden beach/dune walkway, a parking area, masonry walls, and an exfiltration system. The Department approved the application.
The Department's order issuing the Permit is titled "Permit for Construction or Other Activities Pursuant to Section 161.053, Florida Statutes." Intervenor's Ex. 1, Tab 6, pg. 1. The Permit acknowledges the application is for "authorization to conduct . . . activities seaward of the coastal construction line" and describes the location of the proposed project as "landward of the 30-year erosion projection and the existing line of construction established by major structures in the immediate area [the Continuous Line of Construction]." Id.
While the application was pending before DEP, Ms. Pope visited the offices of the Department in Tallahassee several times. During the first visit (June 23, 2003), Ms. Pope reviewed the permit file and met with Mr. Tamisetti.
At one point in the meeting, Ms. Pope asked
Mr. Tamisetti how he determines the existence of Continuous Construction Lines. Ms. Pope testified at hearing that Mr. Tamisetti's answer was to the effect that "we look at a thousand feet on either side of the proposed structure." (Tr. 20). These were not necessarily Mr. Tamisetti's exact words but it is clear from the record that the substance of
Ms. Pope's claim of what was said is correct; Mr. Tamisetti told Ms. Pope that the Department uses a thousand-foot distance on either side of a proposed structure in order to determine whether existing structures have established a Continuous Line of Construction seaward of the CCCL.
The Rule
Among the rules in the chapter for which Section
161.053 served as the sole specific authority is Rule 62B-33.008 (the "Rule"). It bears the catchline "Permit Application Requirements and Procedures." The Petition of Ms. Pope in Case No. 03-3860RX challenges subsection (d) of Section (4) of the
Rule:
(4) Any person desiring to obtain a permit for construction seaward of the coastal construction control line (CCCL) . . . from the Department . . . shall submit two copies of a completed application form.
* * *
The application form shall contain the following specific information:
* * *
(d) Written evidence, provided by the appropriate local governmental agency having jurisdiction over the activity, that the proposed activity, as submitted to the Office, does not contravene local setback requirements, zoning, or building codes and is consistent with the state approved Local Comprehensive Plan.
Fla. Admin. Code R. 62B-33.008(4)(d). The Rule implements Section 161.052, "Coastal construction and excavation; regulation" as well as Section 161.053.
Petitioner contends that the quoted portion of the Rule should be determined to be invalid because, while the statute directs that DEP in issuing permits of the kind obtained by the Rays "shall not contravene" local setbacks and building and zoning codes, it does not authorize DEP "to rely upon a letter mailed to an applicant from someone employed by an "appropriate" local government to prove that an activity would comply with the statutory directive." Proposed Final Order submitted by Petitioner, p. 18.
As pointed out by Ms. Pope in her Proposed Final Order, DEP does not maintain nor does it require applicants for permits related to activity seaward of a CCCL to submit comprehensive land use plans, local setback requirements, zoning or building codes of counties and municipalities along Florida's
coast. Instead, as sanctioned (in fact, required) by the Rule, DEP allows applicants to submit written evidence provided by the local government that the proposed activity does not contravene the enumerated regulations and is consistent with the local comprehensive plan.
The parties have stipulated that the Department has not delegated its permitting authority under Chapter 161, Florida Statutes, to Brevard County.
The Statement
The statement made by Mr. Tamisetti (the "Statement") is similar to one he has made many times over the course of his employment with the Department. Without reservation,
Mr. Tamisetti testified as much at hearing. The Statement has been interpreted as DEP's common method of prescribing lines of continuous construction by at least one member of the public. A professional engineer who conducts coastal engineering analysis, opined in writing to one of his clients that:
The DEP has commonly prescribed the "line of
continuous construction" by
the line established by the average seaward limits of the foundations of the structures within 1000 feet north and 1000 feet south of the subject property
or
the seaward limits of the most
seaward structures within 1000 feet north and south of the subject property
Petitioner's Ex. 14, p. 1 following the cover letter.
Mr. Tamisetti maintained at hearing, however, that the statement he made to Ms. Pope was not a common method for determining a Continuous Construction Line. Rather, the Statement constituted a starting point for those who inquired about how such lines were determined to exist. The Department does not contend otherwise. In the Pre-hearing Stipulation executed by all parties, the Department's position with regard to the Statement of Mr. Tamisetti is found on page 4: "The statement [that DEP uses a 1000-foot distance on either side of a proposed structure to establish a Continuous Line of Construction] is merely a guideline to allow applicants and their engineers a starting place for providing the Department information regarding the line of construction."
The reason for the Statement was discussed by
Mr. Tamisetti in his testimony. When a concerned party poses the question of how DEP would determine a Continuous Line of Construction as to a certain site, the question can only be definitively answered by asking questions of that party, in turn, and requesting sufficient data. Responding might entail costs prohibitive to the party. "A thousand feet" is offered as "a starting point . . . to give them something" (tr. 61) as an estimate for whether to pursue the effort to have such a line
established. In one project, Mr. Tamisetti offered, the distance from a proposed structure to an existing structure might be "500 feet"; in another "2000 feet." (Tr. 61, 62). Ultimately, Mr. Tamisetti insisted the determination is site specific and cannot be made across the board on the basis of a measurement of 1000 feet.
The Permit's Relationship to the Statement
Ms. Pope produced evidence of the location of a Continuous Line of Construction determined by DEP to exist for purposes of the Ray's permit, DEP Permit No. BE-1083. She concludes in her proposed final order:
[T]he line that DEP depicted approximates the line that would be derived by drawing a line from existing structures within 1000 feet on either side of the structure proposed in BE-1083. (citation to record omitted) The derivation of the line of continuous construction can only be a result of using the foundations of building within 1000-feet on either side of the proposed Michelina Condominium, as readily seen on the DEP April 2002 aerial photograph . . .
Proposed Final Order, submitted by Petitioner, p. 8.
Furthermore, Ms. Pope points out DEP has two rules relevant to the interrelationship between the permit and her claim that the Statement is a rule in violation of Section 120.54(1)(a), Florida Statutes. Florida Administrative Code Rule 62B-33.005(4), in her view, requires that applications for
permits to conduct activity seaward of a CCCL "be 'clearly justified' by the applicant." Id. "Secondly," she asserts,
DEP has an existing rule that requires applications to include surveys that depict accurate dimensions and locations of the foundation outlines of any existing structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line. Rule 62B- 33.008(4)(f)15, F.A.C.
Id., at 8-9.
These rules relate, obviously, to the Permit Case.
Coupled with the location of the Continuous Line of Construction determined by DEP with regard to the Rays' application for purpose of the un-promulgated rule challenge, however, they do not overcome other evidence as to how the Bureau determines the existence of Continuous Lines of Construction seaward of CCCLs. That evidence is the testimony of Mr. McNeal, the head of DEP's Coastal Construction Control Line Program.
The Testimony of Mr. McNeal
Ms. Pope's claim that the only credible evidence in the case demonstrates that the Statement is an un-promulgated rule overlooks convincing credible evidence provided by
Mr. McNeal. Mr. McNeal's testimony shows that the Statement is not reflective of a policy followed by DEP that creates rights or imposes duties upon the regulated. It is not reflective of a policy of the Bureau of Beaches and Wetland Resources that does
so either. Nor is it reflective of such a policy of the Bureau's Coastal Construction Control Line Program.
As explained by Mr. McNeal, if an applicant would like to build on a Continuous Construction Line seaward of the CCCL, the applicant typically must demonstrate that the Continuous Construction Line exists by data provided with the application.
Petitioner's Exhibit 7, entitled "Request for Additional Information" was identified by Mr. McNeal at hearing as "a template for our standard information package that comes with the application." (Tr. 40). "The items of information listed [on the request] are numbered to correspond with the item numbers on the application form." Petitioner's Ex. 7, p. 1. The following appears under Item 9:
Two copies of a topographic survey drawing of the subject property. The topographic information depicted in the drawing shall be from field survey work performed not more than six months prior to the date of application. The topographic survey drawing shall include the following specific information:
* * *
- Accurate dimensions and locations of the foundation outlines of any existing structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line if the permit is requested under the provisions of 161.053(5)(b), . . . Florida Statutes . . .
(Id., pps. 2-3). There is no reference to the "1000 feet" measurement in the Bureau's Request for Additional Information.
Furthermore, when an application is submitted that is incomplete with regard to the location of existing structures, the Department does not always resort to a request for additional information. The Department has an extensive database that includes aerial photographs, GIS images, and topographic information collected with regard to DEP reference monuments spaced along the shoreline. On occasion, the DEP database is sufficient to determine whether such a line exists without additional information provided by the applicant.
When a determination of a Continuous Line of Construction is made by DEP, it is made specific to the site of proposed construction on the basis of the information submitted by the applicant or on the basis of publicly held data. The determination is not made on the basis of Mr. Tamisetti's statement to Ms. Pope or on the basis of unwritten policy related to existing structures within 1000 feet of the proposed
structures.
A Rule of Thumb for Prospective Applicants
Mr. McNeal's testimony sheds direct light on the actual practice of DEP and the Bureau of Beaches and Wetland Resources in determining the existence and location of Continuous Lines of Construction.
When the Petitioner's case is measured against the Department's, the best for Petitioner that can be said of the Statement is that it is precisely what Mr. Tamisetti claims. It is a "rule of thumb," and a rough one at that, for whether it is worthwhile for a party to pursue the establishment of a Continuous Construction Line in order to conduct activity, including construction, seaward of an established CCCL. It does not constitute an agency statement of general applicability that meets the definition of a "rule" in the Administrative Procedure Act and that is subject to the Act's rule-making requirements.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. § 120.56, Fla. Stat.
Standing
Ms. Pope has standing to initiate the proceedings in both Case Nos. 03-3860RX and 03-3861RU. The Intervenors have standing to participate in this proceeding.
Burden
Petitioner has the burden of proving that Florida Administrative Code Rule 62B-33.008(4)(d) should be determined to be an invalid exercise of delegated legislative authority.
Dravo Basic Materials v. Department of Transportation, 602 So. 2d 632 (Fla. 1st DCA 1992).
Petitioner has the burden of proving the allegations of the petition in the challenge to the Statement. If proven, the agency has the burden of proving that rulemaking is not feasible and practicable under Section 120.54(1)(a), Florida Statutes. § 120.56(4)(b), Fla. Stat.
The Rule
In her amended petition, Ms. Pope posits that the Rule should be determined to be an invalid exercise of legislative authority on the basis of any of four paragraphs in the Administrative Procedure Act's definition of "invalid exercise of delegated legislative authority":
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;
* * *
§ 120.52(8), Fla. Stat.
On its face, the plain and ordinary language of the Rule requires an applicant to submit information from a local government with regard to adherence to local regulation. At the same time, the Rule, on its face does not establish an evidentiary standard for issuance of the permit.
In light of the plain and ordinary language of the Rule, it is apparent that the Department has not exceeded its rulemaking authority in promulgating the parts of the Rule Petitioner seeks to have determined invalid. Nor does the Rule enlarge, modify or contravene the provisions of the laws implemented: §§ 161.052 and 161.053, Fla. Stat. To the contrary, the Rule is merely an aid to the Department. It does no more than require information to support a preliminary assurance upon review of an application that a permit DEP may issue for activity seaward of a CCCL along a Continuous Line of Construction does not "contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than, those requirements provided [with regard to CCCLs]." § 161.053(5)(b), Fla. Stat.
Petitioner argues that provisions in statutes related to Areas of Critical State Concern that allow the Department of Community Affairs oversight with regard to permitting by local governments within such areas demonstrate that the Legislature did not intend for DEP to rely on statements by local government for compliance with local requirements related to permits of the sort obtained by the Rays. The analogy is misplaced for a host of reasons that differentiate a local government in an Area of Critical State Concern from the local governments that have jurisdiction over the property with which this proceeding is concerned.
Nonetheless, if an applicant for a permit authorizing activity seaward of a CCCL on the basis of a Continuous Line of Construction is provided by local government with written evidence that the proposed activity does not contravene local requirements and is consistent with the local comprehensive plan when just the opposite is the case, a party who opposes the permit (like Ms. Pope) has the option to initiate administrative proceedings. Those proceedings may include requesting a "de novo" hearing, precisely as Ms. Pope has done in the Permit Case.
Likewise, there is nothing about the Rule that is vague, fails to establish adequate standards, vests unbridled discretion in DEP, or is arbitrary or capricious. As DEP points
out, it would be unreasonable to require DEP to expend time and resources to determine independently whether local requirements are contravened when local government, the first authority on its own ordinances, views any permit to be in compliance with local requirements. It defies common sense that the Legislature meant by Section 161.053(5)(b) that DEP should expend such resources on determining compliance with local government requirements independently of local government's position when local government is on record having determined compliance unless there is good reason such as proof provided by an opponent to the permit, like Ms. Pope, by way of a de novo administrative proceeding or otherwise.
The Department and the Rays do not agree that Ms. Pope may offer evidence in the Permit Case that the Rays' permit does, indeed, contravene local requirements. The Department says in its Proposed Final Order,
Despite the fact that Petitioner . . . disagrees with the local government in its interpretation of its setback requirements, [building and] zoning [requirements] and Local Comprehensive Plan, they are not issues with which Section 161.053, Florida Statutes, require the Department to address.
DEP Proposed Final Order, p. 28.
The Department does not provide any authority for its position other than Section 120.52(1)(c), Florida Statutes, which provides as part of its definition of "Agency":
Each other unit of government in the state, including counties and municipalities, to the extent they are expressly made subject to this act by general or special law or existing judicial decisions.
Ultimately, of course, determinations of what evidence is admissible in the Permit Case will be made in that case.
For purposes of this proceeding it is sufficient to observe that Section 161.053(5)(b), Florida Statutes, does not make Brevard County or any local government within it subject to the Administrative Procedure Act. Nor does the Beaches and Shores Preservation Act by the permitting powers it confers on DEP pre-empt local government regulation. GLA Associates, Inc. v. The City of Boca Raton, 855 So. 2d 278 (Fla. 4th DCA 2003). The power to permit through state regulation, however, is limited under the terms of the statute by more strict local regulation. In the case of Section 161.053(5)(b) permits (one of which has been issued to the Rays), the statute requires DEP to ensure that any permit it issues does not contravene local requirements. While the Rule's requirement for submission of a statement from local government that local requirements are not contravened does not run afoul of the statute, there is nothing
in the statute that indicates that DEP is free from making an independent determination when pressed by way of a party seeking a de novo administrative proceeding who contends that local requirements are contravened despite the position of local government. To the contrary, such a determination by DEP is exactly what the plain language of the statute appears to require.
Ms. Pope, for her part, is in the process of requiring DEP to ensure that its permit does not contravene local requirements. Her petition in the Permit case alleges "Brevard County approved a site plan for the proposed structure that is in violation of county zoning ordinances and comprehensive plan in place as of April, 2001." Under the section of her petition entitled "Specific Rule or Statutes that Require Reversal or Modification of the Department's Action," she cites what appears to be at least seven separate provisions of Brevard County Codes.
No authoritative interpretation of the statute has been provided by DEP or the Rays to the effect that compliance with local regulation is solely within the jurisdiction of the circuit court in and for Brevard County by way of its review. To the contrary, the plain language of the statute is that it is the responsibility of DEP to ensure its permits do not contravene those requirements.
In sum, "[t]he fact that an agency may wrongfully or erroneously apply [a rule] in any given situation does not invalidate the Rule." Hasper v. Department of Administration, 459 So.2d 398, at 400 (1st DCA 1984).
The Challenged Statement
As a rough rule of thumb or (as stipulated by the parties) a guideline, the statement of Mr. Tamisetti does not have the force and effect of law. See Department of Revenue v. Novoa, 745 So. 2d 378, (Fla. 1st DCA 1999)(Benton, J., dissenting) in which Judge Benton explains the per curiam
affirmances of orders in Lawrence v. Department of Health and Rehabilitative Services, 18 F.A.L.R. 1435 (DOAH 1996) and Whisler v. Department of Corrections, 20 F.A.L.R. 1844 (DOAH 1996)). "Although each was affirmed per curiam without opinion, the result in each can be explained on the basis that the . . . guidelines at issue there were intended only to afford guidance and not to have the force and effect of law." Id., at 385. See Department of Highway Safety and Motor Vehicles v. Florida
Police Benevolent Ass'n, 400 So. 2d 1302, 1303 (Fla. 1st DCA 1981).
Furthermore, as written by Judge Padovano in Novoa, above, whether departmental policy "meets the definition of a rule in section 120.52(15) depends, in a broad sense, on the kind of governmental power the Department purports to exercise."
Novoa, 745 So. 2d at 381. "[T]he definition of a rule should [not] be applied so expansively that it brings all agency functions within the direct supervision of the legislature." Id. Mr. Tamisetti's statement provides applicants for permits, like the Rays, with a place to begin the inquiry as to whether pursuing such a permit would be worthwhile toward the end of allowing them to make such a decision in a way that would not be cost prohibitive.
The Statement does not meet Chapter 120's definition of the term "Rule": "each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the practice and procedure requirements of an agency . . ." § 120.52(15), Fla. Stat. The Statement did not create any right or impose any obligation on the regulated. It did not have the force and effect of law.
The greater weight of the evidence establishes that it was not used by DEP or the Bureau in setting the Continuous Line of Construction that applies to the Ray's permit. It did nothing more than offer a concerned party a starting point in deciding whether or not to pursue a permit for activity seaward of a CCCL pursuant to Section 161.053(5)(b), Florida Statutes.
Florida Administrative Code Rule 62B-33.008(4)(d), is not determined to be an invalid exercise of delegated legislative authority. The Statement made by Mr. Tamisetti to Ms. Pope is determined not to violate Section 120.54(1)(a), Florida Statutes.
DONE AND ORDERED this 24th day of November, 2003, in Tallahassee, Leon County, Florida.
DAVID M. MALONEY
Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2003.
Mark S. Miller, Esquire
Kenneth J. Plante, Esquire Roetzel & Andress
225 South Adams Street, Suite 250 Post Office Box 10369 Tallahassee, Florida 32302-2369
Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard
Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard
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.
