STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CROSS KEY WATERWAYS, INC., ) ET AL., )

)

Petitioners, )

)

1. ) CASE NO. 76-274RP

   ) REUBIN O'D. ASKEW, ET AL., )

   )

   Respondents. )

   )

   
   

   FINAL ORDER

   
   

   This matter came before the undersigned hearing officer on a petition challenging the validity of certain rules proposed to the Administration Commission. The challenged rules have been proposed under the authority of Chapter 380.05, F.S., and seek to implement the designation of Monroe County as an area of critical state concern by adopting rules under the authority of 380.05(8), F.S.

   
   

   APPEARANCES

   
   

   For Petitioners: Robert Angerer, Esquire

   Ervin, Varn, Jacobs and Odom Post Office Box 1170 Tallahassee, Florida 32302

   
   

   For Respondent: Richard M. Golodstein, Esquire

   Assistant Attorney General Department of Legal Affairs 725 South Calhoun Street Tallahassee, Florida 32304

   
   

   J. Kendrick Tucker, Esquire Department of Legal Affairs The Capitol

   Tallahassee, Florida 32304

   
   

   Louis Hubener, Esquire Division of State Planning 660 Apalachee Parkway

   Tallahassee, Florida 32304

   
   

   At the prehearing conference held on March 1, 1976, in this matter, it was stipulated that all the petitioners have a sufficient interest to maintain standing to file this petition under 120.54(3), F.S., and that there was no dispute of material fact, nor any testimony to be taken at the final hearing.

   Final hearing in this matter was held on March 3, 1976, in the offices of the Division of Administrative Hearings, Tallahassee, Florida. It was further stipulated at that hearing that Monroe County has been declared an area of

   critical state concern pusuant to Section 380.05, F.S. (See Chapter 28, F.A.C.) and that the proposed rules were being adopted under the general guidelines of 380.05(8).

   
   

   1. The petition in this matter seeks to have these proposed rules declared invalid under 120.54(3), F.S., which states:

      
      

      (3)(a) Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule. . . on the ground:

      1. That the proposed rule is an invalid exercise of validly delegated legislative authority.

      2. That the proposed rule is an exercise of invalidly delegated legislative authority.

         (b) The request seeking a determination under this subsection shall be in writing and most be filed

         with the Division within 14 days after the date of publication of the notice."

         
         

         The parties have stipulated that the petition was filed with the Division of Administrative Hearings within the 14-day time limit after publication of notice in the Administrative Weekly. Paragraphs 7A(1) - (4) of the petition seek to have these rules declared invalid by challenging the statutory authority of the legislature to delegate to the Administration Commission the power to adopt such rules. In effect, the Petitioner challenges the constitutionality of Section 380.05(8). It is fairly well settled that an administrative agency does not have the power to declare a statute unconstitutional. The First District Court of Appeals recently decided in State of FLorida, Department of Administration, Division of Personnel v. State of Florida, Department of Administration, Division of Administrative Hearings and Patricia Harvey. Case No. Y-256 decided February 3, 1976, that the Division of Administrative Hearings did not have the authority to declare matters unconstitutional. Therefore, under the guidelines of that decision, paragraphs 7A(1) - (4) of the petition in this matter were stricken.

         
         

   2. The Petitioners have moved pursuant to 120.57(1)(b) for ten days in which to submit written exceptions to this order. This motion is denied since this matter, being a rule challenge, the hearing officer does not submit a recommended order but a final order. As 120.54(d) states: "Hearings held under this provision shall be conducted in the same manner as provided in Section

      120.57 except that the hearing officers order shall be final agency action." Since this order is a final order and not a recommended order, it would not be appropriate for exceptions to be filed.

      
      

   3. The remainder of the petition challenges the validity of the above rules in that it is claimed they exceed the statutory authority granted by Chapter 380. The only guidelines in Chapter 380.05(8) are that the regulations adopted shall be "land development regulations for the area."

The Peitioners have raised the argument that the proposed rules will, for all practical purposes, impose a moratorium on development in Monroe County. If so, this would be contrary to 380.05(1), which states in part:

"The Commisssion [Administration Commission] is not authorized to adopt any rule that would provide for a moratorium on development in any area of critical state concern."

If the Petitioners' argument is correct, that is, that the proposed rules do impose a moratorium, then it seems clear the rules would be an invalid exercise of validly delegated legislative authority, for the utles would directly contravene Chapter 380.

However, a review of these rules reveals no more than what is authorized by the statute. The appropriate rule-making authority in question is found in Section 380.05(8), which states:

If any local government fails to transmit land development regulations the state land

planning agency shall submit to the Administration Commission recommended land development regulations applicable to that local government's portion of the area of critical state concern. "

It is quite clear the Administration Commission has been given the authority, under certain conditions, to impose land development regulations. There has been no allegation or any proff furnished that the necessary conditions for the imposition of these regulations has not been met. The Petitioners' only challenge to the validity of these rules (except for those portions of the petition which were stuck) relates to the statutory rule-making authority of the Commission. Since the rules in question do not impose a moratorium on development, it is clear they do fall within the Commission's statutory regulatory authority.

The proposed rules can easily be likened to zoning ordinances. Since they regulate land use, there is no reason apparent to this hearing officer as to why decisions regarding soning would not be applicable to these proposed rules. It has always been quite clear that zoning ordinances are presumed valid and a court may not substitute its judgement for that of the legislative body where the evidence demonstrates the need for public regulation. An ordinance is considered valid if it is fairly debatable. City of St. Petersburg v. Aikin,

217 So.2d 315 (Fla. 1968); State ex rel Office Realty Company v. Ehinger, 46 So.2d 601 (Floa. 1950); State ex rel Taylor v. City of Jacksonville, 133 So.114 (1931). The Petitioners have also made the argument that the proposed rules are in many instances tantamount to inverse condemnation, that is, the taking of property without just compensation. This hearing officer cannot take notice that the above rules would have such an effect. The question of inverse condemnation is in part a factual question. Since no evidence or exhibits wee presented which would have a bearing on how these rules would operate, it cannot be ruled that such a result would be inevitable.

Furthermore, the proposed rules have provisions whereby affected or aggrieved parties may seek variances from the strict guidelines of these rules. To successfully make a claim of inverse condemnation, a landowner would have to own the parcel of property which was prohibited from any development by these rules and who also was denied a variance for proposed development. Only then could this landowner be in a position to make the claim that by being denied the use of his land, and unlawful taking had taken place. In the present posture of this case, such an argument is purely conjectural.

It is, therefore, Ordered that the Petition seeking to declare the invalidity of the above referenced rules is Denied.

DONE and ORDERED this 8th day of March 1976, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

Copies furnished:

Thomas A. Harris, Esquire Assistant Attorney General Department of Legal Affairs Civil Division

725 South Calhoun Street Tallahassee, Florida 32304

Joseph C. Jacobs, Esquire

and Robert J. Angerer, Esquire Ervin, Varn, Jacobs & Odom Post Office Box 1170 Tallahassee, Florida 32302

Murray H. Dubbin, Esquire Dubbin, Schiff, Berkman & Dubbin 1000 Rivergate Plaza

444 Brickell Avenue Miami, Florida

Fred N. Tittle, Jr., Esquire Tittle and Tieele, P.S.

Post Office Box 535 Tavernier, Florida 33070

Louis Hubener, Esquire Division of State Planning 660 Apalachee Parkway

Tallahassee, Florida 32304

David V. Kerns, Esquire General Counsel

Department of Administration Room m 530, Carlton Building Tallahassee, Florida 32304

J. Kendrick Tucker, Esquire Department of Legal Affairs The Capitol

Tallahassee, Florida 32304

Richard M. Goldstein, Esquire Assistant Attorney General Department of Legal Affairs 725 South Calhoun Street Tallahassee, Florida 32304

Docket for Case No: 76-000274RP

Orders for Case No: 76-000274RP