STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAR-CON DEVELOPMENT, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-1086RX

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on October 31, 1983, in Cocoa, Florida.

APPEARANCES

For Petitioner: Robert A. Routa, Esquire

217 South Adams Street Tallahassee, Florida 32302

For Respondent: Dennis R. Erdley, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Petitioner, Gar-Con Development, Inc. ("Petitioner") in accordance with the provisions of Section 120.56, Florida Statutes filed a petition with the Division of Administrative Hearings to determine the invalidity of Rule 17- 4.28(8), Florida Administrative Code. Petitioner and Respondent, the Department of Environmental Regulation ("DER" or "Respondent") entered into a pre-hearing stipulation agreeing that Petitioner has standing to maintain this rule challenge as a result of Respondent's issuing an intent to deny Petitioner's request for a permit to construct a dock.

At the final hearing, Petitioner called M. R. Simpers, John DuBose and Mark Latchs its witnesses. Petitioner offered Petitioner's Exhibits 1 through 10, which were received into evidence. Respondent called Reese Kessler and Helen Setchfield as its witnesses. Respondent offered no exhibits for inclusion in the record.

Petitioner contends that Rule 17-4.28(8), Florida Administrative Code, is invalid because, as applied by DER, the rule prohibits construction of docks in specific circumstances where no such prohibitions exist in either Chapter 403 or Chapter 253, Florida Statutes, or in any other statute under which DER could arguably regulate dock construction activities.

Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. Petitioner is the owner and developer of real property in Brevard County, Florida. Petitioner applied to DER for a development permit to construct three wooden docks and retain an existing wooden dock on its property. The docks were designed to provide a total of 58 mooring slips.

   
   

2. On March 13, 1983, the Department issued an Intent to Deny the requested permit, On March 10, 1983, Petitioner filed a petition for a formal 120.57(1), Florida Statutes, hearing on DER's intent to deny the permit application.

   
   

3. DER's Intent to Deny asserted DER jurisdiction under Chapters 403 and 253, Florida Statutes and Rule 17-4.28 and 17- 4.29, Florida Administrative Code. DER contends that the construction of the proposed docks was to be conducted in areas within DER jurisdiction under Rules 17-4.28(2) and 17- 4.29(1). Additionally, DER asserted that the proposed project was located in Class II waters approved for shellfish harvesting, and that dredging in those areas was prohibited by Rule 17-4.28(8)(a), Florida Administrative Code, which provides, in pertinent part, as follows:

   
   

   The Department recognizes the special value and importance of Class II waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shellfish. Therefore, it shall be the department's policy to deny applications for permits for certifications for dredging or filling activities in Class II waters, except where the applicant has submitted a plan of procedure which will adequately protect the project area and areas in the vicinity of the project from significant damage. The department shall not issue a permit for dredging or filling directly in areas approved for shellfish harvesting by the Department of Natural Resources. . . .

   
   

4. The parties have stipulated, and the record otherwise established, that Petitioner is substantially affected by Rule 17-4.28(8)(a), which is challenged in this proceeding, by virtue of the fact that DER asserts that rule as a grounds for denying the requested permit.

   
   

5. Both Petitioner and Respondent have submitted proposed findings of fact concerning whether the driving of pilings for the construction of the dock constitutes "dredging", so as to invoke the prohibition against such activities contained in Rule 17-4.28(8)(a). It is specifically determined that these facts are irrelevant to the issue to be determined in this cause, as will more fully hereinafter appear.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to this proceeding. Section 120.56, Florida Statutes.

   
   

7. No agency has inherent rulemaking authority, Section 120.54(14), Florida Statutes, and each rule promulgated by an agency must be based upon validly delegated legislative authority. Section 120.54(4)(a), Florida Statutes.

   
   

8. The 1983 Florida legislature amended Section 403.061 (29), Florida Statutes, empowering DER to:

   
   

   Adopt by rule special criteria to protect Class II shellfish harvesting waters. Rules previously adopted by the department in s.

   17-4.28(8)(a), Florida Administrative Code, are hereby ratified and determined to be a valid exercise of delegated legislative authority and shall remain in effect unless amended by the Environmental Regulation Commission. (Emphasis added).

   
   

9. The Petitioner in this cause has not attacked the facial validity of Rule 17-4.28(8), Florida Administrative Code, nor indeed could it successfully do so in light of the aforementioned provisions of amended Section 403.061(29), Florida Statutes. Instead, Petitioner has attacked Respondent's interpretation of that rule as prohibiting the driving of pilings for dock construction in Class II waters which have been approved for shellfish harvesting. This interpretation, according to Petitioner, is fatal to the validity of Rule 17- 4.28(8)(a). It should be borne in mind that Petitioner has not challenged the agency's interpretation of Rule 17-4.28(8) as prohibiting the driving of piling to be an unpromulgated rule, instead asserting only that this interpretation renders the rule itself invalid. This contention is without merit. In McDonald

   v. Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977), the court held that agencies were not required to exclusively utilize the rulemaking procedures of Chapter 120, Florida Statutes to develop or change agency policy, but are free to develop and change that policy on a case-by-case basis in the adjudication of individual cases. In choosing this option however, the price to be paid by the agencies in developing or changing their policy by the adjudication of individual cases is the necessity that those policies be fully explicated on the record in each individual case. See Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So. 2d 1177 (Fla. 1st DCA 1981). Accordingly, the real question for decision under the facts of this case is whether the placing of pilings constitutes "dredging" within the meaning of Rule 17-4.28(8)(a), which is a factual determination more properly addressed in the context of a Section 120.57(1) proceeding.

   
   

10. Petitioner having failed to demonstrate any grounds for invalidating Rule 17-4.28(8), Florida Administrative Code, and with a view toward the recognition by the legislature in Section 403.061(29), Florida Statutes, that said rule constitutes a valid exercise of delegated legislative authority, it is

ORDERED that the relief sought by Petitioner be, and the same is hereby DENIED, and the petition DISMISSED.

DONE and ENTERED this 23rd day of May, 1984 in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1984.

COPIES FURNISHED:

Robert A. Routa, Esquire Roberts, Egan & Routa, P.A. Post Office Box 1386 Tallahassee, Florida 32302

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301

Dennis R. Erdley, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Docket for Case No: 83-001086RX

Orders for Case No: 83-001086RX