STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORGANIZED FISHERMAN OF FLORIDA, ) SOUTHEASTERN FISHERIES ASSOCIATION, ) INC., LEE COUNTY FISHERMAN'S )

COOPERATIVE, INC., GOODRICH ) SEAFOOD, CLIENT WOOD, and KIM GERZ, )

)

Petitioners, )

)

vs. ) CASE NO. 88-3821RP

) STATE OF FLORIDA, MARINE FISHERIES ) COMMISSION, )

)

Respondent, )

and )

) FLORIDA CONSERVATION ASSOCIATION, )

)

Intervenor. )

)

FINAL ORDER

Pursuant to notice this cause came on for hearing on a Motion to Dismiss filed by the State of Florida, Marine Fisheries Commission, (MFC), whereby it seeks to dismiss the petition challenging its proposed rule which would amend existing rules relating to red drum or "redfish", contained in Chapter 46-22, Florida Administrative Code. The Petitioners, who are commercial fishermen or associations of commercial fishermen, sought an administrative determination of the invalidity of the proposed rule pursuant to Section 120.54(4), Florida Statutes. That section provides that such a petition must be filed within twenty-one days after publication of notice. The section also directs the agency to publish "notice of its intended action" prior to the adoption, amendment or repeal of any rule, which notice must be published in the Florida Administrative Weekly not less than twenty-eight days prior to the intended action.

The MFC published notice of its intended agency action, to adopt the proposed rule, on June 17, 1988 in the Florida Administrative Weekly. The notice included certain language which would amend the existing rules, providing that the proposed rule "would open the currently closed redfish fishery to specified levels of allowable recreational and commercial harvest" and indicated that a public hearing would be held on July 21, 1988. The intended agency action was additionally described in the notice as follows:

Be advised that the Marine Fisheries Commission will consider alternative language to the rule amendments proposed herein. The alternative language would delete allowance for harvest under the commercial vessel limit in proposed rule 46-22.005(3) and make other

conforming changes in the remainder of the proposed rule amendments. (Exhibit 1).

As a result of the deliberations and testimony taken at the public hearing conducted on July 21, 1988, the Commission adopted the alternative language referenced in the notice, quoted above, which had the effect of deleting the allowance for commercial harvest and sale of redfish.

In accordance with Section 120.54(11)(a), Florida Statutes, any changes to proposed rules, made as the result of information adduced at a final public hearing, do not require advance public notice. In fact, prior notice would be impossible since the nature of the changes is not known until the conclusion of the final public informational hearing, in instances, such as the case at hand, where a public hearing is had. Notice of any changes to a proposed rule must only be given to the Administrative Procedures Committee, and to those requesting it, seven days prior to filing the rules with the Secretary of State for adoption. The Petitioners were present at the July 21, 1988 hearing, but failed to request any notice of changes to the proposed rule. On August 3, 1988, the Petitioners filed a petition to determine the invalidity of the proposed rule.

Pursuant to Section 120.54(4)(b), Florida Statutes, challenges to proposed rules must be filed within twenty-one days after the publication of the notice required by Section 120.54(1), Florida Statutes. In the instant case the

twenty-one days from the publication of the notice in the Florida Administrative Weekly expired July 8, 1988. The Commission voted, at the conclusion of its July 21st hearing, to adopt the proposed changes (i.e. the "no sale" rule) by a vote of 4-2, thereafter notifying the Committee of the changes by letter of August 4, 1988, and publishing notice of the changes in the Florida Administrative Weekly issue of August 12, 1988.

The Petitioners maintain, of course, that the Commission on July 21, 1988, determined to adopt a substantially different rule from the one proposed in the notice in the Florida Administrative Weekly published on June 17, 1988. They maintain that this "new proposed rule" became "intended action" of the Commission no sooner than July 21, 1988, and has never been officially published as the Commission's "intention to adopt." Rather, it was only published as notice of changes to the proposed rule originally noticed on June 17th. Thus, the Petitioners claim that their time did not truly begin running until the proposed changes, which they maintain constituted a "new proposed rule," were published on August 12, 1988. They argue that by the "doctrine of relation- back," the petition filed August 3rd is a timely petition attacking the invalidity of the "new proposed rule" noticed on August 12th and, by the motion to amend the petition, seek to have the petition also deemed timely filed as an amended petition, with relation to the notice published August 12, 1988. The Petitioners' also assert that they did not file a challenge within twenty-one days of the June 17th notice of the proposed rule because at that time they felt the language proposed was not obnoxious to their interests, but only became so after the changes adopted on July 21st.

The above-quoted alternative language, which was included in the notice published on June 17th, however, sufficiently placed the Petitioners on notice that the Commission intended to consider alternative language which would delete allowance for a commercial harvest of redfish, directly involving their economic interests as commercial fishermen. It is concluded that the notice, and its language, sufficiently apprised the Petitioners of the agency's intent, in its rule promulgation process, so as to inform them that their clear point of entry

into that process had arrived. Thus the jurisdictional twenty-one day time period for filing a challenge to the proposed rule, which they were reasonably on notice might not be promulgated in a manner to suit their interests, commenced on June 17, 1988. Filing within that twenty-one day period is jurisdictional, with the failure to file a Section 120.54(4) petition within that period being grounds for dismissal based upon lack of jurisdiction. State Department of Health and Rehabilitative Services vs. Alice P., 367 So.2d 1045 1053 (Fla. 1st DCA 1979).

It is not fatal to the validity of a proposed and later enacted rule (and the twenty-one day jurisdictional time limit is not tolled) merely because the rule, as subsequently adopted, varies in its language and substance from that placed in the publication of the notice. In fact, in Section 120.54, the Legislature envisioned that specific language proposed in the initial notice of intended agency action is subject to amendment in the adoption and promulgation process. In fact, the rule- making process is tailored so as to encourage public participation in formulating the ultimately adopted rule or rules and to allow persons affected by the rule-making process to provide information to the agency and to effect changes to rules initially proposed by the agency. There are several procedures available to provide such information from affected persons or entities to the agency. Comments and materials may be submitted by an affected person to the agency within twenty-one days after the initial publication. Additionally, Section 120.54(3), Florida Statutes allows an opportunity for affected persons to request a public informational hearing to allow the presentation of "evidence and argument on all issues under consideration appropriate to inform [the agency] of their contentions." See Section 102.54(3)(a), Florida Statutes.

On July 21, 1988 the Commission held a public informational hearing to discuss the intended agency action pursuant to Section 120.54(3), Florida Statutes, which requires the agency to consider any material pertinent to the issues under consideration submitted to it within twenty-one days after the date of publication of notice or which is submitted at a public hearing. The purpose of this participatory process is to provide an opportunity to effect changes to the proposed rule language. Such changes are contemplated by the language in Section 120.54(13)(b), Florida Statutes which provides:

The agency may withdraw the rule in whole or in part or may make such changes in the rule as are supported by the record of public hearings held on the rule, technical changes which do not affect the substance of the rule, changes in response to written material relating to the rule received by the agency within twenty-one days after the notice and made a part of the record of the proceeding, or changes in response to a proposed objection by the Committee [Administrative Procedures Committee].

Although recognizing the potential for changes to proposed rules and specifically providing opportunities for affected persons to initiate changes, the statute still does not afford any additional opportunity for substantially affected persons to challenge the validity of a proposed rule, under Section 120.54(4), beyond the twenty-one day period allowed from the initial publication of notice. To the contrary, as long as the affected person has had a right to be heard at the Section 120.54(3) hearing, and the agency has met its obligation

to listen and inform itself through that public informational hearing process, there is no additional right, beyond that time period, to challenge a proposed rule after its language has been changed based upon that public hearing, information-gathering process.

Rulemaking often requires an agency to conduct multiple information- gathering hearings. Portions of a rule may be discussed, changed, and adopted in changed form at the conclusion of each such public hearing. The action by the agency resulting from each such hearing does not create a new point of entry to challenge the proposed rule, as changed, after each such public hearing. The rule-making provisions in Section 120.54, Florida Statutes are designed to balance administrative efficiency in the rule-making process, with opportunity to affected persons for participation. Chapter 120 thus provides a single opportunity to initiate a challenge to a proposed rule. This encourages affected persons to become involved in the rule-making process at an early stage. Even if an affected person fails to request a 120.54(4) determination of validity within the twenty-one day "point of entry" period, that person may still participate in the rule-making process, and seek to influence the substance of the proposed rule, through the public hearing process. The proceeding then must continue to final adoption, if a timely petition challenging the validity of the proposed rule has not been filed within twenty- one days from publication of the original notice of the proposed rule. After adoption, however, the challenger may of course avail himself or herself of a Section 120.56 challenge to the adopted rule. As observed by the First District Court of Appeal, "the dismissal of a petition pursuant to F.S., 102.54(4) for failure to comply with the statutory jurisdictional requirement is not fatal to any rights of the challenger as to the proposed rule after its adoption, because such dismissal for lack of jurisdiction has no effect upon the availability of a rule challenge pursuant to F.S., 120.56 after the rule has been adopted." See Department of HRS v. Alice P, supra at 1053.

Thus it is that changes made to a proposed rule through the public hearing process do not create an additional twenty-one day point of entry in which to file a Section 120.54 rule challenge. If the changes raise new questions as to the validity of the exercise of delegated legislative authority, the Committee may respond pursuant to Section 120.545, Florida Statutes with its objections and, aside from that, affected parties may file a Section 120.56 rule challenge after final adoption, in which any issue which could have been raised under Section 120.54 may be raised.

Thus, it is concluded that the failure to file a valid petition within the twenty-one day jurisdictional time period following the publication of the notice of the rule, as originally proposed, necessitates dismissal on authority of the Alice P decision, as well as Humana of Florida v HRS, 500 So.2d 186, 188 (Fla. 1st DCA 1986); All Risk Corporation v Department of Labor, 413 So.2d 1200, 1202, (Fla. 1st DCA 1982); Jack Rudloe, et. al., v Florida Department of Environmental Regulation, et. al., 12 Fl.W 2900 (1st DCA 1987). CF.RHPC, Inc., v HP, 509 So.2d 1267, 1268 (Fla. 1st DCA 1987).

Parenthetically, it is concluded that the Respondent's argument that the subject challenge is precluded because of "estoppe by judgment," because the rules at issue and the issues involved in this proceeding are allegedly identical to those at issue in State, MSC v Organized Fishermen of Florida, 503 So.2d 935, the so-called "Redfish I" case is inapposite. The rule here at issue is a different rule, the factual and legal issues involving the justification of the proposed rule have not been shown to be the same as those involved in the Redfish I case. In any event, no proof has yet been adduced to enable the

Hearing Officer to decide whether the issues of fact and of law are precisely the same as those involved in the earlier case. Thus, although the petition is hereby dismissed, the argument that it should be dismissed based upon the principle of estoppel by judgment, is rejected.

Accordingly, in view of the above findings and considerations, it is, therefore

ORDERED:

That the petition of Organized Fisherman of Florida, Southeastern Fisheries Association, Inc., Lee County Fisherman's Cooperative, Inc., Goodrich Seafood, Clint Wood, and Kim Kerz, be and the same is hereby dismissed.

DONE AND ORDERED this 14th day of September, 1988, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1988.

COPIES FURNISHED:

Kenneth G. Oertel, Esquire OERTEL & HOFFMAN, P.A.

Post Office Box 6507 Tallahassee, Florida 32314-6507

Thomas G. Tomasello, Esquire General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399

Philip S. Parsons, Esquire Cindy L. Bartin, Esquire Landers and Parsons

Post Office Box 271 Tallahassee, Florida 32302

Jonathan A. Glogau, Esquire Assistant Attorney General Special Projects Section 111-36 S. Magnolia Drive Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Docket for Case No: 88-003821RP

Orders for Case No: 88-003821RP