STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM E. SHULER, )

)

Petitioner, )

)

vs. )

)

THE CANAL AUTHORITY OF THE ) CASE NO. 91-3554 STATE OF FLORIDA, )

)

Respondent, )

)

and )

) OCALA FLYING MODEL CLUB, INC.,)

)

Intervenor. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came before the undersigned on respondent's motion to dismiss or alternative motion for judgment on the pleadings. The issue raised by the motion is whether petitioner, William E. Shuler, has standing to contest respondent's lease of certain state lands to intervenor, Ocala Flying Model Club, Inc.

This matter began on May 25, 1991, when Shuler, a resident of Ocala, Florida, filed a letter requesting a hearing to contest a recreational lease between respondent and intervenor of certain state lands located in Marion County, Florida. According to the letter, which was treated by respondent as an initial pleading under Rule 22I-6.004, Florida Administrative Code, the lease "denied (Shuler) (his) lawful right of the use of and access to public property". 1/ On June 19, 1991, respondent filed a motion to dismiss or alternative motion for judgment on the pleadings in which it contended that Shuler lacked standing to initiate this action. By order entered on July 3, 1991, Shuler was granted an extension of time in which to file his response to the motion. By order dated July 19, 1991, Shuler was granted a second extension of time to and including August 8, 1991, in which to file his response. To date, no response to the motion has been submitted. 2/ Accordingly, the undersigned will rule on the motion based on the pleadings filed in this cause.

There are no allegations in the initial pleading that petitioner has a property interest in the subject site nor that petitioner owns land that would be adversely affected by the proposed lease. Further, petitioner is not a specifically named person whose substantial interests are being determined, and no constitutional right, statutory provision or agency rule provides for his entitlement to a hearing. Thus, in order to demonstrate access to a section

120.57 hearing, Shuler must show that his substantial interests will be affected by the agency action. In this regard, petitioner alleges that the recreational lease denies him his lawful right of the use of and access to public property.

In determining whether Shuler's substantial interests will be affected by the agency action, the following language in Florida Society of Ophthalmology v. State Board of Optometry, 532 So.2d 1279, 1284 (Fla. 1st DCA 1988) is helpful:

We initially observe that not everyone having an interest in the outcome of a particular dispute over an agency's interpretation of the law submitted to its charge, or the agency's application of that law in determining the rights and interests of members of the government or the public, is entitled to participate as a party in an administrative proceeding to resolve that dispute. Were that not so, each interested citizen could, merely by expressing an interest, participate in the agency's efforts to govern, a result that would unquestionably impede the ability of the agency to function efficiently and inevitably cause an increase in the number of litigated disputes well above the number that administrative and appellate judges are capable of handling.

Therefore, the legislature must define and the courts must enforce certain limits on the public's right to participate in administative proceedings. The concept of standing is nothing more than a selective method for restricting access to the adjudicative process, whether it be

administrative or purely judicial, by limiting the proceeding to actual disputes between persons whose rights and interests subject to protection by the statutes involved are immediately and substantially affected. Thus, it has been stated, the "purpose of the law of standing is to protect against improper plaintiffs". (Emphasis added)

The same court held that a person would lack standing if he failed to show that:

(his) substantial interest will be injuriously affected in any manner that differs from the interests of the public generally.

Id. at 1285.

Also relevant to this issue is the case of Grove Isle, Ltd. v. Bayshore Homeowner's Association, Inc., 418 So.2d 1046 (Fla. 1st DCA 1982). In that proceeding, the petitioners sought to challenge a determination by the Department of Natural Resources (DNR) that a marina development did not require a lease of sovereignty submerged lands. In affirming the dismissal of the petition on the ground the petitioners lacked standing, the court held as follows:

We affirm the appeal, reverse the cross appeal, and hold that the petitioners lack

standing to challenge DNR's decision that no lease was required. Petitioners have failed to show how their "substantial interests" will be "affected" by the DNR's decision that no lease is required. They, therefore, were not entitled to initiate Section 120.57 proceedings. . . Their petitions for administrative hearings allege that they will be adversely affected by the adverse consequences to Biscayne Bay which will be caused by the construction of the marina.

These allegations do not show how petitioners are "substantially affected" any more than the general public by DNR's decision not to require a lease for the marina. (Emphasis added)

Id. at 1047.

Accord: Greene v. Department of Natural Resources, 414 So.2d 251 (Fla. 1st DCA 1982) (petitioner who was not the owner, adjacent owner, or owner of any land on CARL list or land which allegedly should be on list did not have standing to contest the acquisition of land for the state environmentally endangered land purchase program).

Finally, in the case of Friends of the Everglades, Inc. v. Board of Trustees of the Internal Improvement Trust Fund and Department of Natural Resources, DOAH Case No. 90-3531 (Final Order March 13, 1991), the Cabinet, sitting as head of the Board of Trustees, and DNR affirmed a hearing officer's dismissal of a petition for hearing seeking to contest a lease of certain state land to the Department of Health and Rehabilitative Services on the ground petitioner lacked standing to initiate the matter. Among other things, the petitioner had claimed that its members lived near and used the property in question. In finding this allegation to be insufficient to convey standing, the Cabinet and DNR held that:

In order to establish standing in a case of this nature, the Petitioner must allege that its substantial interests will be injuriously affected in some manner that differs from the interests of the general public. The Petitioner has failed to allege any substantial interest different from that of the public in general and its has failed to identify any special injury to its interests different from any injury that might be borne by the rest of the public. Because of such failure, it lacks standing.

Id. at page 6.

In the case at bar, Shuler has likewise failed to allege that his interest in the proposed recreational lease of state lands differs from the interests of any other member of the public. Indeed, he alleges only that the recreational

lease will interfere with his right to use and enjoy the property. Moreover, he has failed to identify any special injury to his interests that differs from any injury that might be borne by the rest of the public. This being so, it is concluded that the motion to dismiss should be granted.

In reaching the above conclusion, the undersigned has considered Shuler's motion for stay of this proceeding until a rule challenge he previously filed on July 30, 1991, is concluded. Since Shuler has no standing to initiate this action, and thus no cause for a stay exists, the motion for stay is denied. On August 6, 1991, Shuler also filed a motion to amend in which he requested authority to amend his initial petition. However, he cited no reason for amending his petition nor the purpose or substance of such amendments.

Moreover, it appears that Shuler cannot demonstrate standing under any viable theory. The motion is accordingly denied. It is, therefore,

RECOMMENDED that a final order be entered dismissing, with prejudice, the petition for hearing filed by William E. Shuler.

DONE AND ENTERED this 27th day of August, 1991, in Tallahassee, Leon County, Florida.

Donald R. Alexander Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1991.

COPIES FURNISHED TO:

Tom Gardner, Executive Director

Canal Authority of the State of Florida Cedars Executive Center, Suite 234B 2639 North Monroe Street

Tallahassee, FL 32303

J. Terrell Williams, Esquire Department of Legal Affairs The Capitol, Suite 1501 Tallahassee, FL 32399-1050

Mr. William E. Shuler 3417 S. E. 12th Street Ocala, FL 32671

George A. Stelogeannis, Esquire

401 N. W. 1st Avenue Ocala, FL 32670

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which top submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-003554

Orders for Case No: 91-003554