STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
KENNETH LEVY, )
)
Petitioner, )
)
vs. ) CASE NO. 94-2766RX
) BOARD OF TRUSTEES OF THE ) INTERNAL IMPROVEMENT TRUST ) FUND and DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )
)
Respondents. )
)
FINAL ORDER
Pursuant to notice, final hearing in the above-styled case was held in Tallahassee, Florida, on June 9, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Petitioner: Richard A. Lotspeich
Landers & Parsons Post Office Box 271
Tallahassee, Florida 32302
For Respondent: L. Kathryn Funchess
Assistant General Counsel
Department of Environmental Protection 2600 Blair Stone Road, Mail Station 35 Tallahassee, Florida 32399-2400
STATEMENT OF THE ISSUE
The issue in this case is whether Rule 18-20.004(5)(a)1, Florida Administrative Code, is an invalid exercise of delegated legislative authority.
PRELIMINARY STATEMENT
By Petition for Administrative Determination of Invalidity of Existing Rules filed May 18, 1994, Petitioner alleged that Rule 18-20.004(5)(a)1 is an invalid exercise of delegated legislative authority.
The petition alleges that the rule's prohibition against the construction of docks over 500 feet long enlarges, modifies, and contravenes Sections 258.42(e)(1) and 258.44, Florida Statutes. Section 258.42(e)(1) allows the construction of private residential docks for reasonable ingress and egress for riparian owners. Section 258.44 provides that the management of a preserve
shall not infringe upon the traditional riparian rights of upland property owners adjacent to the preserve, including specifically "reasonable improvements for ingress and egress."
The petition alleges that the rule's prohibition against the construction of docks over 500 feet long is arbitrary and capricious.
At the hearing, Petitioner called two witnesses, and Respondent called three witnesses. The parties jointly offered into evidence five exhibits, which were all admitted.
The transcript was filed June 28, 1994. Each party filed a proposed final order, and rulings on the proposed findings are in the appendix.
FINDINGS OF FACT
1. Rule 18-20.004(5)(a)1 provides:
All docking facilities, whether for private residential single-family docks, private residential multi-slip docks, or commercial, industrial, or other revenue generating/income-related docks or public docks or piers, shall be subject to the following standards and criteria:
no dock shall extend waterward of the mean or ordinary high water line more than
500 feet or 20 percent of the width of the waterbody at that particular location whichever is less;
* * *
Pursuant to stipulation, Petitioner has standing, a dock, and upland access to his property. The parties also stipulated that Petitioner's dock is limited by the 500-foot criterion, as the proposed dock extension would not exceed 20 percent of the width of the waterbody.
Petitioner's upland property consists of a single family residence and is located adjacent to sovereign submerged lands located in the Gasparilla Island/Charlotte Harbor Aquatic Preserve. He has lawfully constructed a dock extending about 500 feet from the mean high water mark and into the waters of Charlotte Harbor. The consent of use granted Petitioner acknowledges the relative shallowness of the water adjacent to his property and correspondingly limits the draft of vessels to be moored to the dock.
At mean low tide, the depth of the water at the end of Petitioner's dock is about two feet. Petitioner requested authorization to extend his dock waterward another 100 feet. On December 15, 1993, Respondents denied the request, in reliance upon the challenged rule and Section 258.42(3)(e)1, which allows the erection in an aquatic preserve of private residential docks for "reasonable ingress and egress of riparian owners." In a separate administrative proceeding, DOAH Case No. 94-2140, Petitioner is contesting the denial of his request to extend the dock.
No single family docks in aquatic preserves extend over 500 feet into the water. In Charlotte Harbor, the average length of a single-family residential dock is 200 feet. Nearby Petitioner's dock is a 600-foot long public fishing pier, which was constructed before the subject 500-foot rule was promulgated.
From mean high water waterward, the first habitat surrounding Petitioner's dock is an intertidal sand flat that extends about 100-150 waterward from shore. The next habitat is mostly unvegetated submerged bottom with patches of submerged aquatic vegetation that extends from the end of the intertidal sand flat to about 350-400 feet from shore. The vegetation of the latter habitat is mostly Cuban shoal grass, which occurs in no more than four patches of about 50 square feet, in an area measuring 25 feet in both directions from the dock. Last, extending from 350-400 feet waterward to the end of the dock, is a largely unvegetated area with sporadic pieces of attached algae.
Unvegetated bottoms play no role in the propagation of fish or wildlife. The biological or scientific value of unvegetated bottoms is unaffected by a dock, although there is some evidence that toxic substances may leach from the construction materials and adversely impact nearby vegetation.
However, the dredging caused by boat propellers scouring any form of submerged bottom suspends sediment that can be carried to areas of vegetated bottom, where the increase in turbidity may reduce the penetration of sunlight and thereby harm the aquatic vegetation. In the vicinity of Petitioner's dock, though, there is no evidence of significant prop dredging from recreational boating. The absence of submerged vegetation is more likely a feature of the high-energy shoreline where wave energy disrupts sediments and provides unsuitable habitat.
In promulgating the predecessor to Rule 18- 20.004(5)(a)1, the Board of Trustees of the Internal Improvement Trust Fund attempted to balance interests that sometimes are competing, such as environmental, aesthetic, recreational, and private commercial. There was some concern that previously authorized docks in sovereign submerged lands had infringed upon the riparian access of adjacent upland owners. The 500-foot limitation was not in the original rule, which was promulgated in 1981, but was added by an amendment in 1985.
The Board of Trustees of the Internal Improvement Trust Fund tried to set thresholds that would not result in the denial of more than a negligible number of dock applications, based on historic dock application data and predominant vessel lengths of under 27 feet.
However, the record does not explain how the Board of Trustees of the Internal Improvement Trust Fund analyzed the above-described data so as to arrive at the 500-foot limitation now under challenge. Without providing more detail concerning the data and analysis, it is possible that a limitation of 100 feet or 900 feet would have satisfied the considerations stated in the preceding paragraph.
Shallow water predominates in the aquatic preserves, and Board of Trustees of the Internal Improvement Trust Fund realized that a dock extending no more than 500 feet might not reach water depths that are readily navigable. The Board of Trustees of the Internal Improvement Trust Fund could not rationally adopt a rule to ensure minimum water depths for all docks, and chose the 500-foot limitation evidently to provide an easy-to-administer standard.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Sections 120.56 and 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
The relevant provisions governing determinations of the validity of rules are in Section 120.52(8), which provides:
(8) "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:
* * *
(c) The rule enlarges, modifies, or contravenes the specific provisions of implemented . . .;
* * *
(e) The rule is arbitrary or capricious.
The burden of proof is on Petitioner. Agrico Chemical Co. v. Department of Environmental Regulation, 365 So. 2d 759 (Fla. 1st DCA 1979).
Section 258.43(1) authorizes the Board of Trustees of the Internal Improvement Trust Fund to adopt and enforce reasonable rules and regulations to carry out the provisions of this act and specifically to provide regulation of human activity within the preserve in such a manner as not to unreasonably interfere with lawful and traditional public uses of the preserve, such as sport and commercial fishing, boating, and swimming.
Section 258.42(3)(e)1 states:
There shall be no erection of structures within the preserve, except:
Private residential docks may be approved for reasonable ingress or egress of riparian owners.
* * *
Section 258.44 adds:
Neither the establishment nor the management of the aquatic preserves under the provisions of this act shall operate to infringe upon the traditional riparian rights of upland property owners adjacent to or within the preserves. Reasonable improvement for ingress and egress . . . may be permitted by the trustees subject to the provisions of
any other applicable laws under the jurisdiction of other agencies.
Section 258.42(3)(e)1 and the second sentence of Section 258.44 permit, but do not require, the Board of Trustees of the Internal Improvement Trust Fund to allow construction of docks in state preserves to facilitate access. This feature of these statutes makes it harder for Petitioner to show that the subject rule enlarges, modify, or contravenes such permissive statutory provisions. In fact, Petitioner has failed to show how the rule offends these statutory provisions.
The first sentence of Section 258.44 prohibits the Board of Trustees of the Internal Improvement Trust Fund from managing the preserve in such a way as "to infringe upon the traditional riparian rights of upland property owners adjacent to or within the preserves." Neither the factual record of this case nor the law defines the traditional riparian rights of upland owners so as to include the right to extend docks over 500 feet through sovereign submerged lands. Thus, the rule does not enlarge, modify, or contravene the first sentence of Section 258.
The real question in this case is whether the 500-foot limit in Rule 18-20.004(5)(a)1 is arbitrary or capricious and, if so, whether the rule is an invalid exercise of delegated legislative authority. As stated in Agrico Chemical Co. v. Department of Environmental Regulation, 365 So. 2d 759, 763 (Fla. 1st DCA 1978),
A capricious action is one which is taken without thought or reason or irrationally.
An arbitrary decision is one not supported by facts or logic, or despotic.
The 500-foot limitation appears to have been the product of a process involving the thoughtful balancing of varying factors. Thus, Petitioner has failed to prove that the subject rule is capricious.
Despite the integrity of the process by which the 500- foot limitation was added to the rule, the choice of a 500-foot maximum dock length, beyond which the rule flatly prohibits authorization, is arbitrary.
There is no evidence of a relationship between the distance of 500 feet from the mean or ordinary high water line and the protection of biological functions; based on the record, it is as likely that biological functions may require docks of no more than 20 feet or possible 1000 feet. There is no evidence of a relationship between the distance of 500 feet from the mean or ordinary high water line and navigational or aesthetic functions. The role of the 500-foot limitation, in protecting the integrity of state aquatic preserves, is based neither on facts in the record nor, after consideration of the factual record, on logic.
Rules of the Board of Trustees of the Internal Improvement Trust Fund are subject to rule challenges. In Board of Trustees of the Internal Improvement Trust Fund v. Lost Tree Village Corporation, 600 So. 2d 1240 (Fla. 1st DCA 1992), the Board of Trustees of the Internal Improvement Trust Fund adopted a moratorium on applications for the use of sovereign submerged land adjacent to unbridged, undeveloped coastal barrier islands. The issue was whether the moratorium was a rule within the meaning of Chapter 120, Florida Statutes. The hearing officer determined that the moratorium was an invalid rule. The court reversed, but only after determining that the Board of Trustees of the Internal Improvement Trust Fund did not act arbitrarily in adopting the moratorium.
In reaching its decision, the Lost Tree court noted that the Board of Trustees of the Internal Improvement Trust Fund is an "agency" within the meaning of Section 120.52(1). Reciting Article X, section 11, of the Florida Constitution (1970), the court acknowledged that sovereign submerged land is held in trust for the people of Florida, but that private use of such land is permissible when authorized by law. The court concluded: "As an administrative body not specifically created in the Florida Constitution, the Board is a statutory entity and derives only those powers specified therein." 600 So. 2d at 1243.
ORDER
Based on the foregoing, it is hereby
ORDERED that Rule 18-20.004(5)(a)1 is an invalid exercise of delegated legislative authority because its 500-foot limitation on dock length is arbitrary.
ENTERED on July 28, 1994, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings on July 28, 1994.
APPENDIX
Treatment Accorded Proposed Findings of Petitioner 1-2: rejected as not findings of fact.
3-13: adopted or adopted in substance. 14-15: rejected as subordinate.
16-22 (first sentence): adopted or adopted in substance.
22 (second sentence): rejected as unsupported by the appropriate weight of the evidence.
22 (third sentence): adopted or adopted in substance. 23-24: rejected as unnecessary.
Treatment Accorded Proposed Findings of Respondent 1: adopted or adopted in substance.
2-5: rejected as not findings of fact.
6-9: rejected as subordinate and not findings of fact. 10-12: rejected as irrelevant.
13-30: adopted or adopted in substance. 31-33: rejected as irrelevant.
34-37: adopted or adopted in substance, but, despite the attempt, the 500- foot limit is arbitrary.
COPIES FURNISHED:
Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, FL 32399-2400
Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, FL 32399-2400
Richard A. Lotspeich Landers & Parsons
P.O. Box 271 Tallahassee, FL 32302
L. Kathryn Funchess Assistant General Counsel
Department of Environmental Protection Mail Station 35
2600 Blair Stone Rd. Tallahassee, FL 32399-2400
Carroll Webb, Executive Director Administrative Procedures Committee
120 Holland Bldg. Tallahassee, FL 32399-1300
Liz Cloud, Chief
Bureau of Administrative Code Department of State
The Elliott Bldg. Tallahassee, FL 32399-0250
NOTICE OF RIGHT TO JUDICIAL REVIEW
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 ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND 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.
=================================================================
DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
BOARD OF TRUSTEES OF THE NOT FINAL UNTIL TIME EXPIRE TO INTERNAL IMPROVEMENT TRUST FILE MOTION FOR REHEARING AND FUND and FLORIDA DISPOSITION THEREOF IF FILED. DEPARTMENT OF ENVIRONMENTAL
PROTECTION, CASE NO. 94-2764
DOAH CASE NO. 94-2766RX
Appellants,
v.
KENNETH LEVY,
Appellee.
/ Opinion filed June 27, 1995.
An appeal from an order of the Division of Administrative Hearings.
L. Kathryn Funchess, Assistant General Counsel, Department of Environmental Protection, Tallahassee, for Appellant.
Richard A. Lotspeich and John T. Lavia, III of Landers & Parson, Tallahassee, for Appellee.
SMITH, Senior Judge.
In this appeal, the Board of Trustees of the Internal Improvement Trust Fund and the Florida Department of Environmental Protection seek reversal of a final order of the Division of Administrative Hearings declaring a rule promulgated by the Trustees to be arbitrary and, thus, void as an unlawful exercise of delegated legislative authority. We find error and reverse.
This rule challenge was filed by Dr. Levy, appellee, in response to the decision of the Division of State Lands, acting as staff for the Trustees, denying Dr. Levy's request to extend his existing 500-foot dock to approximately 600 feet in order to reach greater water depth. The parties stipulated below that Levy had standing to challenge the rule and that he currently has upland access to his property, which consists of a single-family residence adjacent to the sovereign submerged lands of the Gasparilla- Charlotte Harbor Aquatic Preserve.
The denial of Levy's request for the dock extension was based upon Florida Administrative Code rule 18-201.004(5)(a)1. (1994), which in essence provides
that all docking facilities, whether for private residences, commercial, industrial or public, must comply with certain standards and criteria, the first being that no dock "shall extend waterward of the mean or ordinary high water mark more than 500 feet or 20 percent of the width of the water body at that particular location whichever is less . . . ." The rule implements, in part, the provisions of chapter 258, Florida Statutes, more particularly, subsections 258.42(3)(a) and (e), which read as follows:
258.42. Maintenance of Preserves.
The Board of Trustees of the Internal Improvement
Fund shall maintain such aquatic preserves subject the following provisions:
(3)(a) No further dredging or filling of submerged lands shall be approved by the trustees except the
following activities may be authorized pursuant to a permit:
There shall be no erection of structures within the preserve, except:
Private residential docks may be approved for reasonable ingress or egress of riparian owners.
(Emphasis supplied.)
Following an evidentiary hearing before a hearing officer of the Division of Administrative Hearings, an order was entered declaring the rule void as an invalid exercise of delegated legislative authority because the 500-foot limitation prescribed in the rule is arbitrary. 1/ This appeal followed.
Preliminarily, we observe that the parties are in agreement as to certain fundamental matters of law. The appellee concedes the power and authority of the state, acting through the Board of Trustees of the Internal Improvement Trust Fund, to prohibit altogether the construction of docks or other structures waterward of the mean or ordinary high water line within aquatic preserves.
This authority is based, in part, upon the adoption in Florida of the "Public Trust Doctrine," a principle derived from the English common law, incorporated into the organic law of this state pursuant to a constitutional amendment in 1970, followed by legislative action authorizing private use of portions of sovereignty lands under navigable waters when not contrary to the public interest. See Haves v. Bowman, 91 So.2d 795 (Fla. 1957); Yonae v. Askew, 293 So.2d 395 (Fla. 1st DCA 1974); Graham v. Edwards, 472 So.2d 803 (Fla. 3d DCA 1985), rev. denied, 482 So.2d 348 (Fla. 1986); Kreiter v. Chiles, 595 So.2d 111 (Fla. 3d DCA 1992), rev. denied, 601 So.2d 552 (Fla.1992) , cert. denied, 113 S.Ct. 325 (1992)
The "Public Trust Doctrine" is embodied in the following language found in Article X of the Florida Constitution:
Sec. 11. Sovereignty lands.
The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale
of such lands may be authorized by law, but only
when in the public interest. Private use of portions of such lands may be authorized
by law, but only when not contrary to the public interest.
In addition to the provisions of section 258.42(3)(a) and (e) quoted above, we find pertinent a further provision found in section 258.44, which reads as follows:
258.44. Effect of Preserves.
Neither the establishment nor the management of the aquatic preserves under the provisions of this act shall operate to infringe upon the traditional riparian rights of upland property owners
adjacent to or within the preserves. Reasonable improvement for ingress and egress, mosquito control, shore protection, public utility expansion, surface water drainage, installation and maintenance of oil and gas transportation facilities, and similar purposes may be permitted by the trustees, subject to the provisions of any other applicable laws
under the jurisdiction of other agencies. (Emphasis supplied.)
The parties are also in agreement that while the Trustees may, but are not required, to permit the construction of docks, the Trustees also have the authority, once docks are permitted, to prescribe standards and criteria governing their construction; and further, that the Trustees are specifically mandated by statute to adopt and enforce reasonable rules and regulations to carry out the purposes of chapter 258. The rulemaking authority of the Trustees, so far as pertinent here, is stated in section 258.43(1), Florida Statutes, as follows:
Rules and Regulations.
The Board of Trustees of the Internal Improvement Trust Fund shall adopt and enforce reasonable rules and regulations to carry out the provisions of this act and specifically to provide regulation of human activity within the preserve in such a manner as not to unreasonably interfere with lawful and traditional public uses of the preserve, such as support and commercial fishing, boating, and swimming.
Upon our review of the order entered by the Hearing Officer, we observe that he accurately comprehended the import of the above constitutional and statutory provisions, as indicated by his conclusions of law found in the order. In paragraph 19 of his order, the hearing officer found that section 258.43(3)(e) l and the second sentence of section 258.44 (above quoted), "permit, but do not require" the trustees to allow construction of docks in state preserves to facilitate access. The hearing officer found that appellee had failed to show that the subject rule enlarges, modifies, or contravenes these permissive statutory provisions, and consequently, "has failed to show how the rule offends these statutory provisions." Further, in paragraph 20, the hearing officer found that while the first sentence of section 258.44 prohibits the Trustees from managing the preserve in such a way as to infringe upon the
traditional riparian rights of upland property owners adjacent to or within the preserve, "[n]either the factual record of this case nor the law defines the traditional riparian rights of upland owners so as to include the right to extend docks over 500 feet through sovereign submerged lands." Thus, the hearing officer concluded, the rule does not enlarge, modify, or contravene the first sentence of section 258.44.
Next, turning to what the hearing officer found to be the "real question," he inquired whether the rule was arbitrary or capricious, and therefore invalid. Again we find that the hearing officer accurately analyzed the evidence and correctly applied the law in his conclusion that the rule under attack had not been proven to be capricious. Referring to our decision in Agrico Chemical Co.
v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978), the hearing officer noted: "A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic." Applying this definition to the facts, the hearing officer concluded: "The 500-foot limitation appears to have been the product of a process involving the thoughtful balancing of varying factors. Thus, petitioner has failed to prove that the subject rule is capricious."
Notwithstanding our agreement with the hearing officer's findings and conclusions to the extent above recited, we find ourselves in disagreement with his remaining conclusions of law. In paragraphs 23 and 24 of his order, the hearing officer found:
Despite the integrity of the process by which the 500-foot limitation was added to the rule, the choice of a 500-foot maximum dock length, beyond which the rule flatly prohibits authorization, is arbitrary.
There is no evidence of a relationship between the distance of 500 feet from the mean or ordinary high water line and the protection of biological functions; based on the record it is as likely that biological functions may require docks of no more than 20 feet or possible [sic] 1,000 feet. There is no evidence of a relationship between the distance of 500 feet from the mean or ordinary high water line and navigational or aesthetic functions. The role of the 500-foot limitation, in protecting the integrity of state aquatic preserves, is based neither on facts in the record nor, after consideration of the factual record, on logic.
We are of the view that the hearing officer erroneously applied the law to the facts in determining that the Trustees' rule was arbitrary, and that his conclusion of invalidity in this respect is inconsistent with other express findings contained in the order, and is contrary to the evidence of record in this proceeding.
First, the hearing officer improperly shifted the burden of proof from the challenger to the Trustees in declaring the rule arbitrary because of the absence of evidence of a "relationship" between a distance of 500 feet from the
mean high water line and the protection of biological, navigational or aesthetic interests. 2/ The burden of proving abuse of agency discretion is upon the challenger of the rule, who must meet that burden with a preponderance of the evidence. Agrico Chemical Co. v. State Dept. of Environmental Regulation, 365 So.2d 759, 762 (Fla. 1st DCA 1978); Dravo Basic Materials Co., Inc. v. State, Dept. of Transportation, 602 So.2d 632 (Fla. 2d DCA 1992). Thus, the issue before the hearing officer was whether the preponderance of the evidence demonstrated that the trustees could not reasonably have found a relationship between the length of docks as established by the Trustees and the interests sought to be protected by the rule. The rule challenger having failed to make such a showing, the hearing officer should have denied the petition.
Secondly, a logical and reasonable basis for the maximum dock length is found in the evidence of record as recited in the order under review. The hearing officer found, in part, that no single-family docks in aquatic preserves extend over 500 feet into the water. Further, in Charlotte Harbor, the average length of a single-family residential dock is 200 feet. In promulgating the predecessor to the rule in question, originally adopted in 1981, the trustees attempted to balance competing interests such as environmental, aesthetic, recreational, and private commercial. There was some concern that previously authorized docks had infringed upon the riparian access of adjacent upland owners. The 500-foot limitation was added to the rule by amendment in 1985. In setting the criteria for dock length, the hearing officer found, the trustees attempted to set a limit that would not result in the denial of more than a negligible number of dock applications, based on historic dock application data and predominant vessel lengths of under 27 feet. Indeed, as the hearing officer found in deciding that the rule was not capricious: "The 500-foot limitation appears to have been the product of a process involving the thoughtful balancing of varying factors." In our view, these findings of fact contained in the order under review are inconsistent with the conclusion that the rule is arbitrary.
To the contrary, we view these findings as ample to show that the trustee's decision was a reasoned one, supported by facts and logic, and that their decision could in no sense be labeled "despotic." Agrico, 365 So.2d at 763.
Finally, the order under review reflects, at least implicitly, a disregard for the principles of presumption of correctness and deference due to the acts of the Trustees. If an agency's interpretation of its governing statutes is one of several permissible interpretations, it must be upheld, despite the existence of reasonable alternatives. Department of Health & Rehab. Services v. Framat Realty Inc., 407 So.2d 238, 242 (Fla. 1st DCA 1981). Historically, the rule of deference to the actions of public officials has been strongly expressed with respect to the actions of the Trustees in their stewardship of sovereign lands under navigable waters, as in Hayes v. Bowman, supra, in which the court stated:
It appears to us that our position is strengthened when we take note of the fact that the Trustees of the Internal Improvement Fund are five, (now seven), constitutional
officers of the executive branch of government. If we are ever to apply the rule that public officials will be presumed to do their duty,
it would appear to us to be most appropriate in this instance. Certainly we are not to assume that in the supervision and disposition of submerged lands the Trustees will
knowingly ignore the rights of upland owners. It is assumed that they will give due regard
to private rights as well as public rights. The Board would appear to be the most appropriate repository of the responsibility to be exercised in these matters in the first instance. The exercise of their judgment should not be subjected to adverse judicial scrutiny absent a clear showing of abuse
of discretion or violation of law. ...
91 So.2d at 802.
The issue before the hearing officer in this case was not whether the Trustees made the best choice in limiting the lengths of docks within the preserve, or whether their choice is one that the appellee finds desirable for his particular location. The issue is whether the Trustees made a choice based upon facts, logic and reason. It is clear that they did.
The order appealed is REVERSED. BARFIELD and ALLEN, JJ., CONCUR.
ENDNOTES
1/ A rule is invalid as an unlawful exercise of delegated legislative authority if, among other things, it is arbitrary or capricious. Section 120.52(8)(e) , Florida Statutes (1993).
2/ In paragraph 11, the hearing officer found that "the record does not explain" how the Trustees analyzed data obtained by them prior to the establishment of the 500-foot limitation, and that without "providing more detail," it is "possible" that a limitation of 100 feet or 900 feet would have satisfied the interest sought to be protected by the Trustees.
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT
To the Honorable, Robert E. Meale, Hearing Officer
Division of Administrative Hearing WHEREAS, in that certain cause filed in this court styled
KENNETH LEVY
vs.
Case No. 94-2764
BOARD OF TRUSTEES OF THE Your Case No. 94-2766RX INTERNAL IMPROVEMENT TRUST
FUND and DEPARTMENT OF ENVIRONMENTAL PROTECTION
The attached opinion was rendered on June 27, 1995
YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.
WITNESS the Honorable E. Earle Zehmer
Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 23rd day of August, 1995
Jon S. Wheeler
Clerk, District Court of Appeal of Florida, First District
| Issue Date | Proceedings |
|---|---|
| Aug. 28, 1995 | Opinion and Mandate filed. |
| Jul. 03, 1995 | First DCA Opinion filed. |
| Dec. 19, 1994 | Payment in the amount of $36.00 for indexing filed. |
| Dec. 14, 1994 | Index, Record, Certificate of Record sent out. |
| Nov. 07, 1994 | BY ORDER OF THE COURT filed. |
| Oct. 20, 1994 | Index & Statement of Service sent out. |
| Aug. 31, 1994 | Letter to DOAH from DCA filed. DCA Case No. 1-94-2764. |
| Aug. 29, 1994 | Certificate of Notice of Appeal filed. |
| Aug. 26, 1994 | Notice of Appeal sent out. |
| Jul. 28, 1994 | CASE CLOSED. Final Order sent out. Hearing held 6-9-94. |
| Jul. 25, 1994 | (DEP) Proposed Final Order filed. |
| Jul. 25, 1994 | Petitioner's Proposed Final Order filed. |
| Jul. 05, 1994 | Order sent out. (motion granted) |
| Jun. 28, 1994 | Transcript filed. |
| Jun. 27, 1994 | (Respondent) Stipulated Motion for Extension of Time to File Proposed Final Orders filed. |
| Jun. 09, 1994 | CASE STATUS: Hearing Held. |
| Jun. 06, 1994 | (DEP) Notice of Response to Petitioner's First Interrogatories filed. |
| Jun. 03, 1994 | Subpoena Duces Tecum w/The Requested Documents to Be Produce Are As Follows filed. (From L. Kathryn Funchess) |
| May 31, 1994 | (Respondent) Motion for Expedited Discovery filed. |
| May 26, 1994 | Notice of Service of Respondents First Interrogatories To Petitioner,Kenneth Levy filed. |
| May 24, 1994 | Notice of Hearing sent out. (hearing set for 6/9-10/94; at 9:00am; in Ft. Myers) |
| May 20, 1994 | Order of Assignment sent out. |
| May 19, 1994 | Letter to Liz Cloud & Carroll Webb from Marguerite Lockard w/cc: Agency General Counsel sent out. |
| May 18, 1994 | Petition for Administrative Determination of Invalidity of Existing Rules filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 27, 1995 | Opinion | |
| Jul. 28, 1994 | DOAH Final Order | Rule 18-20.04(5)(a)1 is invalid as its 500-foot limit on docks in aquatic preserves is arbitrary. |
