STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

T.R.E.E.S. OF ST. AUGUSTINE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 97-0715

)

DEPARTMENT OF ENVIRONMENTAL ) PROTECTION and DAVID B. FLEEMAN, )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came before the undersigned on respondent David B. Fleeman's motion to dismiss the amended petition for administrative hearing on the ground petitioner,

T.R.E.E.S. of St. Augustine, Inc. (TREES), lacks standing to bring this action. A response in opposition to the motion has been filed by petitioner. For the following reasons, the motion is granted.

On or about February 3, 1997, TREES filed an amended petition for administrative hearing with respondent, Department of Environmental Protection (DEP). The petition was filed for the purpose of contesting the proposed issuance of a coastal construction control line (CCCL) permit to David B. Fleeman. The permit would authorize Fleeman to construct, seaward of the CCCL, six dune walkovers and gazebos in a portion of unincorporated St.

Johns County, Florida.

By his motion, Fleeman seeks to have TREES' amended petition dismissed on the theory the association lacks standing to bring this action. In making this determination, it is well settled that an association can institute an action even though it is acting solely as the representative of its members. Fla. Home Builders Ass'n v. Dep't of Labor and Employ. Sec., 412 So.2d 351 (Flat 1982). To do so, however, it must meet a two part test. First, a substantial number of the association members must be "substantially affected." Second, "the subject matter of

the proceeding must be within the association's general scope of interest and activity, and the relief requested must be of the type appropriate for a trade association to receive on behalf of its members." Id. at 355. Fleeman asserts that TREES fails to meet the second part of the test.

In paragraphs 2 and 3 of its amended petition, TREES made the following allegations regarding its substantial interests in this proceeding:

TREES... is a nonprofit Florida corporation whose aim is to protect, conserve, promote, and educate its members and the public regarding the natural environment of St. Augustine and

St. Johns County, which includes St. Augustine Beach and the site of the activity that is contemplated under instant permit.

The individual interests of a substantial number of TREES members are affected by the activity that is the subject of the permit. Individual members of TREES reside and own real property in close proximity to the permit site and use and enjoy the permit site itself. The use and enjoyment of the permit site by TREES members encompasses personal recreational activities as well as activities in furtherance of TREES corporate aims.

However, according to TREES' Articles of Incorporation filed with the Department of State on March 25, 1992, a copy of which is attached to the motion to dismiss, the specific purposes for which TREES is organized are:

Protecting and planting trees; education on the importance and care of trees; teaching children the historical significance of the American Famous & Historic trees.

Therefore, the goals, objectives and purposes of the association are threefold: protect and plant trees, educate others on "the importance and care of trees," and teach children "the historical significance" of famous and historic trees. These corporate aims do not square with the aims cited in the amended petition, and there are no

allegations that they will be affected by the issuance of a permit. Moreover, the subject of the proposed action, the issuance of a CCCC permit, is not within the association's general scope of interest and activity, and thus denial of the permit is not appropriate relief for TREES to receive on behalf of its members. This being so, TREES lacks standing to initiate this proceeding, and the amended petition should be dismissed.

In reaching this conclusion, the undersigned has given careful consideration to two points raised by petitioner.

First, TREES contends that under the terms of Section 617.0304, Florida Statutes, a corporation's power to act can only be challenged by a member, the corporation itself, or the Attorney General. Thus, it argues that the statute bars Fleeman from challenging this corporate act. But Fleeman has not challenged TREES' action as being ultra vires; rather, he questions its standing in this proceeding. Standing is, of course, a function of TREES' purposes, not its powers. Then, too, if petitioner's argument was accepted, it would turn all judicial precedent concerning associational standing on its head, and mean that another party, including the agency, could never challenge the standing of a corporation in an administrative action.

Petitioner also contends that since the Articles of Incorporation were filed in 1992, the association has "evolved, broadened, and diversified" its interests beyond those originally described. However, until the Articles are amended, for purposes of determining standing, TREES' corporate aims are limited to those identified in its existing Articles.

Finally, jurisdiction is retained in this case for the limited purpose of considering Fleeman's motion for attorney's fees under Section 120.595(1)(c), Florida Statutes. It is, therefore,

RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the amended petition for administrative hearing.

DONE AND ORDERED this 27th day of May, 1997, in Leon County, Florida.

_

DONALD R. ALEXANDER

Administrative Law Judge Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings

this 27th day of May, 1997.

COPIES FURNISHED:

Kathy Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Michael W. Woodward, Esquire Post Office Box 92 Interlachen, Florida 32148

Lynette L. Ciardulli, Esquire Department of Environmental Protection

3900 Commonwealth Building, Mail Station 35

Tallahassee, Florida 32399-3000

Thomas G. Tomasello, Esquire

1315 East Lafayette Street, Suite B Tallahassee, Florida 32301

C. David Coffey, Esquire 5346 Southwest 91st Terrace

Gainesville, Florida 32608-7124

F. Perry Odom, Esquire

Department of Environmental Regulation 3900 Commonwealth Boulevard

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the Department of Environmental Protection.

Docket for Case No: 97-000715

Orders for Case No: 97-000715