STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADAM M. HARDEN,

Petitioner,

vs.

TAMPA PORT AUTHORITY,

Respondent.

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) Case No. 07-0369RU

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FINAL ORDER

Pursuant to the Pre-hearing Stipulation of the parties filed on February 19, 2007, this matter was submitted to the Division of Administrative Hearings and its duly-designated Administrative Law Judge, Carolyn S. Holifield, on stipulated facts without an evidentiary hearing.

APPEARANCES

For Petitioner: Adam M. Harden, pro se

1611 1/2 North Howard Tampa, Florida 33607

For Respondent: Robert M. Birrenkott, Esquire

Douglas P. Manson, Esquire Carey, O'Malley, Whitaker

& Manson, P.A.

712 South Oregon Avenue Tampa, Florida 33606

STATEMENT OF THE ISSUES

The issues in this case are: (1) whether the Tampa Port Authority is an agency subject to the rulemaking requirements of

Chapter 120, Florida Statutes (2006)1; and, if so, (2) whether Respondent's statements and policies in an e-mail from the Tampa Port Authority's general counsel constitute an unadopted rule within the meaning of Section 120.56, Florida Statutes; and

(3) whether specified provisions in the Tampa Port Authority's "rules" are an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

On January 19, 2007, Petitioner, Adam M. Harden (Petitioner), filed a pleading entitled, "Rule Challenge in Accordance with F.S. 120.56." In that pleading, Petitioner alleges that the Tampa Port Authority, through its general counsel, made a written agency statement in an e-mail dated December 29, 2006, without following the requirements for rulemaking provided in Chapter 120, Florida Statutes.

Petitioner also challenges specific provisions in existing written statements that are compiled as the "Tampa Port Authority Submerged Lands Management Rules," as being invalid under Section 120.56, Florida Statutes.2

On January 22, 2007, the case was assigned to the undersigned. By Notice of Hearing, the final hearing was scheduled for February 21, 2007.

Prior to the final hearing, on February 19, 2007, the parties filed a Joint Motion for Cancellation of Hearing and a

Pre-Hearing Stipulation. The Joint Motion for Cancellation of the Hearing represented that the parties stipulated that

(1) there is no necessity for a hearing because there are no disputed factual issues; (2) the primary legal issue is whether the Tampa Port Authority is an "agency" pursuant to Subsection 120.52(1), Florida Statutes, for purposes of rulemaking; and

1. the issues can be better addressed through the submission of written briefs and exhibits since there are no witnesses for the proceeding.

   In the Pre-Hearing Stipulation, the parties proposed a briefing schedule requiring briefs/opening statements to be served on February 21, 2007, and proposed final orders to be served on March 1, 2007. In an Order issued February 20, 2007, the hearing was cancelled, and the briefing schedule, as proposed by the parties, was established. A subsequent request for an extension of time to file proposed final orders on

   March 5, 2007, was also granted.

   
   

   The parties timely filed briefs/Opening Statements, Proposed Final Orders, and exhibits. Petitioner filed six exhibits3 and the Tampa Port Authority submitted two exhibits,4 all of which were received into evidence. The briefs/Opening Statements, Proposed Final Orders, and exhibits have been considered in preparation of this Final Order.

   FINDINGS OF FACT

   
   

   1. Petitioner is an applicant for a marine construction permit from Respondent.

   2. Respondent, Tampa Port Authority, is the local authority empowered to issue permits for marine construction in areas within its jurisdiction.

      Legislative History of Tampa Port Authority

      
      

   3. The Legislature enacted Chapter 23338, Laws of Florida (1945) (hereinafter referred to as the "1945 Act" or "Chapter 23338"), which established a Port District in Hillsborough County, Florida, to be known as the "Hillsborough County Port District" (hereinafter referred to as "Hillsborough County Port District" or "Port District").

   4. Pursuant to Section 2 of Chapter 23338, the Hillsborough County Port District comprised and included the territory within Hillsborough County as described in the 1945 Act. However, the designated territory did not include all of Hillsborough County.

   5. The 1945 Act created and designated the Hillsborough County Port Authority as the governing body and authority for the Hillsborough County Port District. Later, the name of the governing entity for the Port District was changed from the Hillsborough County Port Authority to the Tampa Port Authority5

      (hereinafter referred to as the "Tampa Port Authority" or "Port Authority").

   6. The Tampa Port Authority is, and has been since its inception, a political and corporate body whose operation is a proper governmental function."6

   7. Chapter 23338 was a special act, which, by it own terms, would become effective "only upon the affirmative vote of a majority of the votes cast at a special election" called and conducted by the Hillsborough County Election Board.7 The 1945 Act further provided that only "duly registered and qualified voters residing within the territorial boundaries of the [Hillsborough County Port] District were eligible to vote" in the special election. See § 23 of Chap. 23338.

   8. The referendum passed and, thereupon, the 1945 Act became effective.

   9. In January 1948, the submerged lands located within the boundaries of the Port District, as described in the 1945 Act and pursuant to the Certificate of Territorial Designation

      No. 19396, were conveyed to the Tampa Port Authority.8 The submerged lands conveyed to the Tampa Port Authority were within the boundaries of Hillsborough County and included in the Government Channel in Hillsborough Bay and the waters of Tampa Bay and Old Tampa Bay, all located in Hillsborough County, Florida.

   10. Chapter 70-716, Section 2, Laws of Florida, revised the Port Authority's enabling act by expanding the territory of the Hillsborough County Port District to "comprise and include all the territory within Hillsborough County."

   11. In November 1970, in accordance with Chapter 70-716, Section 2, Laws of Florida, and pursuant to the Certificate of Territorial Designation No. 25215, all the submerged lands lying within Hillsborough County were conveyed to the Tampa Port Authority.9

   12. As a result of the 1970 conveyance, the jurisdiction of the Tampa Port Authority was extended to include all the submerged land within the Port District.

   13. Since 1970, the Hillsborough County Port District has comprised and included all of the territory within Hillsborough County, including all the submerged lands lying within that county. See Chap. 70-716, § 2; and Chap. 95-488, § 2, Laws of Florida.

   14. In 1984, the Legislature enacted Chapter 84-447, Laws of Florida, which superseded and repealed Chapter 23338, as amended. Eleven years later, the Legislature enacted

       Chapter 95-488, Laws of Florida, which superseded and repealed Chapter 84-447, Laws of Florida. The foregoing acts made no changes affecting the designated geographic territory of the Hillsborough County Port District. Further, those acts made no

       significant or substantive changes regarding the powers and duties of the Tampa Port Authority. Rather, Chapter 84-447, Laws of Florida, and later, Chapter 95-488, Laws of Florida, merely consolidated, compiled, and codified extant laws pertaining to the Hillsborough County Port District.

   15. The legislative intent in enacting Chapter 84-447 and, subsequently, Chapter 95-488, Laws of Florida, was to "preserve, confirm, and perpetuate the ratification by referendum of the Hillsborough County Port District and the Hillsborough County Port Authority by the electorate of the Port District." See

       Chap. 84-447, § 1 and Chap. 95-488, § 1, Laws of Florida. Jurisdiction, Powers, and Duties of the Tampa Port Authority

   16. The Tampa Port Authority has "title to, right of entry upon, and the right to regulate the improvement of any and all submerged lands belonging to the State of Florida contained within the port district," subject to the riparian rights of respective owners of the uplands adjacent thereto. See Chap.

       95-488, § 6, Laws of Florida.

       
       

   17. The Tampa Port Authority has exclusive jurisdiction, control, supervision and management over all publicly-owned docks and wharfs in Hillsborough County Port District.

   18. The Tampa Port Authority is required to make or cause to be made investigations, studies, surveys, plans, drawings, etc., as are necessary and, thereafter, prepare and adopt a

       comprehensive plan for development and improvement of the harbor and shipping facilities of that port district. See Chap.

       95-488, § 5, Laws of Florida.

       
       

   19. The Tampa Port Authority has "all the powers necessary to carry out the provisions of the act" which created the authority. The Tampa Port Authority has the specific responsibility of planning and of carrying out plans for the long-range development of the facilities of and traffic "through the port in the [P]ort [D]istrict." See Chap. 95-488, § 7, Laws of Florida.

   20. In addition to the foregoing, the Tampa Port Authority is empowered to do the following:

       1. operate, manage, and control all projects acquired or constructed under this act;

       2. exercise such police powers as it deems necessary for the effective control and regulation of all facilities, areas, and districts under its jurisdiction;

       3. adopt rules and regulations governing the speed, operation, docking, movement, and stationing of all watercraft plying waterways in the port district under the jurisdiction of the Port Authority; and

       4. subject to state and federal law, regulate, control, license, and establish safety regulations for

          any common carrier of passengers by water which common carrier is operated for compensation in intrastate commerce over a regular route and which embarks from and returns to any portion of the waters within the port district.

          See Chap. 95-488, §§ 7(k),(n), (s), and (y), Laws of Florida.

          Marine Construction in the Port District

          
          

   21. Chapter 95-488, Section 25, Laws of Florida, sets forth the comprehensive scheme for marine construction in the Hillsborough County Port District, including the application and approval process for such construction.

   22. Chapter 95-488, Section 25(b), Laws of Florida, provides that anyone filling or dredging "within the boundaries of the [P]ort [D]istrict and bordering on or in the waters of the [P]ort [D]istrict" is required to make application to the Tampa Port Authority for the appropriate permit authorization.

   23. For the purposes of regulation of marine construction, the term, "waters of the district," is defined as follows:

       "Waters of the district" means all waters lying within the port district which are affected by the ebb and flow of the tide; Lake Thonotosassa; Lake Keystone; and those portions of the Hillsborough River, Alafia River and Little Manatee River within the port district upstream from Tampa Bay

       to the limits of sovereign submerged land ownership." [Emphasis added.]

       
       

       Chapter 95-488, § 25 (a)(13), Laws of Florida.

       
       

   24. Based on the definition above, the regulatory requirements for marine construction are limited to the confines of the Hillsborough County Port District, which is limited to the territorial boundaries of Hillsborough County.

   25. The Hillsborough County Port Authority is required to adopt rules and regulations regarding the receipt, form, and content of the applications for marine construction permits. See Chap. 95-488, § 25(a)(13)(h), Laws of Florida.

   26. Chapter 95-488, Section 25(n), Laws of Florida, authorizes the Tampa Port Authority to adopt minimum construction specifications for all marine construction projects subject to approval under that section.

   27. At issue in this proceeding are the Tampa Port Authority's requirements for marine construction in the Hillsborough County Port District provided by Chapter 95-488, Subsection 25(n), Laws of Florida.

   28. The Port Authority's special acts have provided for specific power to adopt rules and regulations under a procedure that requires notice and a public hearing on the rules being adopted. The process for adoption of rules and regulations of

       the Tampa Port Authority is specifically mandated by the Legislature in the Port's enacting legislation.

   29. The rulemaking procedures specified by Chapter 95-488, Section 25(n), Laws of Florida, which govern marine construction in the Port District, state as follows:

       Prior to the adoption of such specifications, the port authority shall conduct a public hearing to consider the impact of the proposed specifications.

       Notice of such hearing, specifying time and place shall follow the same notice procedure as provided in subsection (e).

       
       

       The referenced subsection (e) requires notice in a newspaper of general circulation, published in the Hillsborough County Port District, at least 20 days prior to the hearing. Chap. 95-488,

       § 25(e), Laws of Florida.

       
       

   30. There are no provisions in either general or special law or existing judicial decisions that make the Tampa Port Authority expressly subject to the Administrative Procedures Act (APA) for rulemaking.10

       Ultimate Findings

       
       

   31. The Tampa Port Authority was created by a special act and, as the governing body of the Hillsborough County Port Authority, operates only within Hillsborough County.

   32. The Tampa Port Authority has not been made expressly subject to the APA for rulemaking procedures.

   33. The Tampa Port Authority does not consider itself an agency subject to Chapter 120, Florida Statutes, rulemaking requirements. Consequently, the Port Authority has not complied with any of the Chapter 120, Florida Statutes, requirements for the adoption of its rules challenged by Petitioner.

   34. The Tampa Port Authority admits that the alleged "rules and agency statements" challenged by Petitioner were not adopted pursuant to Subsection 120.54(1)(a), Florida Statutes. Further, the Port Authority stipulates that it would not meet the requirements of Subsection 120.52(8)(a), Florida Statutes, since the Tampa Port Authority's rules at issue in this proceeding were not adopted pursuant to Chapter 120, Florida

       Statutes, requirements.

       
       

       CONCLUSIONS OF LAW

       
       

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

   36. There is no dispute as to the material facts in this case. The preliminary issue which must be determined is whether the Tampa Port Authority is an agency within the meaning of Chapter 120, Florida Statutes, and, therefore, subject to the rulemaking provisions therein.

   37. Subsection 120.52(1), Florida Statutes, defines "agency" as follows:

       (1) "Agency" means:

       
       

       1. The Governor in the exercise of all executive powers other than those derived from the constitution.

          
          

       2. Each:

          
          

          1. State officer and state department, and each departmental unit described in

             s. 20.04.

          2. Authority, including a regional water supply authority.

          3. Board.

          4. Commission, including the Commission on Ethics and the Fish and Wildlife Conservation Commission when acting pursuant to statutory authority derived from the Legislature.

          5. Regional planning agency.

          6. Multicounty special district with a majority of its governing board comprised of nonelected persons.

          7. Educational units.

          8. Entity described in chapters 163, 373, 380, and 582 and s. 186.504.

          
          

       3. Each other unit of government in the state, including counties and municipalities, to the extent they are expressly made subject to this act by general or special law or existing judicial decision.

       
       

       This definition does not include any legal entity or agency created in whole on in part pursuant to chapter 361, part II, any metropolitan planning organization created pursuant to s. 339.175, any separate legal or administrative entity created pursuant to

       s. 339.175 of which a metropolitan planning organization is a member, an expressway authority pursuant to chapter 348, any legal

       or administrative entity created by an interlocal agreement pursuant to

       s. 163.01(7), unless any party to such agreement is otherwise an agency as defined in this subsection, or any multicounty special district with a majority of its governing board comprised of elected persons; however, this definition shall include a regional water supply authority.

       
       

   38. The above-quoted definition of "agency" refers to three types of agencies that are subject to the requirements of Chapter 120, Florida Statutes. Clearly, two of the three types do not apply in this case. First, Subsection 120.52(1)(a), Florida Statutes, which refers to the Governor, is inapplicable in this case. Second, the category of agencies listed in Subsection 120.52(1)(c), Florida Statutes, does not apply in this case. That subsection defines as agencies subject to Chapter 120, Florida Statutes, units of government that are expressly made subject thereto by special or general law or judicial precedent. Here, the Tampa Port Authority has not been expressly made subject to the provisions of Chapter 120, Florida Statutes, by special or general law or judicial precedent.

   39. Any analysis of whether the Tampa Port Authority is an "agency" must be considered under Subsection 120.52(1)(b), Florida Statutes. That section lists several entities, including "authority," "board," and "commission," as being agencies within the meaning of Subsection 120.52(1), Florida Statutes. However, there is no legal precedent to conclude that

       the name or label assigned to an entity is dispositive of whether such entity is an "agency" under Subsection 120.52(1), Florida Statutes. See Eckert v. Board of Commissioners of the

       North Broward Hospital District, 720 So. 2d 1151 (Fla. 4th DCA 1998); Rubinstein v. Sarasota County Public Hospital Board, 498 So. 2d 1012 (Fla. 2nd DCA 1986); Booker Creek Preservation, Inc. v. Pinellas Planning Council, 433 So. 2d 1306 (Fla. 2nd DCA 1983); Hillsborough County Environmental Protection Commission

       v. Williams, 426 So. 2d 1285 (Fla. 2nd DCA 1983); and Amerson v. Jacksonville Electric Authority, 362 So. 2d 433 (Fla. 1st DCA 1978). In each of the foregoing cases, notwithstanding the designated name of the public entity (i.e., "board," "commission, "district," or "authority"), each was held not to be "agencies" under Subsection 120.52, Florida Statutes.

   40. In considering whether an entity is an "agency" subject to Chapter 120, Florida Statutes, the Second District Court of Appeals, the venue of the Tampa Port Authority has applied the "territorial test." See Rubinstein, 498 So. 2d 1012; Booker Creek, 433 So. 2d 1316; and Williams, 426 So. 2d 1285. The territorial test examines the geographic scope of the governmental body (i.e., whether the entity has the authority to operate outside of a single county) to determine if the entity is more similar to a state agency or a unit of local government.

   41. In Rubinstein, 498 So 2d. at 1012, the issue was whether the Sarasota County Public Hospital Board was a unit of local government or an agency subject to Chapter 120, Florida Statutes. For guidance in addressing this issue, the court considered and cited its opinion in Booker Creek Preservation,

       433 So. 2d at 1307, in which it stated:

       
       

       [W]e rejected Booker Creek's functional" argument in favor of an approach geared more toward the territorial jurisdiction of the body in question. The planning commission operated wholly within Pinellas County, with no authority outside that county, and was not comparable in jurisdiction to a statewide agency or even a regional, intercounty agency. Id.

       
       

       Rubinstein, 498 So. 2d at 1014.

       
       

   42. The Court applied the territorial test in Rubinstein and concluded that the Sarasota County Hospital Board is "coextensive with the county in which it operates." Id. at 1214. Based on that conclusion and consistent with its position in Booker Creek, the Court in Rubinstein, 498 So. 2d at 1014, held that the Sarasota County Hospital Board was not an agency within the scope of the APA.11

   43. Applying the territorial test to this case, the Tampa Port Authority is not an agency within the meaning of Subsection 120.52(1), Florida Statutes, and thus, is not subject to the rulemaking requirements in Chapter 120, Florida Statutes.

   44. In the instant case, the Tampa Port Authority was created by special law and operates wholly within Hillsborough County. The enabling act defines its jurisdiction to be within the Hillsborough County Port District, which is limited to a specific confined territory. Pursuant to Chapter 98-488, Section 2, Laws of Florida, the Hillsborough County Port District comprises and includes only "all of the territory within Hillsborough County," including the water and submerged lands therein.

   45. The Tampa Port Authority's jurisdiction is limited to the territory that comprises the Hillsborough County Port District. Chap. 95-488, §§ 5, 6, and 7, Laws of Florida.

   46. In light of the foregoing, the Tampa Port Authority is not an "agency" pursuant to Subsection 120.52(1), Florida Statutes. Therefore, the Division of Administrative Hearings is without jurisdiction to address Petitioner's challenge to "statements" or "rules" of the Tampa Port Authority or any

issues related thereto.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that

1. The Tampa Port Authority is not an agency under Subsection 120.52, Florida Statutes.

2. The Division of Administrative Hearings does not have jurisdiction to consider Petitioner's rule challenge filed in this proceeding.

DONE AND ORDERED this 12th day of July, 2007, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 2007.

ENDNOTES

1/ All citations are to the 2006 Florida Statutes, unless otherwise indicated.

2/ Petitioner challenges the following Tampa Port Authority Submerged Land Management Rules at II.D.2.e., V.A.1.b. and g., V.A.2.a. and h., V.A.3.h.(2), V.A.3.(i)(1) and V.A.3.k.(1).

Petitioner inadvertently mislabeled the last three challenged rule provisions in his initial pleading as V.A.2. when, in fact, the rule sections quoted are contained in the V.A.3. sequence of rule provisions. These "rules" deal with the placement of or removal of material or structures in "Waters of the District," pursuant to Chapter 95-488, Section 25(13), Laws of Florida.

3/ Petitioner's Exhibit 1--Map 24" x 36", Titled "Tampa Port Authority Port District and Vicinity"; Petitioner's Exhibit 2--Port Authority, "Comprehensive Annual Financial Report"

Fiscal 2005; Petitioner's Exhibit 3--Port District Territorial

Certificates; Petitioner's Exhibit 4--Tampa Port Authority Submerged Land Management Rules; Petitioner's Exhibit 5--Current Navigational Chart of Tampa Bay Estuary based on N.O.A.A.

No. 11416; and Petitioner's Exhibit 6--Tampa Port Authority Enabling Act, compiled.

4/ Tampa Port Authority's Exhibit 1--the Compilation of the Special Acts for the Hillsborough County Port District and Tampa Port Authority; and Tampa Port Authority's Exhibit 2--Florida Joint Legislative Committee on Governmental Rules and Regulations Final Bill Analysis No. SB/HB 107 (Senate Bill 107).

5/ Chapter 63-1400, Section 1, Laws of Florida, and subsequent amendments by Chapter 84-447, Section 2, Laws of Florida, and Chapter 95-488, Section 3(f), Laws of Florida.

6/ Chapter 23338, Section 4, Laws of Florida; and Chapter 95-488, Section 4, Laws of Florida.

7/ There are several references in acts related to the Hillsborough County Port District that specify that the 1945 Act creating that district is a special act. See Chap. 27600,

§ 1(a), Laws of Florida (1951); Chap. 57-1380, § 1, Laws of Florida; and Chap. 63-1399, § 1, Laws of Florida.

8/ The Port Authority executed the Territorial Designation No. 19396 on January 9, 1948, and it was recorded in Official Record Book 2319, pages 189 through 193.

9/ The Port Authority executed the Certificate of Territorial Designation 25215 on November 19, 1970 and it is recorded in the Official Record Book, pages 194 through 199.

10/ There is only one provision of Chapter 95-488, Laws of Florida, as amended, which references Chapter 120, Florida Statutes, proceedings. Chapter 95-488, Section 7(y), Laws of Florida, authorizes the Port Authority to impose fines and penalties against persons operating common carriers in violation of regulations adopted under that subsection or against common carriers operated in violation of such regulations, but only "[a]fter a hearing is conducted by the [P]ort [A]uthority in accordance with chapter 120, Florida Statutes."

11/ In Eckert v. Board of County Commissioners of North Broward Hospital, 720 So. 2d 1151, 1153 (Fla. 4th DCA 1998), the fourth district court provides a precise interpretation of the analysis in Booker and Rubinstein, stating: "To reach its decision, the

second district relied on decisions in which agencies were found not to fall within the APA where they were not comparable to statewide agencies or even regional, intercounty agencies.

Rather, the agencies operated only within a county and were therefore more like a local or municipal entities rather than state entities."

COPIES FURNISHED:

Adam M. Harden

1611 1/2 North Howard Tampa, Florida 33607

Robert M. Birrenkott, Esquire Carey, O'Malley, Whitaker

& Manson, P.A.

712 South Oregon Avenue Tampa, Florida 33606

Douglas P. Manson, Esquire Carey, O'Malley, Whitaker

& Manson, P.A.

712 South Oregon Avenue Tampa, Florida 33606-2543

Charles E. Klug, Esquire Tampa Port Authority 1101 Channelside Drive

Tampa, Florida 33602

Scott Boyd, Executive Director and General Counsel

Joint Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Program Administrator Bureau of Administrative Code Department of State

R.A. Gray Building, Suite 101 Tallahassee, Florida 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 the original notice of appeal with the Clerk of the Division of Administrative Hearings and a 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.

Docket for Case No: 07-000369RU

Orders for Case No: 07-000369RU