On July 8, 2009, a final administrative hearing in this case was held in Tallahassee, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: D. Kent Safriet, Esquire
Miguel Collazo, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314
Christopher T. Byrd, Esquire Department of Environmental Protection
The issues in this case are the validity of Florida Administrative Code Rules 18-14.003(4) and 18-21.004(1)(g)-(h) and (7)(i),1 and an alleged unadopted rule
prohibiting fish cleaning stations over sovereign submerged land (SSL); and Petitioner's claim to an award of attorney's fees and costs under Section 120.595(3)-(4), Florida Statutes.2
Petitioner, Bernard Montgomery Myers, filed his Petition for an Administrative Determination Concerning the Validity of Certain Adopted and Unadopted Rules (Petition) on May 28, 2009, naming the Department of Environmental Protection (DEP) and the Board of Trustees of the Internal Improvement Trust Fund (BOT) as Respondents, and seeking an award of attorney's and costs under Section 120.595(3)-(4), Florida Statutes. A pre-hearing conference was held on June 1, and a final hearing was scheduled for July 8, 2009. An Amended Petition was filed on June 9.
On June 26, 2009, Respondents filed a Motion to Dismiss Petitioner's Challenge of Departments Alleged Unadopted Rule Prohibiting Fish Cleaning Stations in the Amended Petition for Administrative Determination Concerning the Validity of Certain Adopted and Unadopted Rules (Motion to Dismiss). Among other things, the Motion to Dismiss contested Petitioner's standing to challenge the alleged fish cleaning station rule because the challenge was waived by Petitioner's failure to timely challenge a condition prohibiting fish cleaning stations in his 2005 joint permit/authorization.
At the final hearing, the Motion to Dismiss was denied.
Petitioner testified, called Randall L. Armstrong (an expert in
environmental permitting and SSL proprietary authorizations), and had Petitioner's Exhibits 1, 5, 7, and 8 admitted in evidence.
DEP called James W. (Jim) Stoutamire and had DEP Exhibits 1 and 5 admitted in evidence. Joint Exhibits 1-3 were admitted in evidence.
After the presentation of evidence, DEP ordered a Transcript of the final hearing, which was filed on July 22, 2009. The parties were given ten days from the filing of the Transcript to file proposed final orders, which have been considered (along with a memorandum of law filed by Respondents).
Petitioner owns land on Lake Talquin. In 2003, he obtained a joint permit and SSL consent of use to build a seawall, a boat dock and a covered but not walled boathouse there. In 2005 he obtained another joint permit and SSL consent of use to build another boat dock and another covered boathouse at another location on his property there.
Both joint permit/authorizations had general and special conditions. Both had a general condition that limited the permit/authorization to "the specific processes and operations applied for and indicated in the approved drawings or exhibits" and required Petitioner to operate and maintain the facilities "to achieve compliance with the conditions of this permit." Both have a specific condition prohibiting "fish cleaning stations
. . . on any structure that is located over the water." The 2003
joint permit/authorization has a specific condition prohibiting any walls and doors on the boathouse and another specific condition prohibiting the installation of water and electric lines. The 2005 joint permit/authorization omits those specific conditions.
DEP has issued a Notice of Violation (NOV) against Petitioner for violating the 2005 joint permit/authorization's specific condition prohibiting water and electric lines, for exceeding the dimensions of the boathouse authorized by the joint permit/authorization, for adding a second story structure of livable space (with a kitchen, bathroom, shower, furnished seating area, flat-panel television, and window air conditioning unit) above the boathouse in the space between the roof rafters and the top of the authorized first story structure.
DEP has not issued an NOV as to the 2003 joint permit/authorization although it also has electric and water lines.
DEP has not issued an NOV as to either joint permit/authorization for having a fish cleaning station over the water. An inspector told Petitioner that the fish cleaning station on the newer facility was a violation of the 2005 permit but that it was not an issue anymore after a change in the law. Petitioner attempted but failed to prove that DEP or BOT prohibits fish cleaning stations over water as a general rule. It is not clear what change in the law has occurred with respect
to fish cleaning stations. In any event, the evidence was that these facilities are prohibited when appropriate for protection of water quality, not as a general rule.
Rule 18-14.003 states in pertinent part:
It shall be a violation of this rule for any person or the agent of any person to knowingly refuse to comply with any provision of Chapter 253, F.S., willfully violate any provision of Chapter 253, F.S., or to willfully damage state land (the ownership or boundaries of which have been established by the state) or products thereof, by doing any of the following:
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(4) Maintain, place or build permanent or temporary structures, including, but not limited to, additions to existing structures; all structures whose use is not water- dependent; sanitary septic systems; fences, docks and pilings; houses; oil rigs; and utility installations on or over state land without consent or authority from the Board or Department.
Petitioner's rule challenge focuses on the part of the rule specifying: "structures whose use is not water-dependent; sanitary septic systems; . . . houses; . . . and utility installations on or over state land without consent or authority from the Board or Department."
Rule 18-21.004 states in pertinent part:
The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands.
General Proprietary.
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Activities on sovereignty lands shall be limited to water dependent activities only unless the board determines that it is in the public interest to allow an exception as determined by a case by case evaluation. Public projects which are primarily intended to provide access to and use of the waterfront may be permitted to contain minor uses which are not water dependent if:
Located in areas along seawalls or other nonnatural shorelines;
Located outside of aquatic preserves or class II waters; and
The nonwater dependent uses are incidental to the basic purpose of the project, and constitute only minor nearshore encroachments on sovereign lands.
Stilt house, boathouses with living quarters, or other such residential structures shall be prohibited on sovereignty lands.
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General Conditions for Authorizations. All authorizations granted by rule or in writing under Rule 18-21.005, F.A.C., except those for aquaculture activities and geophysical testing, shall be subject to the general conditions as set forth in paragraphs
through (i) below. The general conditions shall be part of all authorizations under this chapter, shall be binding upon the grantee, and shall be enforceable under Chapter 253 or 258, Part II, F.S.
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(i) Structures or activities shall be constructed, operated, and maintained solely for water dependent purposes, or for non-
water dependent activities authorized under paragraph 18-21.004(1)(g), F.A.C., or any other applicable law.
Petitioner's rule challenge focuses on the parts of this rule prohibiting non-water dependent uses over SSLs, unless in the public interest as determined by a case-by-case evaluation and prohibiting stilt houses, boathouses with living quarters, and other residential structures.
Petitioner contends that these rules: exceed their legislative authority; enlarge, modify, or contravene the laws they implement; are vague, lack adequate standards for BOT decisions, and vest unbridled discretion in the BOT (particularly by use of the terms "structure whose use is not water dependent," "utility installations," and "public interest by a case by case evaluation"); and are arbitrary and capricious (for essentially the same reasons they allegedly are vague). See § 120.52(8)(b)- (e), Fla. Stat.
The term "structure whose use is not water dependent" is not defined by rule, but Rule 18-21.003(68) states: "'Water dependent activity' means an activity which can only be conducted on, in, over, or adjacent to water areas because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation, energy production or transmission, or source of water, and where the use of the water or sovereign submerged lands is an integral part of the activity."
DEP makes determinations of water-dependency on a case- by-case review of the facts and circumstances presented in each case. DEP does not have a list of factors used in making this determination in any rule, non-rule policy, or other document.
According to the evidence, DEP considers docks and boathouses to be water-dependent structures. A roof over a dock may be considered water-dependent depending on the facts and circumstances and whether the roof is an integral and required part of the water-dependent activity. The same is true with respect to benches that are part of a dock structure. Boating- related paraphernalia such as boat paddles, life vests, and similar items can be stored in empty rafters under the roof of a permitted docking facility, but not rakes and shovels cannot, because boating-related paraphernalia are associated with transportation across water, while rakes and shovels are not. Cans of gasoline are related to transportation on water, but their storage on the rafters of a boathouse is not necessarily a water-dependent activity because this is not considered to be safe. Depending on the circumstances, DEP has authorized the installation of electrical and water lines and sewage pump-out systems on boat docking facilities. The installation of electrical and water lines and sewage pump-out systems can be an integral or required part of a public or private commercial marina or docking facility, but generally not a noncommercial
dock. DEP once authorized the use of golf carts in connection with a long private pier.
The evidence proved that reasonable people of common intelligence can disagree on the interpretation and application of the "not water-dependent" definition. Even experienced consultants are required to check with DEP to be sure they are interpreting and applying the definition correctly. DEP employees sometimes are required to check with DEP headquarters in Tallahassee to be sure they are interpreting and applying the definition correctly. But the evidence did not prove that the definition is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT.
The term "utility installations" is reasonably clear and is generally understood to mean the installation of water, sewer, and electricity. The evidence did not prove that the term is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT.
The evidence did not prove that the term "public interest by a case by case evaluation" is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence was that DEP interprets the definition in the sentence that immediately follows in Rule 18-21.004(1)(g) to limit the "public interest" exception to certain "public projects" (which BOT then broadly interprets to include
privately-owned marinas that are open to the public).
The evidence did not prove that the challenged parts of Rules 18-14.003 and 18-21.004 are unsupported by logic or the necessary facts, or were adopted without thought or reason or are irrational.
CONCLUSIONS OF LAW
A substantially affected person can challenge a rule or an unadopted agency statement that is required to be adopted as a rule under Section 120.54(1)(a), Florida Statutes. See
§ 120.56(1)(a), (3)(a), and (4)(a), Fla. Stat.
As stipulated, Petitioner is substantially affected by the challenged adopted rules. Petitioner has standing to challenge the adopted rules both as an owner of riparian land and as the recipient of an NOV for allegedly violating those rules.
Violation of the alleged fish cleaning station unadopted rule was not charged in the NOV against Petitioner.
But if there were such an unadopted rule, Petitioner would not be required to wait until he is charged with a violation before challenging it. See Lanoue v. Dep't of Law Enforcement, 751
So. 2d 94, 98 (Fla. 1st DCA 1999). In addition, regardless of the NOV, the alleged fish cleaning station unadopted rule would substantially affect Petitioner as a riparian owner.
Respondents' Motion to Dismiss contended in part that Petitioner has no standing to challenge the alleged fish cleaning station unadopted rule because he did not timely challenge the condition in his 2005 joint permit/authorization prohibiting fish
cleaning stations. Petitioner has waived challenges to those conditions, and Petitioner cannot now challenge those conditions without renouncing the benefits of his joint permit/authorization. However, regardless of the status of the 2005 joint permit/authorization, Petitioner would have standing as a riparian owner to challenge the alleged fish cleaning station unadopted rule.
"The petitioner has a burden of proving by a preponderance of the evidence that the existing rule is an invalid exercise of delegated legislative authority as to the objections raised." § 120.56(3)(a), Fla. Stat. All or part of a rule can be declared invalid. See § 120.56(3)(b), Fla. Stat.
Section 120.52, Florida Statutes, provides in pertinent
part:
"Invalid exercise of delegated legislative authority" means action that 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 of the following applies:
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The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;
The rule is vague, fails to establish adequate standards for agency
decisions, or vests unbridled discretion in the agency;
The rule is arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational; . . . .
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A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the enabling statute.
The language following the lettered paragraphs of Section 120.52(8), Florida Statutes (sometimes referred to as the "flush left" language) is reiterated in Section 120.536(1), Florida Statutes. It is a "set of general standards to be used in determining the validity of a rule in all cases." Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So. 2d 594, 597-
98 (Fla. 1st DCA 2000). This standard has been held to mean that
Agencies have rulemaking authority only where the Legislature has enacted a specific statute, and authorized the agency to
implement it, and then only if the (proposed) rule implements or interprets specific powers or duties, as opposed to improvising in an area that can be said to fall only generally within some class of powers or duties the Legislature has conferred on the agency.
Bd. of Trustees of the Internal Improvement Trust Fund v. Day Cruise Ass'n, Inc., 794 So. 2d 696, 700 (Fla. 1st DCA 2001), clarified on reh., 798 So. 2d 847 (Fla. 1st DCA 2001). See also Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So. 2d at 599.
As to Section 120.52(8)(b), Florida Statutes, Rule 18-
14.003 cites Section 253.04(2), Florida Statutes, and 18-21.004 cites Sections 253.03(7) and 253.73, Florida Statutes, as their rulemaking authority. Section 253.04(2), Florida Statutes, actually does not provide for rulemaking authority, but Section 253.03(7) provides rulemaking authority for both rules. Section 253.03(7)(a), Florida Statutes, authorizes and directs the BOT "to administer all state-owned lands and shall be responsible for the creation of an overall and comprehensive plan of development concerning the acquisition, management, and disposition of state- owned lands so as to ensure maximum benefit and use." It also authorizes BOT to adopt rules to implement "this act." Id. Section 253.73, Florida Statutes, authorizes BOT to adopt rules to implement Sections 253.67-253.75, Florida Statutes (which include some of the statutes cited as the specific laws implemented by Rule 18-21.004). Petitioner did not prove that
there is no specific rulemaking authority for the challenged parts of Rules 18-14.003 and 18-21.004.
As to Section 120.52(8)(c), Florida Statutes, Rule 18-
14.003 cites Section 253.04, Florida Statutes, and Rule 18-21.004 cites Sections 253.001, 253.03, 253.141, 253.68, 253.72, 253.74, 253.75, and 253.77, Florida Statutes, as the specific laws they implement.
As to Rule 18-14.003, Subsection (1) of Section 253.04, Florida Statutes, authorizes BOT to "police; protect; conserve; improve; and prevent trespass, damage, or depredation upon the lands and the products thereof, on or under the same, owned by the state as set forth in s. 253.03." Subsection (2) of Section 253.04, Florida Statutes, authorizes BOT to fine any person who "knowingly refuses to comply with or willfully violates" the provisions of Chapter 253, or fails to comply with a BOT order "to remove or alter any structure or vessel that is not in compliance with applicable rules or with conditions of authorization to locate such a structure or vessel on state-owned land."
Rule 18-14.003(1) essentially provides that no structures can be maintained, placed, or built on or over state- owned land "without consent or authority" from BOT or DEP. The syntax of the rule is poor, and specifying "all structures whose use is not water-dependent; sanitary systems; fences; docks
and pilings; houses; oil rigs; and utility installations" seems redundant and unnecessary.
Petitioner did not prove that the challenged parts of Rules 18-14.003 (making it a violation to maintain, place or build sanitary septic systems, houses, and utility installations on or over state land without consent or authority from BOT) enlarge, modify, or contravene the cited provisions of law implemented.
As to Rule 18-21.004, Section 253.001, Florida Statutes, states that all lands held in the name of BOT are "held in trust for the use and benefit of the people of the state
. . . ." Section 253.03(1), Florida Statutes, charges BOT with "the acquisition, administration, management, control, supervision, conservation, protection, and disposition of all lands owned by . . . the state . . . ." Section 253.03(15), Florida Statutes, provides that BOT "shall encourage the use of sovereign submerged lands for water-dependent uses and public access." Section 253.141(1), Florida Statutes, recognizes riparian rights that are incident to land bordering on navigable waters, including the rights of ingress, egress, boating, bathing, and fishing. Sections 253.68, 253.72, 253.74, and 253.75, Florida Statutes, deal with the lease or authorization to use SSLs and water column for aquaculture activities, which include support docking. See § 253.68(1), Fla. Stat. Section 253.77(1), Florida Statutes, prohibits any person from commencing
any activities "involving the use of [SSLs] or other lands of the state [held by BOT] until the person has received the required lease, license, easement, or other form of consent authorizing the proposed use."
Petitioner did not prove that the challenged parts of Rule 18-21.004 (prohibiting non-water dependent uses over SSLs unless in the public interest as determined by a case-by-case evaluation and prohibiting stilt houses, boathouses with living quarters, and other residential structures) enlarge, modify, or contravene the cited provisions of law implemented. It is permissible to manage, control, and protect state-owned lands by prohibiting certain things while allowing others. Specifically, it is permissible to encourage water-dependent use and public access by prohibiting most uses that are not water-dependent and prohibiting stilt houses, boathouses with living quarters, and other residential structures. Cf. Lost Tree Village Corp. v. Bd. of Trustees of the Internal Improvement Trust Fund, 698 So. 2d 634 (Fla. 4th DCA 1997)(recognizing BOT's authority to preclude the use of sovereign submerged land, and upholding BOT's decision to prohibit the building of a bridge and the installation of utility lines over its submerged land); Krieter v. Chiles, 595 So. 2d 111 (Fla. 3d DCA 1992)(upholding BOT's authority to prohibit the building of docks on sovereign submerged land); Graham v. Edwards, 472 So. 2d 803, 807 (Fla. 3d DCA
1985)(upholding BOT's authority to prohibit the building of private docks on sovereign submerged land).
Petitioner contends that Day Cruise, supra, requires the conclusion that the challenged rules do not have specific authority and enlarge, modify, or contravene the cited provisions of law implemented. However, that case involved a rule regulating "vessels, floating homes, or any other watercraft" adopted under the authority of Section 253.03(7)(b), Florida Statutes, which gives BOT authority to "adopt rules governing all uses of sovereignty submerged lands by vessels, floating homes, or any other watercraft, which shall be limited to regulations for anchoring, mooring, or otherwise attaching to the bottom."
In Day Cruise, the court held that paragraph (b) of the statute limited BOT's rulemaking authority to adopt rules regulating "vessels, floating homes, or any other watercraft." Day Cruise does not limit the authority of BOT to adopt rules to create "an overall and comprehensive plan of development concerning the acquisition, management, and disposition of state-owned lands so as to ensure maximum benefit and use." In addition, the rule challenged in Day Cruise did not cite Section 253.73 as rulemaking authority and did not cite Sections 253.67-253.75, Florida Statutes, as the statutes being implemented.
Petitioner also relies on Dep't of Highway Safety and Motor Vehicles v. JM Auto, Inc., 977 So. 2d 733 (Fla. 1st DCA 2008), which upheld a determination that a rule was invalid for
not having specific statutory authority. But in that case the only statutory authority for the challenged rule was a general rulemaking authorization to adopt rules to implement a chapter of the Florida Statutes. In this case, the rulemaking authorization was for implementation of specific powers and duties.
Petitioner also relies on Smith v. Dep't of Corr., 920 So. 2d 638 (Fla. 1st DCA 2005), which invalidated a rule charging inmates for copying legal documents. In that case, there was a statute generally authorizing rulemaking and a statute authorizing the agency to "collect restitution and other monetary assessments from inmates while they are incarcerated or under supervision." Id. at 641-642. But there was no specific statutory authority, as required by Sections 120.52(8)(b)-(c), Florida Statutes, to make assessments against inmates. This case is distinguishable in that there is both specific authority under paragraph (b) and a statute to implement under (c) of Section 120.52(8), Florida Statutes.
By way of supplemental authority filed on August 19, 2009, Petitioner also cites to the recent decision in Lamar Outdoor Advert. - Lakeland v. Fla. Dep't of Transp., Case 1D08- 5369 (Fla. 1st DCA 2009), rendered August 19, 2009. However, similar to Day Cruise and Smith, the statutory authority in Lamar was specific to dimensions other than height, and was held to exclude height. As a result, the agency rule addressing height was held not to be authorized by the cited statutes.
The case of Frandsen v. Dep't of Envtl. Prot., 829 So. 2d 267 (Fla. 1st DCA 2002), rev. den., 845 So. 2d 889 (Fla. 2003), cert. denied, 540 U.S. 948, 124 S. Ct. 400, 157 L. Ed. 2d
279 (2003), is more similar to this case. There, the court reviewed a challenge to Rule 62D-2.014(18), which pertained to free speech activities in state parks. The cited authority for the rule was Section 258.007(2), Florida Statutes, which granted DEP the authority to adopt rules to carry out its specific duties, which included the duty under Section 258.004, Florida Statutes, to "supervise, administer, regulate, and control the operation of all public parks” and to "preserve, manage, regulate, and protect all parks and recreational areas held by the state . . . ." The court held that these statutes provided specific authority for the rule.
Similarly, in Hennessey v. Dep’t of Bus. & Prof. Reg., 818 So. 2d 697 (Fla. 1st DCA 2002), the court reviewed a challenge to the validity of Rule 61D-6.002(1), which made race animal trainers the absolute insurers of (i.e., imposed on them absolute liability for) the condition of the animals entered into any race. Id. at 698. The cited statutory authority for the rule included Sections 550.0251(3) and 550.2415(2) and (13), Florida Statutes. Section 550.0251(3) required the agency to "adopt reasonable rules for the control, supervision, and direction of all . . . licensees, and for the holding, conducting, and operating of all . . . races" and stated that
"the duty of exercising this control and power [over licensees and races] is made mandatory upon the division." Section 550.2415(2) and (13) provided:
(2) Administrative action may be taken by the division against an occupational licensee responsible pursuant to rule of the division for the condition of an animal that has been impermissibly medicated or drugged in violation of this section.
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(13) The division shall adopt rules to implement this section. The rules may include a classification system for prohibited substances and a corresponding penalty schedule for violations.
The court held that these statutes provided specific authority for the rule.
As to Section 120.52(8)(d), Florida Statutes, Petitioner did not prove that the challenged parts of Rules 18-
14.003 and 18-21.004 are vague, lack adequate standards for BOT decisions, or vest unbridled discretion in the BOT. At best, Petitioner proved that reasonable people of common intelligence could interpret and apply the rules differently.
Petitioner contends that a rule is vague if it "requires performance of an act in terms that are so vague that men of common intelligence must guess at its meaning." Sw. Fla. Water Mgmt. Dist. v. Charlotte County, 774 So. 2d 903, 915 (Fla. 2d DCA 2001). See also Cole Vision Corp. v. Dep't of Bus. & Prof. Reg., 688 So. 2d 404 (Fla. 1st DCA 1997). The rules at issue in this case require an application for a joint
permit/authorization to impact/use SSL. The permit process specifies what is permitted and authorized. As a result, there is no need for anyone to guess at what acts are prohibited or required to be performed.
As to Section 120.52(8)(e), Florida Statutes, Petitioner did not prove that the challenged parts of Rules 18-
14.003 and 18-21.004 are arbitrary or capricious (i.e., that they are unsupported by logic or the necessary facts, or are adopted without thought or reason or are irrational).
As for the alleged unadopted fish cleaning station rule, "[r]ulemaking is not a matter of agency discretion. Each agency statement defined as a rule by s. 120.52 shall be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable." § 120.54(1)(a), Fla. Stat. "'Rule' means each agency statement of general applicability that implements, interprets, or prescribes law or policy "
§ 120.52(16), Fla. Stat.
Under Section 120.56(4)(b), Florida Statutes, Petitioner had the burden to prove the existence of an unadopted agency statement that is required to be adopted as a rule under Section 120.54(1)(a), Florida Statutes, but has not been adopted as a rule. Petitioner failed to prove an "agency statement of general applicability that implements, interprets, or prescribes law or policy." Rather, the evidence was that fish cleaning
stations are prohibited when appropriate for protection of water quality, not as a general rule.
Based on the foregoing Findings of Fact and Conclusions of Law, the Amended Petition to determine the invalidity of adopted rules and unadopted agency statements (including the request for an award of attorney's fees and costs) is denied.
DONE AND ORDERED this 24th day of August, 2009, in Tallahassee, Leon County, Florida.
J. LAWRENCE JOHNSTON Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 2009.
1/ All rule references are to the version of the Florida Administrative Code in effect at the time of the final hearing.
2/ All statutory references are to the 2009 codification of the Florida Statutes.
D. Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526
Michael W. Sole, Secretary
R. A. Gray Building, Suite 101 Tallahassee, Florida 32399
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 agency 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.
