Baillie v. Dept. of Natural Resources

632 So. 2d 1114, 1994 WL 64957
CourtDistrict Court of Appeal of Florida
DecidedMarch 7, 1994
Docket92-02900
StatusPublished
Cited by11 cases

This text of 632 So. 2d 1114 (Baillie v. Dept. of Natural Resources) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baillie v. Dept. of Natural Resources, 632 So. 2d 1114, 1994 WL 64957 (Fla. Ct. App. 1994).

Opinion

632 So.2d 1114 (1994)

Carson Merry BAILLIE, William I. Gulliford, Jr. and William R. Morris, Appellants,
v.
DEPARTMENT OF NATURAL RESOURCES, DIVISION OF BEACHES AND SHORES, State of Florida, Appellee.

No. 92-02900.

District Court of Appeal of Florida, First District.

March 7, 1994.

*1115 Robert P. Smith and Jonathan S. Fox of Hopping Boyd Green & Sams, Tallahassee, for appellants.

Kenneth J. Plante, Gen. Counsel, Dana M. Wiehle and Lanette M. Price, Asst. Gen. Counsel, Dept. of Environmental Protection, Tallahassee, for appellee.

Robert A. Butterworth, Atty. Gen., Michael A. Gross, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, for amicus curiae.

BENTON, Judge.

Brought under section 120.68, Florida Statutes, this appeal from a state agency's adoption of an administrative rule,[1] raises the question whether section 120.68(15), Florida Statutes, should be declared unconstitutional as a denial of access to the courts. We conclude that section 120.68(15), Florida Statutes, is fully consonant with the Constitution of Florida;[2] and give the statutory provision effect by dismissing the appeal.

Ever since its enactment, the Administrative Procedure Act of 1974, section 120.50 et seq., Florida Statutes, has afforded substantially *1116 affected persons the opportunity to put on evidence in administrative rule challenge proceedings, and so make a record which inevitably facilitates any subsequent judicial review of contentions that an administrative agency has overstepped lawful bounds in adopting a rule. Between January 1, 1975, the effective date of the modern Administrative Procedure Act, and July 1, 1992, the effective date of chapter 92-166, section 10, at 1679, Laws of Florida (1992), a substantially affected person could also obtain review[3] under section 120.68, Florida Statutes, of a rule's validity, on nothing more than the record made in rulemaking. E.g., General Telephone Co. of Florida v. Florida Public Service Comm'n, 446 So.2d 1063 (Fla. 1984).

Enacted by chapter 92-166, section 10, at 1679, Laws of Florida (1992), section 120.68(15), Florida Statutes (1993), now prohibits judicial scrutiny of an administrative rule to determine whether the rule constitutes an invalid exercise of delegated legislative authority

except to review an order entered pursuant to a proceeding under s. 120.54(4) or s. 120.56, unless the sole issue presented by the petition [for review] is the constitutionality of a rule and there are no disputed issues of fact.

Proceedings under sections 120.54(4) and 120.56 are administrative rule challenges, initiated by filing petitions seeking determinations of invalidity with the Division of Administrative Hearings. No petition to invalidate administratively the rule sought to be undone here has ever been filed.[4]

If a petition to invalidate a rule filed with the Division of Administrative Hearings complies with statutory requirements, a hearing officer presides in proceedings which typically run their course in approximately seventy days, sections 120.54(4)(c) and 120.56(2) and (3), Florida Statutes (1993), and culminate in a final order, sections 120.54(4)(d) and 120.56(5), Florida Statutes (1993), fully reviewable in an appropriate district court of appeal.

Ordinarily rule challenge proceedings include a hearing "conducted in the same manner as provided in s. 120.57," sections 120.54(4)(d) and 120.56(5), Florida Statutes (1993), a hearing that resembles a non-jury trial. Grounds for administrative rule challenges, which include failure "to follow the applicable rulemaking procedures," are set out in section 120.52(8), Florida Statutes (1993). Parties challenging administrative rules and agencies defending their rules against challenge have the opportunity to adduce evidence in support of their respective positions.

Such evidence can illuminate issues for the hearing officer, in the first instance; and a reviewing court also has the benefit of the hearing officer's fact findings, which may prove indispensable when, as here, evidence is in conflict. "The legislature recognizes the importance of providing the courts with a trial-type record that facilitates review of rules." D. Nam, 1992 Amendments to the Florida Administrative Procedure Act, Fla. Bar J. 55, 57 (July/August 1992).[5]

*1117 In the present case, the parties' briefs devote page after page to an array of disputed issues of fact. The constitutionality of Florida Administrative Code Rule 16B-26.004 is by no means "the sole issue presented." Those attacking the rule also urge the unconstitutionality of section 161.053, Florida Statutes, claim that the coastal construction control line has been set "where there is no actual `beach-dune system' in fact," and complain that the line was drawn without regard for the effect a "seawall and revetment ... [would have on] the landward wave-reach and erosive effects of the hypothetical 100-year storm."

On the basis merely of a rulemaking record,[6] we are asked to decide questions this court has characterized as "technical matters requiring substantial expertise." Island Harbor Beach Club, Ltd. v. Department of Natural Resources, 495 So.2d 209, 223 (Fla. 1st DCA 1986) (affirming hearing officer's order upholding Charlotte County coastal construction control line). See also St. Joseph Land & Dev. Co. v. Department of Natural Resources, 596 So.2d 137 (Fla. 1st DCA 1992) (affirming hearing officer's order upholding Gulf County coastal construction control line). When the Island Harbor court dealt with the "complexity of the scientific and technical issues in th[at] case," 495 So.2d at 223, it had the benefit of the hearing officer's findings and of a record[7] that had been made in a six-day section 120.54(4) rule challenge hearing, "17 volumes of pleadings and transcripts and two large boxes of exhibits." 495 So.2d at 212 n. 4. Nothing comparable is before the court in the present case.

In light of the unambiguous language of section 120.68(15), Florida Statutes (1993), and its clear purpose, we decline to construe the provision to allow review proceedings like those that have been initiated here. We must, therefore, address the contention that section 120.68(15), Florida Statutes (1993), runs afoul of article I, section 21 of the Florida Constitution, which provides:

The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.

Appellants do not contend that the statute is a denial of "equal access to the courts guaranteed by article I, sections 2 and 21, of the Florida Constitution." Green v. State, 620 So.2d 188, 190 (Fla. 1993) (emphasis supplied).

*1118 The contention that an administrative rule challenge hearing is an impermissible barrier to judicial review in cases of this kind was rejected in St. Joe Paper Co. v. Florida Dep't of Natural Resources, 536 So.2d 1119 (Fla. 1st DCA 1988), where the court addressed the precise question. In the St. Joe Paper Co. case, a party seeking to challenge a coastal construction control line in court was required to proceed administratively instead. Judicial review came only after entry of a final order in a section 120.56 proceeding. St. Joseph Land & Dev. Co. v. Florida Dep't of Natural Resources, 596 So.2d 137 (Fla. 1st DCA 1992).

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Bluebook (online)
632 So. 2d 1114, 1994 WL 64957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baillie-v-dept-of-natural-resources-fladistctapp-1994.