Lewis Oil Co., Inc. v. Alachua County

496 So. 2d 184, 11 Fla. L. Weekly 2116, 1986 Fla. App. LEXIS 9963
CourtDistrict Court of Appeal of Florida
DecidedOctober 6, 1986
DocketBN-198
StatusPublished
Cited by9 cases

This text of 496 So. 2d 184 (Lewis Oil Co., Inc. v. Alachua County) 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
Lewis Oil Co., Inc. v. Alachua County, 496 So. 2d 184, 11 Fla. L. Weekly 2116, 1986 Fla. App. LEXIS 9963 (Fla. Ct. App. 1986).

Opinion

496 So.2d 184 (1986)

LEWIS OIL COMPANY, INC., Appellant,
v.
ALACHUA COUNTY, Appellee.

No. BN-198.

District Court of Appeal of Florida, First District.

October 6, 1986.

*185 William C. Andrews, of Scruggs & Carmichael, Gainesville, for appellant.

Thomas A. Bustin, Gainesville, for appellee.

ZEHMER, Judge.

Lewis Oil Company, Inc. (Lewis Oil), appeals a final judgment dismissing its complaint for declaratory judgment to determine the validity of a county ordinance referred to as the Alachua County Underground Storage Facilities Code, and its prayer to enjoin Alachua County (county) from using the ordinance, if declared invalid, as grounds for denying Lewis Oil's applications for permits to install underground gasoline storage tanks. We reverse, holding that the ordinance has not become effective and that appellant has no available administrative remedy for obtaining adequate relief.

This case turns primarily on the construction of section 376.317, Florida Statutes (1985), and related statutory provisions. The Department of Environmental Regulation (DER) is given authority to regulate potential sources of pollution to the underground water supply, including the installation and use of underground tanks for storage of petroleum products used as fuel in vehicles. See sections 376.30-376.317, Florida Statutes (1985). To carry out this delegated authority, DER promulgated rules, codified in chapter 17-61, Florida Administrative Code, which set forth certain specifications and requirements governing both existing and new underground storage facilities. Section 376.317, Florida Statutes (1985), provides that any provision of the cited statutes or rules promulgated thereunder shall control over any other state law or local ordinance except as provided in subsection (3). Subsection 376.317(3) permits a county to "adopt countywide ordinances that regulate underground storage tanks ... which ordinances are more stringent or extensive than any state law or rule regulating such tanks," provided that, among other things, "the ordinance establishing the local program was approved by the department." Further, subsection (3) authorizes DER to promulgate rules permitting any county government *186 to adopt a program regulating underground storage tanks, "which program is more stringent or extensive than that established by any state law or rule regulating underground storage tanks," and specifies certain criteria to be considered in adopting such rule.

DER promulgated rules codified in chapter 17-63, Florida Administrative Code, to set procedures and standards for approval of local tank ordinances. Section 17-63.01 recognizes that in section 376.317, Florida Statutes, the state preempts regulation by local governments of regulated underground storage facilities, and notes that local regulation by the county may be authorized, provided "the local ordinance is approved by the Department." Section 17-63.03 sets forth specific criteria that shall be considered by DER in approving or disapproving any petition by a county seeking approval of a local tank ordinance. This rule also requires publication of public notice of the filing of the petition and DER's proposed decision thereon, and authorizes "a person who is substantially affected by the Department's proposed decision" to request a 120.57 hearing.

The material facts of this case are not in dispute. Alachua County Ordinance 85-7, enacted July 17, 1985, and amended October 22, 1985, by Ordinance 85-13, constitute the Alachua County Underground Storage Facilities Code. This ordinance purports to impose regulations on underground tanks used for the storage of petroleum products that are more stringent and more extensive than DER's rules governing such facilities. In October 1985 the county petitioned DER for approval of the cited ordinance. In April 1986 DER issued a notice of intent to approve the ordinance, provided the county make six amendments to the ordinance within four months of the final order approving the ordinance; otherwise, the ordinance would be deemed disapproved. The county was dissatisfied with the amendments required by DER and filed a petition for formal hearing under section 120.57. DER had not entered a final order on that petition at the time this appeal was taken, and Lewis Oil had not been made a party to that proceeding.

In the meantime, Lewis Oil sought permits to install underground gasoline storage tanks which complied with applicable state law and rules. The county refused to issue the permits on the ground that the proposed installations did not also comply with the cited ordinance enacted by the county. Because each day's delay in completing installation of the tanks was costing Lewis Oil substantial damages which could not be recovered from the county or anyone else, Lewis Oil filed an action for declaratory judgment in the circuit court of Alachua County, seeking a determination of the validity of the ordinance and, if it were declared invalid, an injunction restraining the county from enforcing it prior to final approval by DER. After a short evidentiary hearing, the court denied the requested relief and granted the county's motion to dismiss the action with prejudice. The sole ground stated in the order and judgment is that Lewis Oil has the right to intervene in the county's 120.57 formal administrative proceeding against DER and thus has an adequate administrative remedy available to it which requires that "judicial restraint should be exercised until such remedy is exhausted", citing State ex rel. Department of General Services v. Willis, 344 So.2d 580, 589 (Fla. 1st DCA 1977).

After appeal of the judgment, this court granted Lewis Oil's petition for a constitutional writ, which enjoined the county from enforcing the ordinance until further order of the court, and directed that this appeal be expedited.

We hold that the court below erred in dismissing the action and denying all relief to plaintiff. The complaint alleges a bona fide dispute over enforceability of the county ordinance before the County received final unqualified approval from DER, and it sets forth facts showing that plaintiff will suffer irreparable injury from the county's premature enforcement of the ordinance. The complaint is, therefore, sufficient on its face to state a cause of action for declaratory judgment under *187 chapter 86, Florida Statutes (1985), to judicially determine the validity and enforceability of the ordinance, East Naples Water Systems, Inc. v. Board of County Commissioners, 457 So.2d 1057 (Fla. 2d DCA 1984), and it adequately alleges a basis for additional coercive relief should the ordinance be found unenforceable. § 86.011(2), Fla. Stat. (1985).

We next consider whether the ordinance was in effect, and thus enforceable, during pendency of the County's section 120.57 administrative proceeding to challenge the amendments required by DER as a condition for approval of the adopted ordinance. Clearly the state has preempted the regulation of certain underground storage tanks, and the requirements in section 376.317(3) and rule 17-63.01 that any local ordinance purporting to more strictly regulate this subject must first be approved by DER is concise and direct and, so far as we discern, free from ambiguity and uncertainty of meaning. Quite simply, the statute and implementing rule mandate that the local ordinance, although duly adopted by the county, will not become effective as law until approved by DER through final agency action.

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Bluebook (online)
496 So. 2d 184, 11 Fla. L. Weekly 2116, 1986 Fla. App. LEXIS 9963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-oil-co-inc-v-alachua-county-fladistctapp-1986.