Apalachee Regional Planning Council v. Brown

• Citation: 14 Fla. L. Weekly 1674,546 So.2d 451
• Decision Date: 13 July 1989
• Docket Number: No. 88-2962,88-2962
• Parties: 14 Fla. L. Weekly 1674 APALACHEE REGIONAL PLANNING COUNCIL, Appellant, v. Gene BROWN, d/b/a Leisure Properties, Ltd. and Leisure Properties, Ltd., a Florida partnership, Appellees.
• Court: Court of Appeal of Florida (US)

Page 451

546 So.2d 451

14 Fla. L. Weekly 1674

APALACHEE REGIONAL PLANNING COUNCIL, Appellant, v. Gene BROWN, d/b/a Leisure Properties, Ltd. and Leisure Properties, Ltd., a Florida partnership, Appellees.

No. 88-2962.

District Court of Appeal of Florida,

First District.

July 13, 1989.

Linda Loomis Shelley and Tommy E. Roberts, Jr., of Dixon, Blanton & Shelley, Tallahassee, for appellant.

Gene D. Brown, Tallahassee, for appellees.

SHIVERS, Chief Judge.

We review a final judgment entered October 24, 1988 declaring Fla.Admin.Code Rule 29L-2.02 (now Rule 29L-2.002) as promulgated under chapter 160 (now sections 186.501-186.513, Fla.Stat. (1987)), unconstitutional as an unlawful delegation of legislative power. "Unlawful delegation refers to the power to make a law rather than the authority as to its execution...." Jones v. Department of Revenue, 523 So.2d 1211, 1214 (Fla. 1st DCA 1988). Under the non-delegation principle, this judgment would invalidate all of chapter 160. In this respect the judgment is unnecessarily broad. However, the judgment also states that the statutes "contain absolutely no guidelines or standards for setting fees and no limitation on how much can be assessed." We read the judgment to declare that neither chapter 160 nor any other statutory authority lawfully delegated to the Apalachee Regional Planning Council (ARPC) power to promulgate the Rule at issue. We reverse the judgment and certify to the Florida Supreme Court a question of great public importance:

WHETHER THE POWER TO SET AND COLLECT FEES FOR DEVELOPMENT OF REGIONAL IMPACT APPLICATION AND REVIEW COSTS, AS EXERCISED PURSUANT TO RULE 29L-2.02, WAS PROPERLY DELEGATED TO THE APALACHEE REGIONAL PLANNING COUNCIL BY THE FLORIDA LEGISLATURE.

In October 1984 appellees entered into an agreement with the ARPC for review of their development of regional impact (DRI), paid $4,000 deposit, and submitted an application to the ARPC for review of a Substantial Deviation to a Development of Regional Impact Order pursuant to Fla.Admin.Code Rule 29L-2. The ARPC reviewed appellees' application and in accordance with Rule 29L-2.02, appellees were charged with 100% of the reviewing costs of its application up to $10,000, and 80% of the cost for the portion over $10,000. The final amount due was $14,856.74. (The Rule was amended in 1987 to require a $10,000 deposit and to make the applicant liable for 100% of the review costs. Rule 29L-2.002 (1987)).

Appellees did not pay and the ARPC filed a complaint October 1986 demanding judgment for the amount due. Appellees filed an answer affirmatively defending that the Rule was unconstitutional. The parties stipulated that if the court found the Rule to be constitutional then judgment should be entered for the ARPC in the amount they sought for review costs, and if the Rule is unconstitutional that Appellees should be reimbursed their $4,000 fee deposit.

The ARPC argues its authority to promulgate the Rule derives from essentially three areas of Florida law. First, from the Act pursuant to which the ARPC was created in 1979, the "Florida Interlocal Cooperation Act of 1969." Chapter 163, Fla.Stat. (1983). Second, from the Act which sets out some of the ARPC's activities and authority, the "Florida Regional Planning Council Act." Chapter 160, Fla.Stat. (1983). And third, from section 380.06, Fla.Stat. (1983), of the "Florida Environmental Land and Water Management Act of 1972", which details the role regional planning agencies play in the DRI process.

Reading the pertinent portions of chapters 160, 163, and 380 in pari materia, though they authorize the ARPC to administer DRI reviews and charge fees generally, they do not specifically guide or limit the amount of fees chargeable to the developer for such reviews. Section 160.02(12) empowers the ARPC to "fix and collect ... fees when appropriate." Likewise section 163.01(5)(h) authorizes the ARPC to fix and collect "fees, where appropriate," and to promulgate rules to that end. Section 380.06(22)(c) permits the ARPC to promulgate rules to promote efficient review of DRI applications.

We find our opinion in Department of Business Regulation v. Jones, 474 So.2d 359 (Fla. 1st DCA 1985) instructive. In that case DBR dismissed one of its employees who then appealed to the Career Service Commission. The Commission found that the employee's actions did not warrant dismissal and, after a suspension, it reinstated him to his former position pursuant to the asserted authority ascribed to it under statute. DBR argued that the statute giving the Commission the power to reduce a dismissal to a suspension was an unlawful delegation of legislative power because the statute contained no adequate standards by which the Commission's power could be checked. We disagreed and affirmed noting that there exist exceptions to the general rule that the legislature should provide certain legislative guidelines when delegating discretion to an agency to act.

The exception applicable here arises " 'when the statute regulates businesses operated as a privilege rather than as a right which are potentially dangerous to the public.' " Id. at 362 (quoting Florida Waterworks Association v. Florida Public Service Commission, 473 So.2d 237, 245 (Fla. 1st DCA 1985)). This exception generally arises when the statute " 'relates to the administration of a police regulation and is necessary to protect the general welfare, morals, and safety of the public.... In such situations the courts will infer that the standard of reasonableness is to be applied.' " Department of Business Regulation v. Jones, 474 So.2d at 362 (quoting North Broward Hospital District v. Mizell, 148 So.2d 1, 4, n. 11 (Fla.1962)) (emphases deleted).

The DRI statute along with the statutes which authorize the ARPC to set and collect fees relate to regulation which has as its aim the protection of "the health, welfare, safety, and quality of life of the residents of this state...." Section 380.021. Further, the statutes serve as a control on the privilege of land development which is potentially dangerous to the citizens of more than one county "because of its character, magnitude, or location...." Section 380.06(1). We believe application of this exception to the...