Avatar Development Corp. v. State

• Decision Date: 22 October 1998
• Docket Number: No. 91,424.,91,424.
• Citation: 723 So.2d 199
• Parties: AVATAR DEVELOPMENT CORPORATION and Amikam Tanel, Petitioners, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

723 So.2d 199

AVATAR DEVELOPMENT CORPORATION and Amikam Tanel, Petitioners, v. STATE of Florida, Respondent.

No. 91,424.

Supreme Court of Florida.

October 22, 1998.

Rehearing Denied December 28, 1998.

Theodore Klein of Bierman & Shohat, Miami, and John H. Pelzer, Samuel S. Fields and Daniella Friedman of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for Petitioners.

Robert A. Butterworth, Attorney General, and Jonathan A. Glogau, Assistant Attorney General, Tallahassee, for Respondent.

David K. Thulman, Assistant General Counsel, Tallahassee, for State of Florida Department of Environmental Protection, Amicus Curiae.

ANSTEAD, Justice.

We have for review a challenge to the constitutionality of section 403.161, Florida Statutes (1993) which penalizes the willful violation of any administrative rule, regulation or permit condition promulgated for the purpose of preventing and controlling pollution. The Fourth District Court of Appeal in State v. Avatar Development Corp., 697 So.2d 561 (Fla. 4th DCA 1997), expressly declared the statute valid. Accordingly, we have jurisdiction under article V, section 3(b)(3) of the Florida Constitution. For the following reasons, we uphold the statute and approve the decision of the district court.

MATERIAL FACTS¹

Petitioners, Avatar Development Corporation and Amikam Tanel (hereinafter referred to collectively as "Avatar") were charged with violating section 403.161(1)(b), Florida Statutes (1993) for failing to comply with special conditions to prevent pollution expressly set out in a dredge and fill permit issued by the Department of Environmental Protection (DEP) to Avatar. Avatar sought the permit to conduct dredge and fill operations in certain existing man-made canals tributary to the intracoastal waterway in Broward County.

DEP's permit contained a number of express conditions to the grant of approval. Under special condition three, Avatar was required to provide forty-eight hour notice to DEP prior to commencement of the dredge and fill operations:

3. At least forty-eight hours prior to commencement of work authorized by this permit, the permittee shall notify the Department of Environmental Protection, Bureau of Wetland Resource Management in Tallahassee, and the Southeast District District [sic] office in West Palm Beach, in writing of this commencement.

Pursuant to special condition five, Avatar was required to install turbidity curtains² around the shoreline of the canal to prevent pollution of adjacent waterways:

5. Prior to the commencement of any construction authorized by this permit, floating turbidity curtains with weighted skirts extending to the bottom of the man-made canals shall be properly installed around the shoreline stabilization areas and all areas to be dredged and filled, to isolate adjacent waters from the work area.... The floating turbidity curtains shall remain in place, be inspected daily and be maintained in good working order until all of the authorized work is complete, and turbidity levels in the project area are within 29 NTUs of background levels.

When Avatar failed to comply with permit conditions three and five, the State charged Avatar with violating section 403.161(1)(b). Pursuant to section 403.161(5), both of these alleged violations constitute first-degree misdemeanors punishable by fine or imprisonment or both.

On motion of Avatar, the county court dismissed the charges, finding section 403.161 unconstitutional as an invalid delegation of legislative authority as well as a violation of the Due Process Clause, and certified the constitutional question³ to the Fourth District Court of Appeal. The district court reversed and upheld the constitutionality of section 403.161.

LAW AND ANALYSIS

At issue in this case is section 403.161, which declares unlawful any violation of rules, regulations, and permit conditions promulgated by DEP for the purpose of accomplishing the Legislature's stated policy in preventing pollution. The section states in relevant part:

(1) It shall be a violation of this chapter, and it shall be prohibited for any person:

....

(b) To fail to obtain any permit required by this chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or issued by the department pursuant to its lawful authority.

§ 403.161(1)(b), Fla. Stat. (1993). Subsection (5) of the statute states that "[a]ny person who willfully commits a violation specified in paragraph (1)(b) ... is guilty of a misdemeanor of the first degree" punishable by fine or imprisonment or both. Id. § 403.161(5).

NONDELEGATION DOCTRINE

Our state constitution expressly prohibits delegation of powers from members of one branch to the members of the other branches of government. Under article I, section 18 of the Florida Constitution, "[n]o administrative agency shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law." Article II, section 3 declares a strict separation of the three branches of government and that: "No person belonging to one branch shall exercise any powers appertaining to either of the other two branches...." Our cases recognize this separation of powers. See Askew v. Cross Key Waterways, 372 So.2d 913, 924 (Fla.1978); State v. Atlantic Coast Line Railroad Co., 56 Fla. 617, 631, 47 So. 969, 974 (Fla.1908).

In Atlantic Coast Line Railroad Co., Justice Whitfield, writing for the majority, recognized the nondelegation doctrine, and succinctly explained its purpose and reach:

The Legislature may not delegate the power to enact a law, or to declare what the law shall be, or to exercise an unrestricted discretion in applying a law; but it may enact a law, complete in itself, designed to accomplish a general public purpose, and may expressly authorize designated officials within definite valid limitations to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose.

56 Fla. at 636-37, 47 So. at 976. In this opinion the Court concluded that a statute creating a Railroad Commission and authorizing it to promulgate rules and regulations related to intrastate transportation of freight and passengers was not an unconstitutional delegation of legislative power. Id. at 628, 641-42, 47 So. at 973, 977. Moreover, the opinion noted that while the Legislature may not delegate the power to make a law prescribing a penalty,

it is competent for the Legislature to authorize the [Railroad] Commission to prescribe duties upon which the law may operate in imposing a penalty and in effectuating the purpose designed in enacting the statute. Where the penalty is imposed by law, it may be incurred for the penal violation of a rule prescribed by the Commissioners. The authority to make the rule must be given by the statute within definite limitations.

Id. at 639, 47 So. at 976 (emphasis added). The Court held that the discretion granted to the Railroad Commission to create rules and regulations did not constitute an invalid usurpation of legislative functions, because the authority granted was subject to limitations set by the Legislature and such authority was administrative in nature which was "essential to the complete exercise of the powers of all of the departments." Id. at 637, 47 So. at 976. In Askew, we reaffirmed the nondelegation doctrine and held that "the legislature is not free to redelegate to an administrative body so much of its lawmaking power as it may deem expedient." 372 So.2d at 924. Although we recognized the need for some flexibility in the administration of legislatively articulated policy, we noted that "flexibility in administration of a legislative program is essentially different from reposing in an administrative body the power to establish fundamental policy." Id. Accordingly, we held that:

Under [the non-delegation] doctrine fundamental and primary policy decisions shall be made by members of the legislature who are elected to perform those tasks, and administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program.

Id. at 925 (emphasis added). We reasoned that only "[w]hen legislation is so lacking in guidelines that neither the agency nor the courts can determine whether the agency is carrying out the intent of the legislature in its conduct, then, in fact, the agency becomes the lawgiver rather than the administrator of the law." Id. at 918-19.

Consistent with our decision in Askew, we held in Brown v. Apalachee Regional Planning Council, 560 So.2d 782 (Fla.1990), that the combination of several chapters within the Florida Statutes provided the Apalachee Regional Planning Council (ARPC) with sufficient guidance in establishing rules for levying fees in accordance with the Legislature's intent:

Chapter 160 provides for the creation of regional planning councils (RPCs) to deal with the problems of growth and development, and gives each RPC the power "[t]o fix and collect ... fees when appropriate." § 160.02(12), Fla. Stat. (1983). Chapter 163 provides that local governments may agree to jointly exercise their power in order to make efficient use of local resources, and that such agreements may provide for "[t]he fixing and collecting of... fees, where appropriate." § 163.01(5)(h), Fla. Stat. (1983). Chapter 380 contains detailed provisions relating to DRIs and provides that regional planning agencies "may adopt additional rules ... to promote efficient review of developments-of-regional-impact applications." § 380.06(22)(c), Fla. Stat. (1983).

Chapters 160 and 163 thus give the ARPC authority to levy fees where "appropriate." Adoption under chapter 380 of a cost-based fee rule clearly promotes the "efficient review" of DRI applications and therefore is "appropriate." The legislature has set forth, in considerable

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