Decarion v. Martinez, 88-943

• Decision Date: 20 January 1989
• Docket Number: No. 88-943,88-943
• Parties: 14 Fla. L. Weekly 254 George H. DECARION and James E. Roberts, Appellants, v. Bob MARTINEZ, Governor of the State of Florida, Jim Smith, Secretary of State, Bob Butterworth, Attorney General, Gerald Lewis, State Comptroller, Bill Gunter, State Treasurer, Doyle E. Conner, Commissioner of Agriculture, Betty Castor, Commissioner of Education, as and constituting the Board of Trustees of the Internal Improvement Trust Fund, of the State of Florida, a state agency, Appellees.
• Court: Florida District Court of Appeals

Page 1083

537 So.2d 1083

14 Fla. L. Weekly 254

George H. DECARION and James E. Roberts, Appellants, v. Bob MARTINEZ, Governor of the State of Florida, Jim Smith, Secretary of State, Bob Butterworth, Attorney General, Gerald Lewis, State Comptroller, Bill Gunter, State Treasurer, Doyle E. Conner, Commissioner of Agriculture, Betty Castor, Commissioner of Education, as and constituting the Board of Trustees of the Internal Improvement Trust Fund, of the State of Florida, a state agency, Appellees.

No. 88-943.

District Court of Appeal of Florida,

First District.

Jan. 20, 1989.

James S. Mattson of Mattson & Tobin, Key Largo, Terry E. Lewis, Anne Longman, and Steve Lewis of Messer, Vickers, Caparello, French and Madsen, Tallahassee, for appellants.

Ross S. Burnaman, Asst. Gen. Counsel, Florida Dept. of Natural Resources, Tallahassee, for appellees.

SMITH, Chief Judge.

The appellants appeal a final order of the Board of Trustees of the Internal Improvement Trust Fund (Trustees) denying their application to use submerged state lands. We reverse and remand for further proceedings.

Appellants seek to build a residential development known as Curry Cove on Key Largo in Monroe County, Florida. As part of the development the appellants wish to build a dock containing nine boat slips. This dock will be attached to a loading platform and a forklift ramp for moving boats to and from an upland dry storage facility. The docking facility, as proposed, will cover several thousand square feet of submerged state sovereignty lands. Because state land will be affected, appellants are required to obtain approval from the Trustees.

Appellants filed an application for a consent of use pursuant to Rule 18-21.005(1)(a), Florida Administrative Code, which provides that a consent of use is required for docks, access channels, boat ramps, or other activities which would preempt no more than 1,000 square feet of sovereignty land area for one hundred linear feet of shoreline owned by the applicant. In its recommendation, the Department of Natural Resources (DNR) noted that the proposed docking facility "technically" qualified for a consent of use. ¹ However, DNR recommended that a lease would be more appropriate, and suggested that the Trustees have the discretion to treat the application as one requesting a lease. The Trustees followed DNR's recommendations. In order to obtain a lease, Rule 18-21.0041(1)(b)9 mandates that there must not be any benthic communities where boat mooring areas or dock structures are to be located. Since the proposed Curry Cove project will encroach upon benthic communities, the Trustees denied the application by following the recommendations of DNR.

Neither in the proceedings below nor in this appeal has there been authority cited for the Trustee's disregard of the specific approval sought in appellants' application. The Trustees simply argue that the rules were never intended to limit the Trustee's broad discretion nor to provide "absolute certainty" to applicants.

We disagree. Section 253.03(7), Florida Statutes (1987), provides that the Trustees are to administer all state owned lands and "shall adopt rules and regulations necessary to carry out the purposes of this Act...." To that end, the Trustees have adopted Chapter 18-21, Florida Administration Code, known as Sovereignty Submerged Lands Management. By its own terms, this chapter requires that rules contained therein be utilized in considering "all requests for activities on sovereignty lands." Rule 18-21.004, Florida Administrative Code. Rule 18-21.004(1)(j) provides that the purpose in adopting standards for the erection of docking facilities is "to provide a greater degree of certainty regarding the development potential of sovereignty, submerged lands." That purpose is not served when the Trustees are able to decide at will when they will apply one rule instead of another.

Furthermore, inasmuch as the Trustees constitute an agency as that term is defined in section 120.52(1)(b), Florida Statutes (1987), they are compelled to promulgate rules. See Brown v. Board of Trustees of the Internal Improvement Trust Fund, 369 So.2d 640 (Fla. 3d DCA 1979) (review of final judgment in an action to quiet title wherein the Board of Trustees was explicitly noted to be an "agency of the State of Florida Department of Natural Resources"), and Continental Construction Co. v. Board of Trustees of Internal Improvement Trust Fund, 464 So.2d 204 (Fla. 1st DCA 1985), pet. for rev. denied, 472 So.2d 1180 (Fla.1985) (portions of assessment by Board of Trustees for unauthorized use of submerged sovereignty lands were invalid as violating state constitutional provision prohibiting administrative agencies from imposing penalties without legislative authority). Under section 120.68(12)(b), if an agency's action is inconsistent with its rules, an appellate court must remand the case to the agency. See Woodley v. Dept. of Health and Rehabilitative Services, 505 So.2d 676 (Fla. 1st DCA 1987).

In this case, the Trustee's treatment of the appellants' application as one requesting a lease is inconsistent with its rules. Specifically, Rule 18-21.005...