MARINER PROP. DEVELOP. v. BD. OF TRUSTEESS OF INTERNAL …, 98-3453.
Decision Date | 14 September 1999 |
Docket Number | No. 98-3453.,98-3453. |
Citation | 743 So.2d 1121 |
Parties | MARINER PROPERTIES DEVELOPMENT, INC., Appellant, v. BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, Appellee. |
Court | Florida District Court of Appeals |
Kenneth G. Oertel and M. Christopher Bryant, Oertel, Hoffman, Fernandez & Cole, P.A., Tallahassee, for appellant.
F. Perry Odom, Stacey D. Cowley, John W. Costigan and Maureen M. Malvern,
Department of Environmental Protection, Tallahassee, for appellee.
The appellant challenges an administrative order by which the Board of Trustees of the Internal Improvement Trust Fund (the Board) dismissed a petition requesting a variance from and waiver of the provisions of certain administrative rules. We conclude that the Board was entitled to dismiss the petition without an evidentiary hearing, upon the determination that the section 120.542, Florida Statutes, variance and waiver process does not apply to the disputed rules insofar as they involve the exercise of proprietary power.
By its request for a variance and waiver, the appellant sought to avoid the requirements of Florida Administrative Code Rule 18-21.004(1)(h)2 and 20.004(5)(b), with regard to an application to use sovereignty submerged land adjacent to or surrounding an unbridged and undeveloped coastal island. These rules impose standards and criteria which would pertain in connection with the construction of a private docking facility on such land. The appellant sought a variance and waiver under section 120.542, which indicates at subsection (1) that in appropriate circumstances agencies are authorized to grant such relief "to persons subject to regulation."
rev. denied, 482 So.2d 348 (Fla.1986). A request to erect a docking facility on such lands is thus addressed to the Board's proprietary role, Graham, and is properly so identified by rule 18-21.004(1).
The section 120.542(1) limitation of the variance and waiver process to persons subject to regulation is reiterated at subsection (5), and the statute does not refer to proprietary action. Indeed, the statute contains a default provision at subsection (8) which would appear to be contrary to the Board's public trust obligation regarding sovereignty lands. Interests in such lands may not be conveyed without clear intent and authority, Coastal Petroleum, and statutes adversely impacting the Board's public trust must be construed very strictly as they would be in derogation of the common law. Graham.
Because the variance and waiver process in section 120.542 expressly pertains to regulatory rather than proprietary matters, and the statute should not be construed otherwise, the Board was entitled to dismiss the appellant's petition. The appealed order is therefore affirmed.
By restricting the ambit of the Administrative Procedure Act's general—until today, one might have said comprehensive— provision on variances and waivers, the majority fails to give the provision full effect and creates uncertainty about its now judicially truncated scope that is bound to cause confusion in other cases.
Subsection one of section 120.542, Florida Statutes (1997), is a statement of legislative intent that agencies grant appropriate "variances and waivers to requirements of their rules." The guts of the provision are in subsection two, which begins:
Variances and waivers shall be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness.
Spelling out procedures, subsection five evinces no intent to curtail this overarching purpose. The phrases "subject to regulation," "subject to the rule," and "subject to regulation by an agency rule" are used interchangeably in section 120.542.
The majority opinion misconstrues the word "regulation" to mean something less than the Legislature intended. To regulate is "to adjust by rule ...; to direct by rule...." Black's Law Dictionary 1286 (6th ed.1990). A regulation is "a rule...
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