STATE, BD. OF TRUSTEES OF INTERNAL IMPROVEMENT TRUST FUND v. Day …

• Decision Date: 13 September 2001
• Docket Number: No. 1D00-1058.,1D00-1058.
• Citation: 794 So.2d 696
• Parties: STATE of Florida, BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, Appellant, v. DAY CRUISE ASSOCIATION, INC., Appellee.
• Court: Florida District Court of Appeals

794 So.2d 696

STATE of Florida, BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, Appellant, v. DAY CRUISE ASSOCIATION, INC., Appellee.

No. 1D00-1058.

District Court of Appeal of Florida, First District.

September 13, 2001.

Teri L. Donaldson, General Counsel; John W. Costigan, Deputy General Counsel, Maureen M. Malvern, Assistant General Counsel, and Andrew J. Baumann, Assistant General Counsel, Department of Environmental Protection, Tallahassee, for Appellant.

Stephen H. Grimes and Susan L. Kelsey, Holland & Knight, LLP, Tallahassee, for Appellee.

BENTON, J.

This case asks the question whether an administrative rule the Board of Trustees of the Internal Improvement Trust Fund (Trustees) proposed for adoption would "exceed[ ] its grant of rulemaking authority" or "enlarge[ ], modif[y], or contravene[ ] the specific provisions of law implemented." § 120.52(8)(b) & (c), Fla. Stat. (1999). Day Cruise Association, Inc. (Day Cruise) raised the question in a rule challenge brought under section 120.56(2), Florida Statutes (1999). Concluding that the proposed rule was beyond the authority the Legislature had delegated to the Trustees, the administrative law judge (ALJ) entered a final summary order granting Day Cruise's petition for administrative determination of invalidity of proposed rule. We affirm invalidation of the proposed rule.

The Trustees proposed to adopt a rule that would forbid the use of sovereignty submerged lands for mooring or anchoring cruise ships bound offshore primarily so their passengers could gamble (legally) on the high seas, as well as for mooring or anchoring vessels used to ferry passengers to or from such cruise ships. This wording was proposed:

The use of sovereign submerged lands for the anchoring or mooring of vessels used primarily for the purposes of gambling shall be prohibited when such vessels are engaged in "cruises to nowhere," where the vessels leave and return to the State of Florida without an intervening stop within another state or foreign country, or waters within the jurisdiction of another state or foreign country. This prohibition also applies to any vessel used to carry passengers to, or from, "cruises to nowhere."

Proposed Rule 18-21.004(1)(i). The Trustees' notice of rule development cited section 253.03(7), Florida Statutes (1999), as rulemaking authority, and listed sections 253.001, .03, .04, and .77, Florida Statutes (1999), along with Article X, section 11, Florida Constitution, as the "statutes" the proposed rule would implement.

I.

To the extent the Trustees' exercise of authority may be dichotomized into proprietary and regulatory functions, the proposed exercise of authority in the present case falls on the regulatory side of the divide. The question is whether cruise ships and their tenders can moor or dock at facilities at which the Trustees have authorized physically comparable craft to moor or dock. At issue is a selective prohibition based not on the use vessels make of sovereignty lands but on the use to which certain vessels are put once they have steamed offshore.

In any event, the performance even of unambiguously proprietary duties does not exempt the Trustees from rulemaking restrictions the Administrative Procedure Act (APA) imposes. See State, Bd. of Trustees of the Internal Improvement Trust Fund v. Lost Tree Village Corp., 600 So.2d 1240, 1243 (Fla. 1st DCA 1992)

. As the state agency holding title to and charged with managing the state's sovereignty lands, the Trustees have broad responsibilities under the public trust doctrine. See id. ("Although the Board, acting in its proprietary capacity as owner of sovereign submerged lands, `is different from other state agencies acting in a regulatory capacity,' the policies underlying the public trust doctrine do not of themselves exempt the Board from the operation of the APA." (citation omitted)); see also Mariner Properties Dev. v. Board of Trustees of the Internal Improvement Trust Fund, 743 So.2d 1121, 1122-23 (Fla. 1st DCA 1999); Lost Tree Village Corp. v. Board of Trustees of the Internal Improvement Trust Fund, 698 So.2d 634, 635-36 (Fla. 4th DCA 1997); Board of Trustees of the Internal Improvement Trust Fund v. Barnett, 533 So.2d 1202, 1206 (Fla. 3d DCA 1988) (discussing an asserted distinction between the proprietary function of granting consent for construction of a private dock on sovereignty submerged lands, and the regulatory function of attempting to revoke consent, which required compliance with the APA); Graham v. Edwards, 472 So.2d 803, 806-07 (Fla. 3d DCA 1985) (holding Trustees' proprietary interest implicated in riparian landowner's efforts to build a private dock on sovereignty submerged land). We must decide whether the Trustees' proposed rule passes muster under the revised APA.

II.

Recent amendments to the APA have tightened and clarified rulemaking restrictions. In 1996, the Legislature enacted the following:¹

A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement, interpret, or make specific the particular powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than the particular powers and duties conferred by the same statute.

Ch. 96-159, § 3, at 152, Laws of Fla. (codified at § 120.52(8), Fla. Stat. (Supp.1996)). The precise effect of this then new statutory language was at least originally a matter of some debate.² We considered the import of the 1996 amendments in St. Johns River Water Mgmt. Dist. v. Consolidated-Tomoka Land Co., 717 So.2d 72, 80 (Fla. 1st DCA 1998) (interpreting "particular" as requiring only that a (proposed) rule be "within the range of powers" statutorily granted to the agency, and deeming (proposed) rules valid if "within the class of powers and duties identified in the statute to be implemented"), rev. denied, 727 So.2d 904 (Fla. 1999). But see Dep't of Bus. & Prof'l Regulation v. Calder Race Course, Inc., 724 So.2d 100, 102 (Fla. 1st DCA 1998)

(applying the 1996 amendments in invalidating as beyond the scope of the enabling statute an agency rule that would have allowed warrantless searches at a parimutuel facility); St. Petersburg Kennel Club v. Dep't of Bus. and Prof'l. Regulation, 719 So.2d 1210, 1211 (Fla. 2d DCA 1998) (applying the 1996 amendments in invalidating rules defining poker because the enabling statute did not specifically authorize them).

III.

In apparent response to the decision in Consolidated-Tomoka, the Legislature again amended sections 120.52(8) and 120.536(1) in 1999, stating its intent "to clarify the limited authority of agencies to adopt rules in accordance with chapter 96-159, Laws of Florida, and ... to reject the class of powers and duties analysis." Ch. 99 379, § 1, at 3789, Laws of Fla. The legislative history of the 1999 amendments reflects a legislative intent that the standard for agency rulemaking be more restrictive than the standard explicated in what the Legislature deemed inappropriately broad judicial interpretations of the 1996 amendments to the APA, expressly including Consolidated-Tomoka:

[The bill] rejects a judicial interpretation of this standard which created a functional test to determine whether a challenged agency rule is directly within the class of powers and duties identified in the statute to be implemented. [specifically citing Consolidated-Tomoka ]

Fla. H.R. Comm. on Govtl. Rules & Regs., CS/HB 107 (1999) (ch. 99-379, Laws of Fla.) Final Staff Analysis 5 (June 30, 1999); see also Kent Wetherell, Sour Grapes Make Sweet Wine, Fla. Bar Environ. and Land Use Law Section, Section Reporter, (Dec.1999) ("Consolidated-Tomoka... did not survive the legislative session following its rendition as it was effectively overruled³ by legislation adopted in the 1999 Session.... The 1999 legislation explicitly rejects the `class of powers and duties' test created by the court in Consolidated-Tomoka...."). "[T]he Legislature has rejected the standard we adopted in Consolidated-Tomoka." Southwest Florida Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So.2d 594, 599 (Fla. 1st DCA 2000).

Implementing this legislative intent to cabin agency rulemaking authority, the 1999 Legislature amended the "flush left" paragraph of section 120.52(8) and parallel language in section 120.536(1), by replacing the phrase "particular powers and duties" with the phrase "specific powers and duties," and by expressly rejecting the judicial "class of powers and duties" gloss:

A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or, interpret the, or make specific the particular powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific the particular powers and duties conferred by the same statute.

Ch. 99-379, § 2, at 3790, § 3, at 3791, Laws of Fla. (codified...