Ward v. Board of Trustees of Internal Imp. Trust Fund, 94-0621

• Decision Date: 08 March 1995
• Docket Number: No. 94-0621,94-0621
• Citation: 651 So.2d 1236
• Parties: 20 Fla. L. Weekly D582 Gerald M. WARD, Appellant, v. BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND, and Department of Environmental Protection, Appellees.
• Court: Florida District Court of Appeals

Page 1236

651 So.2d 1236

20 Fla. L. Weekly D582

Gerald M. WARD, Appellant, v. BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND and Department of Environmental Protection, Appellees.

No. 94-0621.

District Court of Appeal of Florida Fourth District.

March 8, 1995.

William E. Guy, Jr., Stuart, for appellant.

Kenneth J. Plante, General Counsel, and Barrie J. Sawyer, Asst. General Counsel, Tallahassee, for appellees.

PER CURIAM.

Appellant filed a section 120.54, Florida Statutes (1993), rule challenge petition to challenge the validity of proposed amendments to Florida Administrative Code Rules 18-20.003 and 18-20.004, which relate to constructing docks in aquatic preserves, as well as the corresponding economic impact statement. The hearing officer dismissed appellant's amended petition for lack of standing, finding that it failed "to sufficiently allege facts sufficient to show that the person challenging the proposed rule would be substantially affected by it." We reverse and remand as to the proposed amendments and affirm as to the economic impact statement.

Section 120.54(4) grants to "[a]ny substantially affected person" standing to challenge the validity of a proposed agency rule "on the ground that the proposed rule is an invalid exercise of delegated legislative authority." In order to meet the substantially affected test of section 120.54(4), the petitioner must establish: (1) a real and sufficiently immediate injury in fact; and (2) "that the alleged interest is arguably within the zone of interest to be protected or regulated." See All Risk Corp. of Fla. v. State, Dep't of Labor & Employment Sec., 413 So.2d 1200 (Fla. 1st DCA 1982).

A. The Real and Sufficiently Immediate Injury in Fact Element

To satisfy the sufficiently real and immediate injury in fact element, the injury must not be based on pure speculation or conjecture. See, e.g., Professional Firefighters of Fla., Inc. v. Department of Health & Rehabilitative Servs., 396 So.2d 1194 (Fla. 1st DCA 1981).

A real and sufficiently immediate injury in fact has been recognized where the challenged rule or its promulgating statute has a direct and immediate effect upon one's right to earn a living. The clearest example of this is where the challenged rule directly regulates the challenger's occupational field per se by, for example, setting criteria to engage in that profession. See, e.g., Coalition of Mental Health Professions v. Department of Professional Regulation, 546 So.2d 27 (Fla. 1st DCA 1989); Professional Firefighters, 396 So.2d at 1196.

However, even where a challenged rule or its promulgating statute does not regulate the challenger's profession per se by, for example, setting criteria to engage in that profession, but the rule has the effect of directly regulating the professional conduct of persons within such occupation, such challenger has been found to be substantially affected. See State, Dep't of Health & Rehabilitative Servs. v. Alice P., 367 So.2d 1045, 1052 n. 2 (Fla. 1st DCA 1979) (rule terminating federal funding for certain types of abortions substantially affected abortion clinic physician whose number of patients was reduced); see also Florida League of Cities, Inc. v. Department of Envtl. Regulation, 603 So.2d 1363, 1366-67 (Fla. 1st DCA 1992) (rule setting standards for management of wastewater residuals substantially affected cities that owned and operated wastewater treatment facilities).

Appellant's amended petition stated that appellant is a professional engineer who frequently designs piers and docks in the aquatic preserves. The petition further asserted that the proposed rules directly regulate appellant's building of docks and piers in the preserves. The injuries alleged by appellant's amended petition include that the proposed rules would result in economic and administrative adverse impact to appellant; would undermine appellant's ability to meet his chapter 471 statutory duty to design safe docks and piers; and would unlawfully encroach upon appellant's engineering practice.

We conclude that appellant alleged injuries in fact that are sufficiently immediate and direct to establish that he would be substantially affected by the proposed rules. It is clear that appellant would be immediately affected by these rules relating to the construction of docks in the aquatic preserves in that he must comply with them.

Moreover, section 471.033, Florida Statutes (1993), subjects appellant to disciplinary action for negligence in the practice of engineering. Such negligence includes appellant's failure "to utilize due care in performing in an engineering capacity." Fla.Admin.Code R. 21H-19.001(3). Therefore, appellant's construction of docks in accordance with the standards of the challenged rules in and of itself would constitute the failure "to utilize due care in performing in an engineering capacity" if appellant believed that such docks would be unsafe. This is essentially what appellant contended in his assertion that the rules would undermine his ability to design safe docks and piers. Appellant need not comply with the rules and suffer the resulting injury in order to obtain standing to challenge the rules. See Professional Firefighters, 396 So.2d at 1195.

B. The Zone of Interests Element

The general rule regarding the zone of interest element of the substantially affected test is that such element is met where a party asserts that a statute, or a rule implementing such statute, encroaches upon an interest protected by a statute or the constitution. Florida Medical Ass'n v. Department of Professional Regulation, 426 So.2d 1112, 1117 (Fla. 1st DCA 1983). In the context of a rule challenge, the protected zone of interest need not be found in the enabling statute of the challenged rule itself. Id. "Since the crux of [a rule challenge] controversy involves the claim that [the enabling statute] does not authorize the rule, it is obvious...