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__________________________IN THE SUPREME COURT OF FLORIDA
SUPREME COURT CASE NO. SC01-2656 DISTRICT COURT CASE NO. 1D00-1058
STATE OF FLORIDA BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND,
Petitioner,
vs.
DAY CRUISE ASSOCIATION, INC.,
Respondent.
___________________________________________________________
ON PETITION FOR DISCRETIONARY JURISDICTION FROM THEDISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
___________________________________________________________
PETITIONER’S INITIAL BRIEF ON THE MERITS
TERI A. DONALDSONGeneral CounselFlorida Bar Number 784310MAUREEN M. MALVERN Sr. Assistant General CounselFlorida Bar Number 6609223900 Commonwealth Blvd. - MS 35Tallahassee, FL 32399-3000 Telephone: (850) 488-9314 Facsimile: (850) 414-1228
2
COUNSEL FOR PETITIONER
_______________________________TABLE OF CONTENTS
TABLE OF CITATIONS ii
STATEMENT OF THE CASE AND FACTS 1
SUMMARY OF ARGUMENT 5
ARGUMENT 6
THE PROPOSED RULE IMPLEMENTS THE TRUSTEES’CONSTITUTIONAL DUTY TO MANAGE LANDS HELD IN PUBLIC TRUST 6
THE PROPOSED RULE DOES NOT EXCEED THETRUSTEES’ DELEGATED CONSTITUTIONAL
AUTHORITY 11
THE PROPOSED RULE DOES NOT ENLARGE, MODIFY, ORCONTRAVENE THE TRUSTEES’ DELEGATEDCONSTITUTIONAL AUTHORITY 20
CONCLUSION 26
CERTIFICATE OF SERVICE 28
CERTIFICATE OF COMPLIANCE 28
3
TABLE OF CITATIONS
CASES
Avatar Development Corporation v. State,723 So. 2d 199 (Fla. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Board of Podiatric Medicine v. Florida Medical Association,779 So. 2d 658 (Fla. 1st DCA 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Board of Trustees of the Internal Improvement TrustFund v. Barnett,533 So. 2d 1202 (Fla. 3d DCA 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . 10
City of West Palm Beach v. Board of Trustees of theInternal Improvement Trust Fund,746 So. 2d 1085 (Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Coastal Petroleum Co. v. American Cyanamid Co.,492 So. 2d 339 (Fla. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9
Coastal Petroleum Co. v. Chiles,672 So. 2d 571 (Fla. 1st DCA 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Department of Business and Professional Regulationv. Investment Corporation of Palm Beach,747 So. 2d 374 (Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Department of Legal Affairs v. Rogers,329 So. 2d 257 (Fla. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Florida Board of Medicine v. Florida Academy of Cosmetic Surgery, Inc.,2002 WL 83679 (Fla. 1st DCA Jan. 23, 2002) . . . . . . . . . . . . . . . . . . 13, 14
Florida Cable Television Association v. Deason,635 So. 2d 14 (Fla. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4
CITATIONS CONTINUED
Graham v. Edwards,472 So. 2d 803 (Fla. 3d DCA 1985) . . . . . . . . . . . . . . . . . . . . . . 10, 11, 17
Hayes v. Bowman,91 So. 2d 795 (Fla. 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Krieter v. Chiles,595 So. 2d 111 (Fla. 3d DCA 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Lost Tree Village Corporation v. Board of Trustees of the Internal Improvement Trust Fund,698 So. 2d 634 (Fla. 4th DCA 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 7, 25
Mariner Properties Development, Inc. v. Board of Trustees of the Internal Improvement Trust Fund,743 So. 2d 1121 (Fla. 1st DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
McDonald v. Roland,65 So. 2d 12 (Fla. 1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
St. Johns River Water Management District v.Consolidated-Tomoka Land Co., 717 So. 2d 72 (Fla. 1st DCA 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Southwest Florida Water Management District v. Save the Manatee Club, Inc.,773 So.2d 594 (Fla. 1st DCA 2000) . . . . . . . . . . . . . . . . . 4, 12, 13, 14, 15
State Board of Trustees of the Internal ImprovementTrust Fund v. Day Cruise Association, Inc.,794 So. 2d 696 (Fla. 1st DCA 2001) . . . . 4, 9, 10, 13, 16, 17, 19, 20, 21, 22
State Board of Trustees of the Internal Improvement Trust Fund v. Day Cruise Association, Inc.,798 So. 2d 847 (Fla. 1st DCA 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 25
5
CITATIONS CONTINUED
State Board of Trustees of the Internal ImprovementTrust Fund v. Lost Tree Village Corporation,600 So. 2d 1240 (Fla. 1st DCA 1992) . . . . . . . . . . . . . . . . . . . . 8, 9, 10, 17
State Employees Attorneys Guild v. State,653 So. 2d 487 (Fla. 1st DCA 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
State v. Black River Phosphate Co.,32 Fla. 82, 13 So. 640 (1893) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 22
Volusia County v. Aberdeen at Ormond Beach, L.P.,760 So. 2d 126 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Watson v. Caldwell,27 So. 2d 524 (Fla. 1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Yonge v. Askew,293 So. 2d 395 (Fla. 1st DCA 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
STATUTES AND OTHER AUTHORITIES
Article IV, Section 4, Florida Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Article X, Section 11,Florida Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 7, 11, 21
Section 120.52, Florida Statutes (2001) . . . . . . . . . . 3, 4, 12, 13, 20, 26, 27
Section 120.536, Florida Statutes (2001) . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 120.54, Florida Statutes (2001) . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 120.56, Florida Statutes (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 253.001, Florida Statutes (2001) . . . . . . . . . . . . . 2, 7, 9, 11, 16, 21
6
Section 253.03, Florida Statutes (2001) . . . . 2, 16, 17, 17, 18, 19, 21, 23, 24CITATIONS CONTINUED
Section 253.04, Florida Statutes (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 253.77, Florida Statutes (2001) . . . . . . . . . . . . . . . . . . . . . . . . 2, 7
Section 849.20, Florida Statutes (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Black's Law Dictionary (5th ed. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . 11
Chapter 99-379,Laws of Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Florida Administrative Code Rule 18-21.003 . . . . . . . . . . . . . . . . . . . . . 23
Florida Administrative Code Rule 18-21.004 . . . . . . . . . . . . . . . . . . . . . 22
Florida House of Representatives Committee on Governmental Rules and Regulations, House Bill 107, Staff Analysis (January 29, 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Florida House of Representatives Committee on Natural Resources, CS/SB 1440, Staff Analysis (May 22, 1991) . . . 18, 21
House Bill 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Webster's 3d New International Dictionary (3d ed.) . . . . . . . . . . . . . . . . 24
1 Unlike ordinary cruise ships, these vessels simply take passengers out farenough to escape state regulation of gambling. They embark and disembarkfrom the same location, with no intervening stop anywhere else. (TrusteesEx. 5 ¶ 3.)
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STATEMENT OF THE CASE AND FACTS
This Court is now asked to consider whether the Board of Trustees of
the Internal Improvement Trust Fund (the Trustees) has delegated authority
to bar by rule the mooring or anchoring of vessels engaged in the "cruise to
nowhere" gambling business on lands held in public trust.
In June of 1999, responding to numerous public complaints, the
Trustees determined that use of sovereignty submerged lands for the "cruise
to nowhere" gambling business1 was contrary to the public interest.
(Trustees Ex. 4B; Trustees Ex. 5.) The Trustees directed staff to draft a
lease condition prohibiting "cruises to nowhere" from mooring on
sovereignty submerged lands. (Trustees Ex. 4B.) Day Cruise Association,
Inc., (Day Cruise) challenged this lease condition as an unadopted rule. (Day
Cruise Ex. J); see § 120.56(4)(a), Fla. Stat. (2001).
The Trustees responded to Day Cruise's "unadopted rule" challenge
by developing a rule barring use of sovereignty submerged lands for
anchoring or mooring vessels used in the "cruise to nowhere" gambling
business:
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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.”
(Day Cruise Ex. B: Proposed Rule 18-21.004(1)(i).) The rule was published
December 3, 1999, with a clerical error corrected December 17, 1999. (Day
Cruise Ex. A, B.)
As law implemented by the rule the Trustees cited the public trust
provision of the Florida Constitution as well as statutes delegating to the
Trustees the duty to manage all state-owned lands, expressly including the
duty to implement the constitutional provision allowing private uses of
sovereignty submerged lands only if such uses are "not contrary to the
public interest." (Day Cruise Ex. A, citing Art. X, § 11, Fla. Const.; §
253.001, Fla. Stat.; § 253.03, Fla. Stat.; § 253.04, Fla. Stat.; § 253.77, Fla.
Stat.) As rulemaking authority the Trustees cited the statutory provision
allowing the Trustees to adopt rules governing the anchoring or mooring of
vessels on sovereignty submerged lands and directing the Trustees to control
use of such lands as a place of business. (Day Cruise Ex. A, citing §
9
253.03(7)(a),(b), Fla. Stat.)
Day Cruise challenged the proposed rule, claiming it was an invalid
delegation of authority under section 120.52(8) of the Administrative
Procedure Act. (R. at 001.) Before a hearing could be held, Day Cruise
moved for a summary final order, attaching exhibits. (R. at 015; Attachment
I.) The Trustees responded with their own exhibits. (R. at 038; Attachment
I.) Day Cruise claimed there were no material issues of fact as to whether the
rule: 1) exceeded the Trustees' grant of rulemaking authority; 2) enlarged,
modified, or contravened the laws implemented; 3) was arbitrary or
capricious; and 4) was not supported by competent substantial evidence.
(R. at 001-10.)
On February 17, 2000, the Administrative Law Judge (ALJ) granted
Day Cruise's motion for Summary Final Order as to the first two issues
(exceeding rulemaking authority and contravening the laws implemented).
(R. at 070-71, 072-73.) However, the ALJ refused summary disposition on
the "arbitrary and capricious" and "supported by competent substantial
evidence" issues. (R. at 067-68.) The ALJ determined that substantial issues
of material fact existed as to the public interest rationale for the proposed
rule. (R. at 073-74.)
The Trustees timely appealed. In a split decision, the First District
10
affirmed the ALJ's summary final order. State Board of Trustees of the
Internal Improvement Trust Fund v. Day Cruise Ass'n, Inc., 794 So. 2d 696
(Fla. 1st DCA 2001) ("Day Cruise I"). In his dissent, however, Chief Judge
Allen declared the proposed rule was "clearly within the specific regulatory
power" granted the Trustees regarding "use of sovereignty submerged lands
for the anchoring or mooring of vessels." Id. at 706 (Allen, C.J., dissenting.)
He cited another opinion by the First District for the principle that the 1999
amendments to the Administrative Procedure Act still do not "necessitate a
fully detailed catalogue" of possible subjects for agency rulemaking. Id.
(citing Southwest Fla. Water Management Dist. v. Save the Manatee Club,
Inc., 773 So. 2d 594 (Fla. 1st DCA 2000)).
The Trustees moved for clarification, rehearing, rehearing en banc, or
certification that the court's opinion passes on a question of great public
importance. The majority issued an opinion denying rehearing, but the full
court certified to this Court the following question:
Is proposed rule 18-21.004(1)(i) an invalid exercise of delegatedauthority within the meaning of section 120.52(8)(b) or (c),Florida Statutes (1999)?
State Board of Trustees of the Internal Improvement Trust Fund v. Day
Cruise Ass'n, Inc., 798 So. 2d 847, 848 (Fla. 1st DCA 2001) ("Day Cruise
II").
11
The Trustees timely petitioned this Court to take jurisdiction. By
order dated December 5, 2001, this Court postponed its decision on
jurisdiction and ordered briefing on the merits.
SUMMARY OF ARGUMENT
The majority opinion below holds the Trustees lack rulemaking
authority to prevent gambling vessels from anchoring or mooring on
sovereignty submerged lands. This conclusion contradicts the specific
constitutional duty given the Trustees to determine whether a particular use
of sovereignty submerged lands is "contrary to the public interest." The
Trustees' authority to allow uses of these lands by private business
operations is governed by the public trust doctrine. The proposed rule
implements the constitutional duty to hold these lands in trust for all the
people.
The holding below also contradicts the specific rulemaking authority
given the Trustees over anchoring or mooring of vessels on sovereignty
lands. The Administrative Procedure Act does not require a detailed
catalogue of all types of commercial vessels which may be prohibited from
using sovereignty submerged lands to anchor or moor vessels.
Finally, the majority opinion contradicts the Legislature's specific
directive to the Trustees to "control use of sovereignty lands as a place of
2 § 849.20, Fla. Stat. (2001).
12
business." The Trustees' proprietary duty to manage lands held in public
trust is not limited to protecting the environment or prohibiting illegal acts.
The rule implements the specific authority given the Trustees to control
vessel anchoring or mooring on sovereignty submerged lands in order to
protect the public interest.
ARGUMENT
Standard of Review
The standard of review for all issues in this appeal is de novo. See
Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130
(Fla. 2000) (standard of review on summary disposition is de novo).
I. THE PROPOSED RULE IMPLEMENTS THE TRUSTEES'CONSTITUTIONAL DUTY TO MANAGE LANDS HELD INPUBLIC TRUST.
The majority below denies that the Trustees have rulemaking authority
to prevent gambling vessels (described by the Legislature as "a common
nuisance"),2 from anchoring on sovereignty submerged lands. This opinion
puts in doubt the Trustees' ability to implement the State Constitution.
Under common law and the Florida Constitution, lands under
navigable waters are held "in trust for all the people." Art. X, § 11, Fla.
Const. (emphasis added); City of West Palm Beach v. Board of Trustees of
13
the Internal Improvement Trust Fund, 746 So. 2d 1085, 1089 (Fla. 1999);
Coastal Petroleum Co. v. American Cyanamid Co., 492 So. 2d 339, 342
(Fla. 1986) ("for public use") (emphasis added); State v. Black River
Phosphate Co., 32 Fla. 82, 106, 13 So. 640, 648 (1893) (for use by "all the
people of the state"). The Constitution allows private uses of portions of
sovereignty lands only when "not contrary to the public interest." Art. X, §
11, Fla. Const.
It follows from the public trust doctrine that "some agency must
determine" when the public interest allows private preemption of sovereignty
lands. Lost Tree Village Corp. v. Board of Trustees of the Internal
Improvement Trust Fund, 698 So. 2d 634, 636 (Fla. 4th DCA 1997).
The Board of Trustees is that agency. The Trustees hold sovereignty lands
"in trust for the use and benefit of the people of the state pursuant to . . . s.
11., Art. X of the State Constitution." § 253.001, Fla. Stat. (2001). No
private activity involving use of sovereignty lands is allowed without the
Trustees' consent. § 253.77(1), Fla. Stat. (2001).
No other agency has the responsibility to decide whether a particular
private use of sovereignty lands is contrary to the public interest. The
Legislature itself, meeting only two months per year and burdened with
countless other responsibilities, cannot possibly take on the task of managing
14
public lands. Instead the Legislature entrusted the Trustees with the "express
constitutional duty to protect the public's interest in sovereign submerged
lands." State Board of Trustees of the Internal Improvement Trust Fund v.
Lost Tree Village Corp., 600 So. 2d 1240, 1243 (Fla. 1st DCA 1992)
(emphasis added). The Trustees are constitutional officers entrusted with
this unique responsibility. Hayes v. Bowman, 91 So. 2d 795, 802 (Fla.
1957). "Theirs is the duty of taking a broad and objective view of all matters
under their jurisdiction which might adversely affect the public interest . . . ."
Yonge v. Askew, 293 So. 2d 395, 400 (Fla. 1st DCA 1974).
Moreover, effective January 7, 2003, the Board of Trustees of the
Internal Improvement Trust Fund will become a constitutionally created
agency. Art. IV, § 4, Note 1, Fla. Const. In 1998 the people of Florida
voted to amend the Constitution to state expressly that the governor and the
reconstituted cabinet (the chief financial officer, the attorney general, and the
commissioner of agriculture) "shall constitute the trustees of the internal
improvement trust fund . . . as provided by law." Id. Not only do the
Trustees already implement constitutional duties; they will soon become a
constitutional agency.
Yet the majority below holds insufficient under the Administrative
Procedure Act (APA) the constitutional and statutory provisions describing
15
the Trustees' authority in "broad" language. State Board of Trustees of the
Internal Improvement Trust Fund v. Day Cruise Ass'n, Inc., 794 So. 2d 696,
703 (Fla. 1st DCA 2001) ("Day Cruise I"). Such a limitation of Trustee
authority conflicts with the Constitution's mandate. The majority's analysis
turns the public trust doctrine on its head. The question is not whether the
Trustees have been authorized to prevent a private use, but whether they
have been authorized to allow a private use. Without such authorization, no
private use may be allowed. See § 253.001, Fla. Stat. (2001) (directing the
Trustees to implement the public trust doctrine). The Trustees' authority to
allow private uses of sovereignty lands is "rigidly circumscribed" by the
public trust doctrine. Coastal Petroleum, 492 So. 2d at 342; Mariner
Properties Development, Inc. v. Board of Trustees of the Internal
Improvement Trust Fund, 743 So. 2d 1121, 1122 (Fla. 1st DCA 1999). The
Trustees have proprietary authority "to exercise discretion to approve
activities on sovereign lands, so long as the activities are not contrary to the
public interest." Lost Tree, 600 So. 2d at 1245 (emphasis added).
The majority below misunderstands the Trustees' broad proprietary
authority to manage state lands. Courts have long recognized the distinction
between the Trustees' proprietary acts as a landowner and the exercise of
regulatory authority. Watson v. Caldwell, 27 So. 2d 524, 526 (Fla. 1946)
16
(characterizing the Trustees' functions as "more proprietary than
governmental"); Mariner, 743 So. 2d at 1122-23 (holding that APA variance
and waiver provisions do not apply to the Trustees' proprietary rules); Lost
Tree, 600 So. 2d at 1245 (upholding the Trustees' exercise of discretion in
"proprietary management and administration of submerged lands"); Board of
Trustees of the Internal Improvement Trust Fund v. Barnett, 533 So. 2d
1202, 1206 (Fla. 3d DCA 1988) (distinguishing the Board of Trustees acting
"in its proprietary capacity as owner of the State's sovereignty submerged
lands" from "other state agencies acting in a regulatory capacity"); Graham v.
Edwards, 472 So. 2d 803, 807 (Fla. 3d DCA 1985) (explaining that consent
"to erect structures on sovereign submerged lands involves the state's
proprietary interest, as owner of the land").
The majority misunderstands the nature of the Trustees' proprietary
function by denying that the Trustees may exercise their proprietary authority
through rulemaking. Day Cruise I, 794 So. 2d at 697. The Trustees "are not
a permitting agency;" even when engaged in rulemaking they exercise a
different kind of authority from regulatory agencies. See Coastal Petroleum
Co. v. Chiles, 672 So. 2d 571, 573 (Fla. 1st DCA 1996); Mariner, 743 So.
2d at 1122 (explaining that Trustee actions for management and control of
sovereignty lands - including matters subject to Trustee rules - are
17
"undertaken in a proprietary, rather than a regulatory, capacity").
"Proprietary" means "belonging to ownership." Black's Law Dictionary
1097 (5th ed. 1979). Whether acting by rule or otherwise, the Trustees do
not control uses of private lands under the state's police power; they control
uses of public lands under the state's proprietary power.
All the Trustees' governing statutes must be read in pari materia with
Article X, section 11, of the Florida Constitution. See Graham, 472 So. 2d
at 807 (applying to Trustee proprietary authority the principle that laws on the
same subject should be read "in harmony with each other"). The Trustees
must manage public lands for public benefit. See Art. X, § 11, Fla. Const.; §
253.001, Fla. Stat. The restrictive interpretation by the majority below
undermines the Trustees' statutory and constitutional responsibility.
The proposed rule implements the Trustees' constitutional mandate.
Responding to numerous complaints from the public, the Trustees proposed
the rule in order to disallow a business use of sovereignty lands the Trustees
found contrary to the public interest. (Trustees Ex. 5, ¶¶ 11, 12.)
II. THE PROPOSED RULE DOES NOT EXCEED THETRUSTEES' DELEGATED CONSTITUTIONALAUTHORITY.
The proposed rule is a valid exercise of the Trustees' delegated
legislative and constitutional authority. As modified in 1999, the standard for
3 Language identical to the above closing paragraph also appears in section120.536. § 120.536(1), Fla. Stat. (2001).
18
an agency's rulemaking authority is articulated as follows:
"Invalid exercise of delegated legislative authority" means actionwhich goes beyond the powers, functions, and duties delegatedby the Legislature. A proposed or existing rule is an invalidexercise of delegated legislative authority if any one of thefollowing applies:. . . . . . . . . . . . . . . . . . . . . . . . (b) The agency has exceeded its grant of rulemaking authority,citation to which is required by s. 120.54(3)(a)1; (c) The rule enlarges, modifies, or contravenes the specificprovisions of law implemented, citation to which is required bys. 120.54(3)(a)1;. . . . . . . . . . . . . . . . . . . . . . . . . A grant of rulemaking authority is necessary but not sufficient toallow an agency to adopt a rule; a specific law to beimplemented is also required. An agency may adopt only rulesthat implement or interpret the specific powers and dutiesgranted by the enabling statute. No agency shall have authorityto adopt a rule only because it is reasonably related to thepurpose of the enabling legislation and is not arbitrary andcapricious or is within the agency's class of powers and duties,nor shall an agency have the authority to implement statutoryprovisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generallydescribing the powers and functions of an agency shall beconstrued to extend no further than implementing or interpretingthe specific powers and duties conferred by the same statute.
§ 120.52(8), Fla. Stat. (2001) (emphasis added).3
Several months before the split decision below, a different panel of the
First District offered unanimous guidance concerning the 1999 amendments
19
to the APA. The Manatee court refused to "add [its] own view" of
legislative intent, finding the language of section 120.52(8) "clear and
unambiguous." Southwest Fla. Water Management Dist. v. Save the
Manatee Club, Inc., 773 So. 2d 594, 599 (Fla. 1st DCA 2000). The court
simply applied the dictionary definition of "specific" to the statutory context,
stating that authority to adopt a rule "must be based on an explicit
power or duty identified in the enabling statute." Id. . . . . . . . . . . . . . . . . . .
Although the 1999 amendments to the APA rejected the First District's
earlier "class of powers" analysis of APA rulemaking authority, the
Legislature still did not adopt a "detailed" standard for rulemaking:
A rule that is used to implement or carry out a directive willnecessarily contain language more detailed than that used in thedirective itself. Likewise, the use of the term "interpret"suggests that a rule will be more detailed than the applicableenabling statute. There would be no need for interpretation if allof the details were contained in the statute itself.
Manatee, 773 So. 2d at 599; accord, Fla. Board of Medicine v. Fla.
Academy of Cosmetic Surgery, Inc., Nos. 1D00-3897, 1D01-123, 2002 WL
83679 (Fla. 1st DCA Jan. 23, 2002), at *6 (upholding rule enacted under
"broad" grant of authority). Section 120.52(8) "does not necessitate a fully
detailed catalogue of the possible agency action[s], and instead expressly
allows an agency to implement or interpret the specific powers and duties
granted with a more detailed rule." Day Cruise I, 794 So. 2d at 706 (Allen,
20
C.J., dissenting) (citing Manatee). Because "specific" still does not mean
"detailed," the question is whether the statute contains an explicit grant of
authority for the rule, "not whether the grant of authority is specific enough."
Manatee, 773 So. 2d at 599; Board of Medicine, 2002 WL 83679 at *5
(reversing ALJ). Whether a particular rule is authorized must be determined
case by case. Manatee, 773 So. 2d at 599.
Although in Manatee the court found it unnecessary to explore
legislative intent, the legislative history of the 1999 amendments corroborates
that in some cases the explicit grant of broad duties and powers will suffice
for rulemaking. The Legislature still recognizes that "the
level of specificity" in enabling statutes "will vary according to the particular
powers and duties authorized." Fla. H.R. Comm. on Govtl. Rules and
Regs., H.R. 107, Staff Analysis 11 (January 29, 1999). In recognition of
agencies' needs for flexibility, the Legislature rejected a version of the APA
that would have required a "detailed" standard for rulemaking. Compare
H.B. 107 (1999) (referring to "detailed" powers and duties) with Ch. 99-379,
§ 2, at 3790, § 3, at 3791, Laws of Fla. (the law as enacted); see McDonald
v. Roland, 65 So. 2d 12, 14 (Fla. 1953) (holding changes during the
enactment process constitute strong evidence of legislative intent).
As this Court has held before, the Legislature has indicated no
21
intention to "micro-manage Florida's administrative agencies." Dep't of Bus.
and Prof'l Regulation v. Investment Corp. of Palm Beach, 747 So. 2d 374,
384 (Fla. 1999). Modern society "requires that administrative agencies
receive some flexibility in how they may use their authority," and "the
public's interest is served in encouraging agency responsiveness in the
performance of their functions." Id. It is still true that "rulemaking authority
is not restricted to those situations in which the enabling statute details the
precise subject of a proposed rule." Id. (citing St. Johns River Water
Management Dist. v. Consolidated-Tomoka Land Co., 717 So. 2d 72, 80
(Fla. 1st DCA 1998)); see also Manatee, 773 So. 2d at 599 (noting that this
aspect of Consolidated-Tomoka survives).
If every statute had to contain a laundry list of provisions, many laws
could never be implemented. The Legislature is unsuited "to anticipate the
endless variety of situations that may occur or to rigidly prescribe the
conditions or solutions to the often fact-specific situations that arise."
Avatar Development Corp. v. State, 723 So. 2d 199, 204 (Fla. 1998). Hence
the Legislature continues to delegate broad authority to agencies so that the
executive branch may accomplish its constitutional function to implement the
law. See Investment Corp., 747 So. 2d at 385 n.8 (noting that the Legislature
"continues to enact legislation granting broad powers to a variety of
22
agencies").
The majority below concedes that the Trustees have been granted
"comprehensive" rulemaking authority. Day Cruise I, 794 So. 2d at 701.
Section 253.03 provides as follows:
(a) The Board of Trustees . . . is hereby authorized anddirected to administer all state-owned lands and shall beresponsible for the creation of an overall and comprehensiveplan of development concerning the acquisition, management,and disposition of state-owned lands so as to ensure maximumbenefit and use. The Board of Trustees . . . has authority toadopt rules . . . to implement the provisions of this act.
(b) With respect to administering, controlling, and managingsovereignty submerged lands, the Board of Trustees . . . alsomay adopt rules governing all uses of sovereignty submergedlands by vessels, floating homes, or any other watercraft, whichshall be limited to regulations for anchoring, mooring, orotherwise attaching to the bottom; the establishment ofanchorages; and the discharge of sewage, pumpoutrequirements, and facilities associated with anchorages. Theregulations must not interfere with commerce or the transitoryoperation of vessels through navigable water, but shall controlthe use of sovereignty submerged lands as a place of businessor residence.
§ 253.03(7), Fla. Stat. (2001) (emphasis added). Yet the majority below
denies that the comprehensive grant of proprietary authority in subsection (a)
extends to sovereignty lands since only subsection (b) expressly mentions
sovereignty lands. Day Cruise I, 794 So. 2d at 701. This conclusion is
erroneous.
State-owned lands vested in the Trustees expressly include
23
sovereignty lands. § 253.03(1)(b), Fla. Stat. (2001); § 253.001, Fla. Stat.
(2001). The Trustees' rulemaking authority in paragraph (b) of section
253.03(7) must be read in pari materia with other statutory provisions
governing Trustee authority. Hence the term "state-owned lands" in
paragraph (a) must include sovereignty lands. For example, the Trustees'
authority to control use of sovereignty lands for docks and other structures
is well established. See, e.g., Lost Tree, 600 So. 2d at 1245 (Trustees
authorized to control "private preemptive use" of sovereignty lands);
Graham, 472 So. 2d at 807 (Trustees authorized to prohibit dock on
sovereignty lands); Krieter v. Chiles, 595 So. 2d 111, 112 (Fla. 3d DCA
1992) (Trustees authorized to prohibit docks when "it is in the public interest
to do so").
The term "also" in paragraph (b) means exactly what it says: an
additional authority, not a restriction on the preceding authority, as
contended by the court below. See Day Cruise I, 794 So. 2d at 701. The
history of paragraph (b) corroborates this plain meaning of "also." Like
docks, moored or anchored vessels could also preempt or interfere with
traditional public uses of sovereignty lands. Realizing this fact, the
Legislature enacted paragraph (b) in order to clarify that the Trustees also
had authority to control vessels ' preemption of sovereignty lands, not just
24
preemption by docks and other shoreline structures. Fla. H.R. Comm. on
Natural Resources, CS/SB 1440, Staff Analysis 2 (May 22, 1991). As part
of the Trustees' duty to protect the public interest in sovereignty lands, the
Legislature directed the Trustees to control vessels' use of public lands for
business or residential purposes. See § 253.03(7)(b), Fla. Stat. (2001).
This paragraph was meant to add to Trustee authority, not curtail it.
It is difficult to imagine more specific authority for rulemaking than is
found in paragraph (b) of section 253.03(7). The Legislature authorized the
Trustees to adopt rules governing anchoring or mooring of vessels on
sovereignty submerged lands. § 253.03(7)(b), Fla. Stat. (2001). The
proposed rule governs anchoring or mooring of vessels on sovereignty
submerged lands. (Day Cruise Ex. B.) The Legislature directed the Trustees
(using "shall" not "may") to control use of sovereignty submerged lands as a
"place of business." § 253.03(7)(b), Fla. Stat. (2001). The proposed rule
controls use of sovereignty lands for the "cruise to nowhere" gambling
business. (Day Cruise Ex. B.) These vessels use sovereignty submerged
lands as a place of business by loading and unloading passengers, selling
tickets, advertising, displaying gambling paraphernalia, and taking on
supplies.
The Trustees were prepared to show at hearing that use of sovereignty
25
lands to anchor or moor vessels engaged in the offshore gambling business
is contrary to the public interest for many reasons. The Trustees were
responding to numerous complaints from communities whose coastal lands
and waters were being disturbed by noise, traffic, drunkenness,
environmental damage, and other adverse impacts from business operations
of "cruise to nowhere" gambling vessels anchored or moored on sovereignty
lands. (See Trustees Ex. 5 ¶¶ 11,12; Ex. 5C; Ex. 5D.) The Administrative
Law Judge agreed that the Trustees presented genuine issues of material fact
concerning the reasons for the Trustees' rule. (R. at 067.)
Yet the majority below holds the rule unauthorized because the statutes
implemented "are completely silent about day cruises and about gambling . .
. ." Day Cruise I, 794 So. 2d at 704. If that degree of specificity were
required, however, the Legislature would have enacted a statute incapable of
being implemented. If a particular business could not be controlled unless
listed in the statute, then no business uses of sovereignty lands could be
controlled, since none are listed in the statute. See § 253.03(7)(b), Fla. Stat.
(2001) ("shall control the use of sovereignty submerged lands as a place of
business or residence"). The APA does not impose such a detailed standard
for rulemaking. Statutes need not contain a "laundry list" of prohibited
activities in order to take effect. Dep't of Legal Affairs v. Rogers, 329 So.
26
2d 257, 268 (Fla. 1976) (England, J., concurring).
The APA does not require "[a] more particular delineation of the
vessels subject to anchoring or mooring regulation" before the statute may be
implemented by rule. Day Cruise I, 794 So. 2d at 706 (Allen, C.J.,
dissenting). Indeed, if that degree of specificity were required, it would be
more consistent with the Trustees' constitutional duty to require that they
could not allow any particular business to operate on sovereignty lands
unless that type of business were specifically listed in the enabling statute.
The constitutional mandate is to hold these lands for all the people, not for
private commercial use.
The power to regulate the mooring or anchoring of vessels on
sovereignty lands and the duty to control use of sovereignty lands as a place
of business are explicitly identified in the Trustees' authorizing statute. The
test is not "whether the grant of authority is specific enough." Manatee, 773
So. 2d at 599. The proposed rule satisfies the "specific powers and duties"
test under the APA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. THE PROPOSED RULE DOES NOT ENLARGE, MODIFY,OR CONTRAVENE THE TRUSTEES' DELEGATEDCONSTITUTIONAL AUTHORITY.
The majority below also held that the "cruise to nowhere" rule enlarged
or contravened the Trustees' authority, violating section 120.52(8)(c), Fla.
27
Stat., by prohibiting lawful activities, responding to social problems rather
than solely environmental problems, and interfering with commerce. Day
Cruise I, 794 So. 2d at 702. This restrictive interpretation of the Trustees'
governing statutes would frustrate the Trustees' constitutional responsibility.
First, the majority misapprehends the Trustees' constitutional mandate
by denying the Trustees' authority to control "lawful" activities on
sovereignty lands. Day Cruise I, 794 So. 2d at 702. To the contrary, the
Trustees may not allow any use of sovereignty lands that is contrary to the
public interest, whether or not that use is lawful. § 253.001, Fla. Stat. (2001);
Art. X, § 11, Fla. Const. One reason for restricting anchoring or mooring of
vessels on sovereignty lands is to "control the use of sovereignty submerged
lands as a place of business or residence," regardless whether the business
or residence is otherwise legal. § 253.03(7)(b), Fla. Stat. (2001).
There is nothing illegal about jetski rentals or houseboats, for example,
yet the Trustees may prohibit them on sovereignty lands. See Fla. H.R.
Comm. on Natural Resources, CS/SB 1440, Staff Analysis 2 (May 22,
1991). Likewise the Trustees have previously prohibited use of sovereignty
lands for stilt houses, bridges to undeveloped coastal islands, and activities
inconsistent with traditional public trust uses (not "water dependent"),
although none of these activities is otherwise unlawful. Fla. Admin. Code R.
28
18-21.004(d),(e),(g). At oral argument, Day Cruise conceded the Trustees
could control use of sovereignty lands to moor a floating restaurant, yet there
is nothing illegal about the restaurant business. A floating restaurant or
dinner cruise could be prohibited on sovereignty lands if it interfered with
traditional public uses simply by taking up space or by causing noise, litter,
drunkenness, and other nuisance aspects of operating a restaurant on
sovereignty lands. A gambling business is no more water-dependent than a
restaurant business; it is not one of the traditional public trust uses of
sovereignty lands. Whether for a restaurant business or a gambling business,
the use of sovereignty lands cannot be allowed if it is contrary to the public
interest.
The majority also misapprehends the Trustees' constitutional mandate
by limiting management of sovereignty lands to controlling physical impacts.
Day Cruise I, 794 So. 2d at 702. No authority suggests that the
constitutional mandate to protect the public interest includes only
environmental protection. See Day Cruise I, 794 So. 2d at 707 (Allen, C.J.,
dissenting). In fact, the public trust doctrine long predates environmental
concerns. See, e.g., Black River Phosphate, 13 So. at 648 (sovereignty
lands are held for use "by all the people of the state for . . . navigation and
fishing and other implied purposes").
29
The Trustees' mandate is not only to "conserve" and "protect" state
lands, but also to "administer," "control," and "manage" state lands. §
253.03(1), Fla. Stat. (2001). The vessels provision in section 253 specifically
references this "administering, controlling, and managing" function. §
253.03(7)(b), Fla. Stat. (2001). The Trustees have interpreted their governing
statutes in a long-standing and unchallenged rule defining the "public interest"
as "demonstrable environmental, social, and economic benefits which would
accrue to the public at large" as a result of a proposed action and would
"clearly exceed all demonstrable environmental, social, and economic costs
of the proposed action." Fla. Admin. Code R. 18-21.003(40) (emphasis
added).
An agency's interpretation of the statutes it is charged with enforcing
"is entitled to great deference." Florida Cable Television Ass'n v. Deason,
635 So. 2d 14, 15 (Fla. 1994); accord, Board of Podiatric Medicine v. Fla.
Medical Ass'n, 779 So. 2d 658, 660 (Fla. 1st DCA 2001) (offering an agency
"broad discretion and deference" in interpreting "a statute which it
administers"). In deciding whether to allow use of sovereignty lands the
Trustees consider social benefits or detriments along with environmental
benefits or detriments. Private preemption of sovereignty lands is allowed
4 Day Cruise notes that "[m]any cruise-to-nowhere vessels operate from non-sovereignty lands, and would not be affected by the proposed rule." (Ans.
30
only if the use comports with all aspects of the public interest.
Finally, the contention that the proposed rule "interferes with
commerce" ignores the second part of the statutory provision, specifically
directing the Trustees to control "business" uses of sovereignty lands:
The regulations must not interfere with commerce or thetransitory operation of vessels through navigable water, but shallcontrol the use of sovereignty submerged lands as a place ofbusiness or residence.
§ 253.03(7)(b), Fla. Stat. (2001). The ordinary meaning of "commerce" is
buying and selling of commodities, "especially on a large scale and involving
transportation from place to place." Webster's 3d New International
Dictionary (3d ed.) (unabridged) at 456. By definition, "cruises to nowhere"
are not going from place to place.
The rule controls only anchoring and mooring on sovereignty lands,
not transiting those lands, conveying goods or people from place to place, or
any activities occurring outside the Trustees' jurisdiction. Especially given
the posture of this case (summary disposition only as to delegated authority,
not as to whether there was competent substantial evidence to justify the
rule), the majority has no basis for holding that the proposed rule was
designed to "outlaw a whole 'industry.'"4 Day Cruise II, 798 So. 2d at 847.
Brief in 1st DCA at 5.)
31
A similar challenge to Trustee jurisdiction was raised in connection
with the Trustees' coastal barrier island rules, prohibiting use of sovereignty
lands to bring bridges or utilities to undeveloped coastal islands. The
challenger contended the Trustees exceeded their jurisdiction by attempting
to control development on uplands. Lost Tree, 698 So. 2d at 635-36. The
court rejected that challenge, holding the rules did not prohibit development
on the islands, but merely prohibited use of sovereignty submerged lands
near coastal barrier islands in ways contrary to the public interest. Id.
Similarly, in the present case the proposed rule does not prohibit gambling in
international waters or mooring of "cruise to nowhere" vessels at locations
not controlled by the Trustees. The proposed rule controls only anchoring
or mooring on sovereignty lands held by the Trustees, pursuant to the
authority vested in the Trustees by the Legislature and the Florida
Constitution.
The majority's assumptions concerning Trustee motivation influence
the lower court's conclusion that the rule violates delegated authority. See
Day Cruise II, 798 So. 2d at 847-48. However, the Trustees' justification for
the rule is addressed in rulemaking criteria for which there remain substantial
issues of material fact (alleged arbitrariness and lack of evidentiary basis), §
32
120.52(8)(e),(f), Fla. Stat. (2001). (R. at 067-68.) The Trustees have not yet
had an opportunity to demonstrate the reasons for the rule. The Trustees
should be allowed to put on evidence demonstrating the negative impacts
created by anchoring or mooring "cruise to nowhere" gambling vessels on
sovereignty submerged lands. Whether mooring these vessels on sovereignty
lands impairs the public interest constitutes a mixed question of law and fact,
and such a question should not be pre-judged without a record. See State
Employees Attorneys Guild v. State, 653 So. 2d 487, 489 (Fla. 1st DCA
1995) (preferring that "a mixed question of law and fact . . . have a record
developed . . . before a finder of fact").
The proposed rule properly implements and interprets the Trustees'
governing statutes.
CONCLUSION
The proposed "cruise to nowhere" rule neither exceeds the Trustees'
specific grant of rulemaking authority nor enlarges or contravenes the statutes
implemented by the rule, meeting tests (b) and (c) for valid exercise of
delegated authority. See § 120.52(8)(b),(c), Fla. Stat. (2001). For all the
foregoing reasons, the certified question should be answered in the negative.
The opinion below should be reversed, and the matter remanded to the
Division of Administrative Hearings for a hearing on Day Cruise's remaining
33
challenges to the proposed rule under tests (e) and (f) of section 120.52(8),
Florida Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DATED: January 31, 2002. . . . . . . . . . . . . . . . . Respectfully submitted,
. . . . . . . . . . . . . . . . . . . . ._____________________
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Teri L. Donaldson
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .General Counsel
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Fla. Bar No. 784310
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Maureen M. Malvern
. . . . . . . . . . . . . . . . . . . . . . . . . . . Sr. Asst. General Counsel
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fla. Bar No. 660922
. . . . . . . . . . . . . . . . . . . 3900 Commonwealth Blvd. M.S. 35
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Tallahassee, FL 32399-3000
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tel. (850) 488-9314
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fax. (850) 414-1228
34
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I HEREBY CERTIFY that a true and correct copy of the foregoing
has been furnished to the attorneys for Respondent at the following address:
Stephen H. GrimesLawrence E. SellersSusan L. KelseyHOLLAND & KNIGHTP. O. Drawer 810Tallahassee, FL 32310
by regular U.S. Mail this ______ day of January, 2002.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ._______________________________ . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Maureen M. Malvern
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attorney for Petitioner
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief complies with the font
requirements of Rule 9.210. This brief uses Times New Roman 14-point
font.
. . . . . . . . . . . . . . . _______________________________
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Maureen M. Malvern
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attorney for Petitioner