Opinion
1D22-1960
04-12-2023
Devil's Garden Investment, LLC/Devil's Garden Aquaculture, Appellant, v. South Florida Water Management District, Appellee.
Kenneth G. Oertel of Oertel, Fernandez, Bryant &Atkinson, P.A., Tallahassee, for Appellant. Robert C. Glass and Savannah W. Middlebush, West Palm Beach, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Division of Administrative Hearings. Darren A. Schwartz, Administrative Law Judge.
Kenneth G. Oertel of Oertel, Fernandez, Bryant &Atkinson, P.A., Tallahassee, for Appellant.
Robert C. Glass and Savannah W. Middlebush, West Palm Beach, for Appellee.
LONG, J.
Appellant challenged a statement made by Appellee, the South Florida Water Management District, as an unadopted rule. The learned Administrative Law Judge determined the statement was not an unadopted rule. We affirm.
If an agency statement meets the statutory definition of a rule but the agency has not gone through the rulemaking process in its adoption, the rule is invalid. §§ 120.52(8)(a), (20), .54(1)(a), .56(4), Fla. Stat.; Coventry First, LLC v. State, Off. of Ins. Regul., 38 So.3d 200, 203 (Fla. 1st DCA 2010). Appellant's challenge fails for two independently sufficient reasons.
First, the statement was made during settlement negotiations between Appellant and the District. The District denied Appellant's permitting waiver request. It then negotiated with Appellant regarding ways Appellant could satisfy the District's concerns and ultimately obtain the waiver. The statement was made during these negotiations and was not a rule because it did not carry the force of law. It was also not communicated to anyone but Appellant. See § 120.52(16), Fla. Stat. (defining a rule as an "agency statement of general applicability" with force of law "which imposes any requirement or solicits any information not specifically required by statute or by an existing rule").
Second, the District took no enforcement action based on the statement. Appellant's waiver was denied for a different reason, and the challenged statement was communicated much later. The legislature has provided "[a]n agency or an administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule or a rule that is an invalid exercise of delegated legislative authority." § 120.57(1)(e)1., Fla. Stat. A statement that has not formed the basis for any agency action cannot be challenged as an unadopted rule. This also fits into our traditional standing requirements; if a law does not affect a party, the party cannot challenge it. We therefore approve the order on appeal.[*]
AFFIRMED.
ROWE, CJ, and LEWIS, J, concur
[*] We likewise deny Appellant's motion for attorney's fees.