CASE NO. 98-3453


743 So. 2d 1121

September 14, 1999, Opinion Filed

Rehearing Denied November 12, 1999. Released for Publication November 30, 1999.

An appeal from Order of the Department of Environmental Protection.


Kenneth G. Oertel and M. Christopher Bryant of Oertel, Hoffman, Fernandez & Cole, P.A., Tallahassee, for Appellant.

F. Perry Odom, Stacey D. Cowley, John W. Costigan and Maureen M. Malvern, of the 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."

Although the Board sometimes acts as a regulatory agency, it is also vested with the power and duty to manage and control sovereignty lands. See  253.03(1), Fla. Stat. Consistent with article X, section 11, of the Florida Constitution, such lands are held by the Board as a public trust and the Board's authority is rigidly circumscribed by this common law doctrine. See Coastal Petroleum Co. v. American Cyanamid Co., 492 So. 2d 339 (Fla. 1986), cert. denied, 479 U.S. 1065, 93 L. Ed. 2d 999, 107 S. Ct. 950 (1987). The Board's actions in this regard are undertaken in a proprietary, rather than a regulatory,   capacity. Board of Trustees of the Internal Improvement Trust Fund v. Lost Tree Village Corp., 600 So. 2d 1240 (Fla. 1st DCA 1992); Graham v. Edwards, 472 So. 2d 803 (Fla. 3d DCA 1985), 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.

BENTON, J., dissenting.

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 or order prescribed for management or government." Id. State property requires management, and rules adopted to that end ought not be immune to variance and waiver in appropriate circumstances. Although "consent to erect structures on sovereign submerged lands involves the state's proprietary interest," Graham v. Edwards, 472 So. 2d 803, 807 (Fla. 3d DCA 1985), the Board understandably promulgated rules to facilitate, for example, decisions concerning thousands of individual docks. Applying section 120.542 so that the Board can grant waivers and variances to its rules in appropriate circumstances is consonant with "a legislative intent to allow the Board sufficient flexibility to oversee state-owned lands and to formulate policies consistent with its duties under the public trust doctrine." State Board of Trustees of the Internal Improvement Trust Fund v. Lost Tree Village Corp., 600 So. 2d 1240, 1245 (Fla. 1st DCA 1992).

The narrow question here is whether the Board of Trustees of the Internal Improvement Trust Fund should have considered the petition for variance and waiver instead of dismissing the petition without examining its merits. Whether an agency should consider a waiver or variance is a question distinct from whether the agency should grant the request. Whether to grant an easement (or take any other specific action) is still another question.

In parading the supposed horribles of subsection eight's requiring the Board to grant utility easements or permission to build docks by default, the majority opinion conflates distinct questions often arising in different proceedings. Absent consolidation with another proceeding, "any proceeding . . . in regard to a variance or waiver shall be limited to the agency action on the request for the variance or waiver."  120.542(8), Fla. Stat. (1997).

When an agency has adopted rules under the Administrative Procedure Act, any person the rules affect has a right to seek a waiver or variance under section 120.542, in my view, and an agency that receives a petition for waiver or variance meeting the requirements of subsection five (and Florida Administrative Code Rule 28-104.002 or other applicable rule) must consider the merits of the petition. I therefore respectfully dissent.

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