CopyCited 8 times | Published | Florida 1st District Court of Appeal
...Section
403.121(3), Florida Statutes (1975), enacted in 1967, provides that every order of the department is reviewable only in accordance with the Administrative Procedure Act. In 1975, by Section 20.261(3), Florida Statutes (1975), the legislature created the Commission and by Section
403.804(1), Florida Statutes (1975), provided that "The commission shall also act as an adjudicatory body for final actions taken by the department, except for those appeals and decisions authorized in ss....
...Section
120.53(2)(b), Florida Statutes (1975). The rules were published by the Secretary of State and are set forth in Chapter 17-1, Part III of the Florida Administrative Code. Section
120.55(1)(b), Florida Statutes (1975). The provisions of Sections 403.171 and
403.121(3), and
403.804(1) are inconsistent....
...State,
101 So.2d 833 (Fla. 1st DCA 1958). Otherwise, we must resolve the inconsistencies in favor of the last expression of the legislative will. Cable-Vision, Inc. v. Freeman,
324 So.2d 149 (Fla. 3d DCA 1976). The inconsistencies of Sections 403.171 and
403.121(3), and
403.804(1) can be reconciled by construing them to provide for judicial review of final agency action after review of the action by the Commission. This construction also gives effect to the last expression of the legislature. We so construe them. Having so construed Sections 403.171,
403.121(3) and
403.804(1), the review action by the Commission must be exhausted before judicial review can commence here....
CopyCited 5 times | Published | District Court of Appeal of Florida
...Since the issues presented by the three cases are closely related and the cases have all been consolidated, we will address only those procedural issues raised by the parties, making no attempt to resolve any apparent problem regarding what constitutes final agency action when both F.S.
120.54(4) and F.S.
403.804 are involved....
...ring officer. We accordingly reverse and remand for that determination. To facilitate disposition on remand, we further hold that the hearing officer correctly ruled that the economic and environmental impact statements prepared in compliance with F.S. 403.804(2) satisfies the requirements of that law and that the economic impact statement sufficiently satisfies the requirements of F.S....
...Those proposed findings which fall in such a category may be rejected by a simple statement that they are immaterial or irrelevant. * * *" The other points raised in Case No. FF-95 may be affected by our above holding regarding the required degree of proof, therefore, they need not be addressed here. *764 F.S. 403.804(2) provides that when any proposed standard that would be stricter or more stringent than one which has been set by federal agencies pursuant to federal law or regulation, the Environmental Regulation Commission (Commission) shall direct t...
...Inasmuch as the Commission "approved" the rule on December 2, 1976 prior to the entry of the hearing officer's order on January 31, 1977, the Industry urges that the Commission's action was a nullity and that the rule was not therefore properly before the Governor and Cabinet for final action in accordance with F.S. 403.804(2)....
...120.54(4)(c) which states that "No rule shall be adopted until 21 days after the notice required by subsection (1) or until the hearing officer has rendered his decision, as the case may be." The controversy revolves around a construction of the word "adopted" as used in F.S.
120.54(1)(c) and as used in F.S.
403.804(2) which statutes must, in this type of case, be construed so as to harmonize....
...A unique additional step in the adoption process applicable to the Department and Commission arises when (as in the instant case) a proposed environmental standard is more stringent than a federal standard. In such a case, the Commission initially adopts a rule subject to final action by the Governor and Cabinet. (F.S. 403.804(2))....
...The statute clearly contemplates that a public hearing may extend beyond forty-five days from the date of notice of proposed rulemaking. If the hearing officer rules in favor of the validity of the proposed rule, then the public hearing would be held and the adoption process could continue on to its ultimate conclusion. F.S. 403.804(2) provides that the Commission must require the Department to prepare an economic and environmental impact analysis prior to the adoption of rules that are more stringent than existing federal standards....
...APA. Where two statutes deal with a similar subject matter, the court must make every effort to find a harmonious construction of both statutes. ( Mann v. Goodyear Tire & Rubber Co.,
300 So.2d 666 (Fla. 1974)) The Industries correctly contend that F.S.
403.804(2) can only be read harmoniously with F.S....
...f the Proposed Rule. Such interpretation of the law leads to consistency among various provisions of the APA and between the APA and other related statutes. Since the Commission had never validly adopted the proposed rule (standard) as required by F.S. 403.804(2) it was prematurely considered by the Governor and Cabinet....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...0 days after filing of the transcript of any hearing held subject to section
120.57. Fla. Admin. Code R. 17-1.120, .121. In 1979, but now no longer, Department declaratory statements were subject to review by the Environmental Regulation Commission, section
403.804(1), composed of seven citizens appointed by the Governor and confirmed by the Senate, "representative of, but not limited to, interested groups including agriculture, real estate, environmentalists, the construction industry, and lay citizens." Section 20.261(3), Fla....
CopyPublished | Florida 1st District Court of Appeal | 1980 Fla. App. LEXIS 18157
...mental Regulation Commission, of an order of the Department of Environmental Regulation. The motion for rehearing alleges this court failed to consider appellants’ argument, contained in their response to the motion to dismiss, that the portion of Section 403.804(1), Florida Statutes, which makes the Commission the “adjudicatory body for final actions taken by the Department” contained no standards to guide the administration of the statute by the agency, and is therefore unconstitutional under Article II, Section 3, Florida Constitution....
...Statutes, to which the Department is subject. The statutory language in question is properly construed together with Rule 17-1.72, Florida Administrative Code. In Peterson v. Department of Environmental Regulation,
350 So.2d 544 (Fla. 1st DCA 1977), Section
403.804(1) and Chapter 17-1, Florida Administrative Code, were before the court, and the opinion stated there would be “judicial review of final agency action after review of the action by the Commission.” After the adoption and publication of the rule and the decision in Peterson , Section
403.804(1) was re-enacted. Section 403.-804(1), Florida Statutes (1979). In addition, the 1980 amendment of Section
403.804(1) by Chapter 80-66, Laws of Florida, repealed the adjudicatory function of the Commission and simultaneously provided that the amendment “shall not affect any appeals pending before the Commission .” (emphasis ours). That language may be regarded as legislative reaffirmance of the appellate nature of the Commission’s adjudicatory function. We conclude that appellants’ challenge to the constitutionality of Section
403.804(1) is without merit, and find no necessity for express treatment of other arguments in appellants’ motion....
CopyPublished | Florida 3rd District Court of Appeal | 1995 WL 271012
...g where the Commission has exclusive authority over water quality standards. We agree. The powers and duties of the Commission are delineated as follows: "The commission shall exercise the exclusive standard setting authority of the department... ." § 403.804(1), Fla....
...Additionally, the Secretary's powers and duties are limited as follows: "The Secretary shall have the powers and duties of the heads of departments ... except that the Environmental Regulation Commission shall exercise the exclusive standard-setting authority pursuant to s.
403.804." §
403.805(1), Fla....
...denied the Miccosukees' petition for rulemaking of a numerical water quality standard without first submitting the petition to the Commission as clearly and mandatorily required by the pertinent provisions of the Florida Statutes. §§
403.803(13),
403.804(1),
403.805(1), Fla....
CopyPublished | District Court of Appeal of Florida | 11 ERC 2006, 11 ERC (BNA) 2006, 1978 Fla. App. LEXIS 17262
...The petitioner has as its members the electric power companies of Florida. Respondents are the Governor and Cabinet, the Environmental Regulation Commission and the Department of Environmental Regulation. This court is called on to construe in two respects Section 403.804(2), Florida Statutes (1975), which reads: The commission shall direct the department to have a study conducted of the economic and environmental impact which sets forth the benefits and costs to the public of Any standard existing on...
...Petitioner urged that the Department be ordered to conduct economic and environmental impact studies on certain state standards that should have been identified as more stringent than federal standards. The Cabinet granted a motion to strike the petitioner’s brief. It found: Under Section 403.804(2), the Governor and Cabinet have been granted only the power to “accept, reject, modify or remand” standards submitted by the Environmental Regulation Commission which the Commission has determined to be more stringent than federal standards....
...The Commission was also requested to issue an order identifying those department standards not found to be stricter than federal standards. We find the Governor and Cabinet correctly refused to consider whether additional state environmental standards were more stringent than corresponding federal standards. Section 403.804(2) gives the Governor and Cabinet authority to review only those regulations submitted by the Commission....
...These independently set national standards can be directly compared with the state ambient air standards. This was done by the Department and it was determined certain state standards were stricter than their federal counterparts, requiring, therefore, a study under Section 403.804(2)....
...l temperature of the stream and the level of activity in the plant. We cannot say the Department erred in not finding the Florida standards more stringent. We find no error in the Department’s determination of those standards requiring study under Section 403.804(2)....
