State Florida Department Environmental Regulation v. Manasota$288

In this appeal, the Department of Environmental Regulation (DER) challenges a hearing officer's final order invalidating portions of Florida Administrative Code Rule 17-103.170, which had established a charge of 50 cents per page for DER's preparation of records on appeal. Cross-appellant, Manasota-88, Inc., (Manasota), contends that in addition to declaring the rule an invalid exercise of delegated legislative authority, the hearing officer should also have found that: (1) DER had no statutory authority to impose a fee upon an appealing party for preparation of an appellate record, and (2) the rule was arbitrary and capricious. We agree with the hearing officer and affirm on all points. Appellee/cross-appellant, Manasota, is a not-for-profit environmental protection organization that is frequently a party to DER licensing proceedings. In a recent appeal from a DER final order, Manasota, as the appealing party, was charged 50 cents per page by DER for preparation of the record on appeal. This prompted Manasota to file a petition pursuant to section 120.56, Florida Statutes, to have Rule 17-103.170(2), which authorized the charge, declared invalid.1{/Cite} Following a formal hearing on Manasota's petition, the hearing officer declared the rule to be an invalid exercise of delegated legislative authority because it ""enlarged, modified or contravened"" the specific provisions of law it was designed to implement. This appeal and cross-appeal followed.