April 9, 1977
RE: City of St. Petersburg v. SWFWMD
Case No. 76-1435, Second District Court of Appeal
(Cosme-Odessa/Section 21 Wellfields)
Here are the materials I have prepared to assist in handling
the oral argument on Monday, April 11, 1977.
I believe that the attached Statement Of Facts And Case from
our Brief will serve to refresh your memory as to the
chronology of events below.
The second document attached is a summary of the various
arguments of the parties to this appeal.
I hope that you will find it to be helpful. It turned out
to be lengthier than I had anticipated.
TABLE OF CONTENTS
STATEMENT OF FACTS . 1
POSTURE OF THE CASE . . 2
RELEVANCY OF WATER CROP DISPUTE .. . 3
VALIDITY OF WATER CROP RULE .. ..... 4
EXISTING USE DISPUTE .. . . .. 5
GALLONAGE LIMITATION AGREEMENT . 6
ARE THE ORDERS SUPPORTED BY
COMPETENT EVIDENCE .. . ...... 7
ESTOPPEL ARGUMENT . ....... 8
FLORIDA BEVERAGE CORPORATION, INC.
v. WYNNE ........ ......... 9
STATEMENT OF FACTS
The SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT is a
public corporation which was created by the Legislature in
1961. Ch. 61-691, Laws of Florida.
As used in this Brief the SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT will be referred to as "DISTRICT," and
the Petitioner, CITY OF ST. PETERSBURG, will be referred to
as "CITY." References to the Transcript portions of the
Record will be designated "Tr. ." References to materials
other than transcripts in the Record will be designated
"R. ." Selected portions of the Record On Appeal and
other pertinent items of public record have been compiled in
an Appendix at the end of this Brief. References to the
Appendix shall be designated "App.-pg._ ."
Pursuant to Section 373.142, Florida Statutes, 1967, on
October 30, 1968, the DISTRICT created a water regulatory
district known as the SOUTHWEST FLORIDA WATER MANAGEMENT
DISTRICT (Regulatory) which will be referred to as "SWFWMD(R)."
The Cosme-Odessa Well Field and the Section 21 Well
Field are well fields owned and operated by the CITY. They
are located in the northwest portion of Hillsborough County,
Florida, in a watershed basin or subdistrict known as the
Northwest Hillsborough Basin of the DISTRICT. These well-
fields are used to provide potable water for residents of
the CITY and other persons in Pinellas County, Florida.
Hydrogeologically, this basin overlies surficial deposits
of sand and clayey sand constituting a water table aquifer
beneath which exists a confining layer of clay and sandy
clay. This confining layer overlies an artesian limestone
aquifer known as the Floridan Aquifer.
In the Floridan Aquifer water levels are measured by
reference to potentiometric pressure or levels. A potentio-
metric level is the elevation to which water from the aquifer
will rise in a cased well which extends down through the
confining layer and into the aquifer.
The wells in the Cosme-Odessa and Section 21 Wellfields
draw their water from the aquifer by means of a series of
large pumps. Of necessity, as pumping continues the poten-
tiometric level is lowered in the vicinity of the well.
This creates a cone of depression. Should pumping increase,
the cone of depression deepens. Conversely, should pumping
rates decrease, the cone of depression tends to rise. As a
result of this phenomenon, wellfield pumping rates may be
regulated by means of observing changes in potentiometric
surfaces in observation wells situated in the vicinity of
the wellfield. Lowering of the potentiometric surface by
pumping can increase the rate at which water "leaks" from the
water table aquifer, through the confining layer, and into the
artesian aquifer, the net effect of which is to dewater the
shallow sands. This can also cause lakes to be drawn down and
even to be completely dried up.
The Cosme-Odessa and Section 21 Wellfields were first
regulated in 1972. The SWFWMD(R) established regulatory
levels in the potentiometric surface below which the CITY
could not pump. This regulation is contained in SOUTHWEST
FLORIDA WATER MANAGEMENT DISTRICT (Regulatory) Order Number
72-1. App.-pg. 40.
The Florida Water Resources Act of 1972 (Ch. 72-299,
Laws of Florida) expanded the DISTRICT'S regulatory responsi-
bilities and powers. This Act permitted the implementation
of a permitting system to regulate water withdrawals within
the DISTRICT'S boundaries without meeting the same procedural
rules as formerly required by Section 373.152. The Act
became effective July 1, 1973.
It should be noted that the northwest region of Hills-
borough County has a history of water resource related
problems. Indeed, in July of 1973, the DISTRICT was compelled
to take the extraordinary step of declaring the existence of
a water shortage and imposing conservation measures upon con-
sumers in the area. See Order No. 73-1D, App.-pg. 46
Part II of The Florida Water Resources Act of 1972
became effective July 1, 1973. Ch. 72-299, Part VI, Section
8, Laws of Florida. This part of the Act dealt with the
implementation of a consumptive use permitting system to
regulate the consumptive use of water.
The DISTRICT, SWFWMD(R) and the CITY entered into an
Agreement in November of 1973. Pinellas County, Pasco
County and Hillsborough County were also parties to the
Agreement which was entered into subsequent to the effective
date of Part II of The Florida Water Resources Act of 1972,
but prior to the implementation by the DISTRICT of the
consumptive use permitting system. This Agreement, known as
the "Five Party Agreement," provided in part that new regu-
latory levels should be established for the Cosme-Odessa and
Section 21 Well Fields of the CITY. The Agreement provided
further that a maximum pumping cap be established for these
well fields. The total maximum withdrawals from both well
fields combined could not exceed 168 million gallons per
week. App.-pg. 34 Pursuant to this Agreement, Order No.
74-11R was entered by SWFWMD(R). App.-pg. 13
The DISTRICT implemented its consumptive use permitting
system on January 1, 1975. The permitting procedure, guide-
lines, and requirements are set forth in Chapter 16J-2,
Florida Administrative Code, hereinafter abbreviated for
convenience sake as F.A.C..
In October of 1975 CITY filed applications with the
DISTRICT to obtain Consumptive Use Permits for the Cosme-
Odessa Well Field and the Section 21 Well Field. Application
No. 7500003 dealt with the Section 21 Well Field. Applica-
tion No. 7500004 dealt with the Cosme-Odessa Well Field.
A substantial amount of confusion existed throughout
the proceedings below concerning the exact quantity of water
the CITY desired to have permitted. The initial applications
requested permit approval for an annual average of 9 million
gallons per day from each well field. However, the CITY's
Director of its Water and Sewer Department indicated by letter
of October 29, 1975, that the applications were filed to
obtain authorization to pump based upon the previous regula-
tory levels, modified to permit a five (5) foot seasonal
variation, and modified further to remove the then existing
cap of 168 million gallons per week. R-pg. 111 .
The application for permit approval on the Cosme-Odessa
Well Field was considered by the DISTRICT's Board at a
public hearing November 12, 1975.
The testimony presented by the CITY indicated that were
the Cosme-Odessa Well Field regulated under the previous
regulatory levels, without regard to a maximum cap, and
allowing for a five (5) foot seasonal variation, the well
field could produce up to 14 million gallons per day. Tr-pg. 60
This represents an increase of some two (2) million gallons
per day over and above that authorized by the then existing
pumping cap rate of 168 million gallons per week for both
The testimony also indicated that the need for author-
ization to pump up to 14 million gallons per day from the
Cosme-Odessa Well Field would exist for only one or two or
three months during the dry season. Tr-pg. 60 and pg. 63 .
Further the testimony established that subsequent to
the regulation of the Cosme-Odessa Well Field, lake levels
and potentiometric surfaces had risen in comparison to pre-
regulatory levels. Tr-pg.54 through pg.59.
At the conclusion of the November 18th hearing, the
Board voted to permit the continued withdrawals by the CITY
based upon the previous regulatory conditions until con-
sideration could be given by the Board to both Cosme-Odessa
and Section 21.
The CITY's combined application for both well fields
was scheduled for hearing January 14, 1976. On the date of
the hearing, it became apparent that Notice of the proceed-
ings had not been given with respect to Cosme-Odessa. A
question concerning the amount of the proposed withdrawal
also existed at that time. Accordingly, the hearing was
continued so that proper notice could be given. App.-pg.49
By letter dated January 16, 1976, the CITY amended its
application for both Cosme-Odessa and Section 21 Well Fields.
The amendment requested permit approval to withdraw an annual
average of 19 million gallons per day from Cosme-Odessa and
an annual average of 18 million gallons per day from Section
21. R.-pg.14(A). This would be equivalent to a combined
weekly annual average withdrawal of 259 million gallons from
both well fields combined. The amendment requested addi-
tionally that permit approval be given to maximum withdrawals
of 22 million gallons per day for each well field. R.-pg.14(A).
A lengthy public hearing on both applications was con-
ducted before the DISTRICT's Governing Board February 18,
1976. Although the bulk of the testimony related to the
Section 21 Well Field alone, the transcript of the November
proceedings on Cosme-Odessa were incorporated into the
record as Exhibit 26. R.-pg.145 .
The testimony and evidence established the following:
1. During the calendar year preceding January 1, 1975,
the CITY pumped approximately 9 million gallons per day, on
an annual average, from each well field. Tr.-pg.121 and 122.
2. Prior to the establishment of regulatory levels in
early 1974 pursuant to Order No. 74-llR, the CITY pumped a
great deal more water from these wellfields. The pumping
record for these fields is shown in the Appendix at page 11/12.
3. Prior to the establishment of the earlier regulatory
levels, potentiometric surfaces, water tables and lake levels
were declining in the area. Tr.-pgs. 140 and 234.
4. Lower potentiometric surfaces, water tables and lake
levels were caused by the large withdrawal of water from these
fields by the CITY, and changes in surface drainage resulting
from urbanization of the area, and less than average rainfalls.
Tr.-pg. 204, 205, 206 and 236.
5. Subsequent to the establishment of the earlier regu-
- latory levels, potentiometric surfaces, water tables and lake
levels in the area were rising as a result of the CITY'S diminished
pumping rate, improved surface water drainage patterns and more
normal rainfall. Tr.-pgs. 134, 236, and 240.
6. Based upon rainfall amounts in 1974 and 1975, the
CITY could pump approximately 12 million gallons per day on an
annual average basis from each wellfield without exceeding the
previously established regulatory levels. Tr.-pgs. 191 and 265.
7. Pumping rates may exceed 12 million gallons per day
in each wellfield for short periods of time without violating
the then existing regulatory levels. Tr.-pg. 154.
8. The CITY does not anticipate a need for increased
pumping from Cosme-Odessa and Section 21 because of the water
conservation measures already underway in the CITY, and because
of the limited future development predicted within the CITY.
Tr.-pgs. 17, 133, 287, and 288.
9. Pumping based upon the then established regulatory
levels would promote the continued improvement in potentiometric
levels, shallow water levels and lake levels. Tr.-pgs. 134 and 194.
10. The CITY needs to be able to pump approximately 3 million
gallons per day (21 million gallons per week) more than was
presently authorized under the 168 million gallons per week cap
for approximately three weeks each year during the dry season.
Tr.-pgs. 264, 278 through 281.
11. The opinion of the residents in the vicinity of these
wellfields was uniform in its opposition to increases in pumping
rates by the CITY. Letters and telegrams opposing increased
withdrawals were received by the DISTRICT. The DISTRICT received
none in support of increased withdrawals. R.-pgs. 115, 116, 125,
126, 128, 129, 131, 132, 133, 135, 137, 138, 139, 140, 141, 142,
On August 4, 1976, the DISTRICT entered Orders No. 76-1
and 76-2 granting Consumptive Use Permits for both wellfields to
the CITY. App.-pgs. 1 through 10. These are the Orders the CITY
seeks to have reviewed in these proceedings.
POSTURE OF THE CASE:
The proceedings pending in the Second District Court
of Appeal have been characterized by the parties as a petition
for writ of certiorari. In reality, the proceedings actually
should be called a petition for review under Section 120.68,
The alignment of the parties:
Parties seeking to set aside the consumptive
use permits/orders on Cosme-Odessa Wellfield
and Section 21 Wellfield or seeking to have
declared invalid the District's water crop
City of St. Petersburg, Petitioner
Pinellas County, Amicus Curiae
Parties seeking to support the subject
consumptive use permits and the water crop
Southwest Florida Water Management District,
Hillsborough County, Amicus Curiae
Pasco County, Amicus Curiae
ISSUE I: VALIDITY OR INVALIDITY OF WATER CROP RULE IS
IRRELEVANT TO THE ISSUES BEFORE THE COURT?
(Note we raised this argument by Motion To
Strike Point I of the City of St. Petersburg's
Brief. It was our position in the Motion that
the validity or invalidity of the water crop rule
(16J-2.11(3), Florida Administrative Code, was
not at issue in the administrative proceedings
before the Governing Board of the District. We
therefore took the position that a determination
of this issue was irrelevant and unnecessary to
the issue before the Court, we further contended
that the City lacked standing and that this
particular issue had not been preserved in the
City's Petition For Certiorari. You will recall
that the Court denied our Motion To Strike
without prejudice to arguing the matters raised
therein in our main Brief.)
1. Even though the permits that were granted
authorized the City to withdraw up to 168 mg from both
wellfields per week, and even though this amount exceeds
the water crop by a factor of 18, the controlling limita-
tion as testified to at the hearing is the regulatory level,
not the specific gallonage limitation or cap. The water
crop theory was used to establish the regulatory levels,
therefore the validity or invalidity of the water crop theory
is properly at issue in this case.
2. The record of the proceedings below is
replete with repetitive references to the water croptheory.
If the water crop theory was inapplicable and irrelevant to
the City's applications for consumptive use permits, why
was the concept even mentioned below?
3. The District's staff actively used the water
crop theory in their considerations and recommendations to
1. Pinellas County did not argue this issue.
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT:
1. We have taken the position that because the
subject consumptive use permits authorize the withdrawal of
168 million gallons per week, and because this withdrawal is
more than 18 times larger than the amount which could be
withdrawn if the withdrawal were limited strictly to the
water crop, it's patently obvious that the water crop limita-
tion in Rule 16J-2.11(3), F.A.C., was not applied in the
2. It is our position that the Court should
refrain from deciding unnecessary and abstract questions
that were not at issue or applied in the proceedings below.
This exceeds the proper scope of judicial review of adminis-
trative proceedings, even if one were to conclude that such
scope of judicial review is as broad as that available on
3. We found it useful to argue as well that the
Court should be aware of the type of proceeding that occurred
below. What we are dealing with is the propriety or impro-
priety of the issuance of certain administratively required
permits. We have not arrived in the District Court of Appeal
as a result of proceedings initiated or triggered by the
adoption of a rule. Nor have we arrived in the District Court
of Appeal as a result of an administrative determination
below of the validity of the challenged rule. (This could be
pursued by the City under Section 120.56, Florida Statutes,
if it desired) Nor have we arrived in the Second District as
a result of a declaratory judgment addressing the validity of
the rule rendered by one of the Circuit Courts of the State.
(This, too, could be pursued by the City below, Section 120.73,
4. It is misleading for the City to claim that the
water crop theory was at issue below because it was used to
determine the regulatory levels for these wellfields. This
misleads the Court because one could conclude that the regula-
tory levels were established at levels which would prevent
the withdrawal of water in excess of the amount allowed under
the water crop theory. The testimony and all of the evidence
below established conclusively that the regulatory levels
established in the consumptive use permits would permit pumping
in each wellfield at rates in excess of 12 mgd. Consequently,
the regulatory level itself exceeds the water crop by a factor
of 18 + .
5. What the City has done is to lift itself by
its bootstraps into a position to challenge a rule that was
not at issue or applied in the proceedings below.
1. Hillsborough County contends that the City of
St. Petersburg lacks standing to attack the water crop rule.
(16J-2.11, F.A.C.). The County points to the lack of an
injury in fact to the City and asserts further that the interest
sought to be protected by the City is not arguably within the
zone of interest protected by the statute.
2. It is evident that the subject permits were
issued under subsection 5 of Rule 16J-2.11, F.A.C. ( the
Board for good cause shown may grant exceptions to the provi-
sions to paragraphs 2, 3 and 4 above when after consideration
of all data presented, including economic information, it finds
it consistent with the public interest).
3. NOTE: Hillsborough County views the subject
permits from a slightly different point of view. It is
Hillsborough County's position that both permits granted to
St. Petersburg the right to withdraw all of the water for which
they had applied; the 168 million gallon per week cap and the
regulatory level limitation are regarded by Hillsborough County
as reasonable conditions imposed by the District to assure
compliance with the overall objectives of Chapter 373 and to
prevent harm to the water resources of the area (Section 373.219(1),
Florida Statutes.) "in light of the undisputed fact that
the full extent of Petitioner's application was granted, it is
immaterial, moot, or, at best, harmless error whether
Respondent may have erred in determining the existing use."
(Hillsborough County Brief, page 4).
1. Pasco County filed a Brief adopting the Briefs we
filed and the Brief filed by Hillsborough County. Two specific
grounds were urged by Pasco County to support our consumptive
use permits, to-wit:
(1) Since the City's permits were granted
as exceptions under the provisions of Section 16J-
211.5, F.A.C., the City lacks standing to attack
Section 16J-2.11(3), F.A.C., and
(2) The City has failed to show that the
Orders under review are not supported by substantial
ISSUE II: WHETHER SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
EXCEEDED ITS DELEGATED AUTHORITY BY ADOPTING/
ENFORCING WATER CROP RULE 16J-2.11(3)?
1. St. Petersburg's argument stems from the
proposition that the power to promulgate rules must be
circumscribed by legislatively enacted standards and guide-
lines in order to maintain constitutionality. If the standards
and guidelines are not sufficient, the promulgation of a rule
by an administrative agency is equivalent to "delegation of
power to make the law", which is unconstitutional.
2. The City engaged in lengthy statutory
construction of Chapter 373 to reach the conclusion that the
standard and the guideline to govern promulgation of rules
by the District in Chapter 373 is the concept of "reasonable
beneficial use". In the City's view, reasonable beneficial
use is the only limitation and the only standard by which one
should judge whether the water crop rule was authorized. Of
course, in the City's view, because the water crop rule is
more restrictive than the reasonable beneficial use limitation,
the rule is invalid. They argue that reasonable beneficial
use, as a concept limiting the right to withdraw water, must
be balanced and determined on a case by case basis, and that
the use of a predetermined arbitrary standard is necessarily
different in kind and more restrictive.
3. The City also contends that the District Court
should concur in the findings of the "legislature", which on
three separate occasions has rejected the water crop theory.
(The City is referring, of course, to the Joint Administrative
Procedures Committee, which, of course, is not the "legislature".)
Of significance here, is an argument made by the City that our
failure to respond to this particular argument in our main
Brief should lead the Court to conclude that our argument is
suspect. As the City indicated at page 15 in their reply brief:
"the District has also refused, in this appeal, to address the
Administrative Procedures Committee's findings. If their
authority is as solid as they contend, the Committee's findings
could surely be distinguished or explained. Yet, if the
District attempted to do so, they would then have to explain
why they have worked to make "water crop" acceptable to the
Committee rather than refusing to amend or repeal the rule as
allowed in Florida Statute 120.545(2)."
4. St. Pete contends that although a property owner
at common law had an unqualified right to pump underlying
percolating water, today, he would be limited in his
withdrawal to an amount that is a reasonable and beneficial
use of such water. The use of water crop theory by the
District changes the law of Florida further by tying water
withdrawal to the amount of land owned and imposing a negative
aspect in the application process.
5. The water crop rule has the effect of creating
a presumption of "guilty until proven innocent" which clashes
with the provisions of Section 373.036(2), Florida Statutes,
which speaks in terms of attaining "maximum reasonable beneficial
use of water".
A. Pinellas County's Brief, of some 47 pages in
length, together with a two volume appendix, is devoted solely
to an attack on the validity of the water crop rule in 16J-2.11,
and in the other rule relating to computation of the amount of
water required to pass through the confining layer between the
shallow aquifer and the Floridan aquifer in computing head
B. The first volume of the appendix consists
exclusively of minutes maintained by the Joint Administrative
Procedures Committee on these rules together with applicable
items of correspondence. It is an attempt on the part of
Pinellas County to bring to the attention of the Court every-
thing that occurred in Tallahassee in connection with these
water crop rules. NONE OF THESE MATERIALS WERE PART OF THE
RECORD BELOW OR WERE INTRODUCED, ARGUED, OR OTHERWISE DISCUSSED.
C. The second volume of the appendix consists
exclusively of the report entitled Florida's Water Resources An
Evaluation And Management Philosophy prepared by Black, Crow &
Eidsness, Inc., engineers, for Pinellas County, Florida. This
particular report is quoted extensively by John Allen in his
argument. THIS REPORT WAS NOT PART OF THE RECORD BELOW, NOR
WAS IT DISCUSSED, ANALYZED, OR REVIEWED. None of the people who
prepared that report were present and testified or were subjected
to cross-examination. The statements John Allen makes in his
argument may or may not be true, and the District's hydrologists
may or may not agree with those comments.
D. It has been our position all along that
the water crop rule was not challenged or at issue below.
John Allen has taken this opportunity to bring all guns to
bear on this point at the appellate level. If all of these
guns had been brought to bear below, we would have had an oppor-
tunity to respond in kind, introducing into the record our own
expert testimony, opinions, and evidence. In some manner I
think it is important that this be brought to the attention to
PINELLAS COUNTY ARGUMENTS:
1. The underlying premise in the Pinellas County
argument is that Florida is a water rich state. Use of the
water crop rule to limit water withdrawals leads to "less than
full utilization of the resource". Relying upon the Black,
Crow & Eidsness study, Pinellas County argues that the water
crop theory may be useful in some circumstances, especially in
analyzing water usage patterns in an area or water shed basin.
However, "application of an arbitrary figure of 1000 gallons
per day per acre of land is hydrologically unrealistic. Each
parcel of land of each wellfield must stand on its own hydrological
merits and not be subjected to an arbitrary formula based upon
the amount of land owned, leased, or otherwise controlled".
They find the theory harmful when dealing with a specific
parcel of land. This results from the possibility that a
specific tract of land may have different geological charac-
teristics, streamflow patterns, different evaporation and
transpiration rates, etc.
2. Pinellas County argues that the long term
effect to the rule leads to results far beyond and different
in kind from the purposes of Chapter 373, including:
(a) lower residential density rates;
(b) the establishment of a connection
between water use to land ownership pattern,
creating demand for large tracts of land
in order to insure compliance with the rule;
(c) if the rule is applied across the board,
it will lead to bad water management practices
because in some circumstances reducing the
aquifer below the water crop of the land is
necessary so that water which might otherwise
runoff, can be absorbed and preserved, thus
decreasing the rate of ground water outflow
to sea and decreasing evapotranspiration loss,
while providing storage area for rainfall that
would otherwise be discharged to sea.
3. Pinellas County, too, relies upon the activities
of the Joint Administrative Procedures Committee to support its
contention that the water crop rule is an invalid exercise of
(NOTE: Both John Allen and Carl Linn tend to
blur the distinction between the Joint Administrative Procedures
Committee and the entire collegiate Florida legislature. A
possible response to the argument made by both Pinellas County
and Carl Linn, insofar as the Joint Administrative Procedures
Committee objections are concerned, is to remind the Court that
notwithstanding the objections of the Committee, the legislature
in 1976 took no action to override or overrule the existing
water crop rule. That, to me, seems to indicate better what
the entire legislature thinks of the water crop rule.)
4. In support of its argument, Pinellas County cites
several distinct legal principles in order to provide foundation
for its statutory construction of Chapter 373. It should be
pointed out that at no point in the Brief does Pinellas County
attempt to deal with the cases we cite in our Brief for the
proposition that where the empowering provisions of a statute
state simply that an agency may make such rules and regulations
as may be necessary to carry out the provisions of the act, the
validity of the regulations promulgated will be sustained so
long as they are reasonably related to the purposes of the
enabling legislation and are not arbitrary or capricious.
The legal principles cited by Pinellas County
are as follows:
(a) if reasonable doubt exists as to the
existence of administrative authority for the
promulgation of the rule, the agency must be
held not to have been delegated the power.
(b) any reasonable doubt of the existence
of any particular power must be resolved
against the administrative power.
(c) administrative agencies may promulgate
regulations which specifically carry out the
powers conferred upon them, but they are not
allowed to take liberties with such powers
and may not promulgate regulations where
statutes do not specifically permit them to do
(d) administrative agencies may exercise
power in accordance with the statutes bestowing
such powers, but only in the mode prescribed by
(e) administrative authority must be made to
affirmatively appear before it can be legally
(f) exercise of administrative authority must
be authorized by controlling law and must be
reasonable and appropriate in the method and
extent of its application.
5. Statutory construction of Chapter 373 v. water
Pinellas County in analyzing and attacking the
water crop rule interprets some of the provisions in Chapter 373
differently than do we.
(a) The starting point for the Pinellas County argu-
ment is that there exists at no place in Chapter 373 specific
authorization for the adoption of the water crop rule. Rather,
the power to legally adopt such a rule must be "inferred". This
is regarded as a weakness in our argument by Pinellas County.
(b) The adoption of the water crop rule is deemed
inconsistent with Section 373.042, Florida Statutes, which
establishes and requires the District to establish minimum flows
and minimum water levels. This latter section is regarded by
Pinellas County as directing the District to maximize withdrawals,
not to minimize withdrawals by using a water crop theory.
(c) Pinellas County argues that the water crop rule
is inconsistent and operates to change the effect of the
reasonable beneficial use doctrine in Florida water law. At
common law, Pinellas County argues that a landowner had an
unqualified right to pump from his land the underlying perco-
lating water. Pinellas County acknowledges that this rule was
modified in Florida to the extent that a landowner is limited
to withdrawing all water he wishes so long as such withdrawal
constitutes a reasonable and beneficial use of such water. An
unreasonable use is regarded by Pinellas County as being
defined in law to be a use which injures in some fashion
adjoining lands. Pinellas County argues that the application
of the water crop theory completely changes the reasonable
beneficial use doctrine. This change in the doctrine is deemed
equivalent to a change in the present state of the law without
sanction with the legislature. (NOTE: Pinellas County is
deliberately misstating applicable provisions of Chapter 373.
In my view, a landowner in Florida no longer has the right to
withdraw all the water from his land he can reasonably and
beneficially use without meeting the specific statutory criteria
in Chapter 373 relating to consumptive use permits for new or
existing uses. The criteria which must be met by the landowner
who wishes to consumptively use water include other factors over,
above and beyond reasonable beneficial use of water.)
(d) Pinellas County also argues that landowners
have property rights in their ability to withdraw and consume
water. The adoption of the water crop rule impaired this right
and infringed the common law property rights of the landowners.
This is deemed in contravention of Section 373.171, Florida
Statutes, and inconsistent with Section 373.226(2), Florida
(e) The fundamental argument of Pinellas County
revolves around the connection that is established by the
water crop rule between land ownership and consumptive use of
water. In Pinellas County's view, limiting quantities of
water that can be consumptively used solely on the basis of
the amount of land under common ownership, is beyond the power
delegated to the District by the legislature.
(f) NOTE: One of the weaknesses in John Allen's
Brief is that at no point in the Brief, despite its length, does
he attempt to deal with the relation between 16J-2.11(3) and
16J-2.11(5). This, of course, is the key to our own argument.
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT:
1. Although it is our position that the validity or
invalidity of the water crop rule should not be determined
in these proceedings, we did include (necessarily)an argument
on this point in our main Brief. (See Part V of Brief of
Respondent). As a starting point, we would concur with the
statements of many of the other parties that under the Admin-
istrative Procedures Act no agency has inherent rule making
2. However, we depart from the arguments of Pinellas
County and the arguments of the City of St. Petersburg in
evaluating the impact of Section 373.113, Florida Statutes.
This section was part of the Florida Water Resources Act of
1972 and reads as follows:
"In administering the provisions of this Chapter
the Governing Board shall adopt, promulgate, and
enforce such regulations as may be reasonably
necessary to effectuate its powers, duties, and
functions pursuant to the provisions of Chapter 120."
The law seems well established in Florida that where,
as here, the empowering provisions of a statute state simply that
the agency may make such rules and regulations as may be necessary
to carry out the provisions of the act, the validity of the
regulations adopted under that provision will be sustained so
long as they are reasonably related to the purposes of the
enabling legislation and are not arbitrary or capricious. See
Florida Beverage Corporation, Inc. v. Wynne, 306 So. 2d 200
(1st DCA Fla. 1975).
NOTE: That is essentially our argument we
contend that the water crop rule is reasonably related to the
purposes of the enabling legislation and that the water crop
rule is neither arbitrary nor capricious.
3. It is our position that the water crop rule is
reasonably related to the announced purposes of the Florida
Water Resources Act of 1972, Section 373.016, Florida Statutes,
(b) to promote the conservation, development,
and proper utilization of surface and ground
(e) to preserve natural resources, fish, and
(f) to promote recreational development, protect
public lands and assist in maintaining the
navigabilities of rivers and harbors; and
(g) otherwise promote the health, safety, and
general welfare of the people of this State.
We also argued that the water crop rule is related
to the legislatively promulgated policies established in
Section 373.016(2) and 373.219, Florida Statutes. Moreover,
the water crop rule appears to us to be reasonably and closely
related to the objectives of the state water use plan, des-
cribed in Section 373.036, Florida Statutes.
4. Our argument explained our view of the purpose of
the water crop rule, to-wit to give notice to an applicant
that if a proposed withdrawal is going to reduce the supply
from which it is withdrawn or diverted in an amount exceeding
that which would be replenished by normally anticipated rainfall,
the permit authorizing that diversion will not be issued unless
the applicant establishes that the consumptive use is consistent
with the public interest.
(NOTE: to get to this point we have to
construe 16J-2.11(3) and 16J-2.11(5) together.)
5. We also argued that it is helpful for the Court to
examine the things that the rule does not do.
(a) First, the rule does not establish fixed
standards for the issuance or denial of consumptive use permits.
The availability of subsection (5) within Section 16J-2.11
permits flexibility without changing the burden of proof of
establishing eligibility for the underlying consumptive use
6. We argued that the rule is neither arbitrary nor
capricious because the rule was adopted after consideration of
the announced policies of the Florida Water Resources Act and
does not impinge upon similarly situated parties differently or
1. It is Hillsborough County's view that Chapter 373
contains sufficient legal guidelines to support this rule and
that the District observe these guidelines in entering the
2. The test announced by Hillsborough County is that
in determining whether a particular power is an essentially
legislatively one which cannot be delegated or an administra-
tive or quasi legislative power which may be validly vested
in an administrative agency, the true distinction is between
the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring
an authority or discretion as to its execution, to be exercised
under and in pursuance of the law.
3. Hillsborough County then argues that because the
Orders granting the consumptive use permits address each criteria
established in the statute, to-wit: consistency with the
overall objectives of the District, reasonable beneficial use,
will not interfere with any present existing legal use, is
consistent with the public interest, it is obvious that the
Water Management District strictly adherred to the standards
established by the legislature. Accordingly, the challenged
Orders should be upheld because the invalidity has not been
made to appear by clear and satisfactory evidence.
(NOTE: Hillsborough County's argument on this point
is not strong. I would not rely upon Hillsborough
to handle the oral argument on this point.)
ISSUE III: COMPUTATION OF THE AMOUNT OF EXISTING USE
ST. PETERSBURG'S POSITION:
1. The City addressed this point in two separate
places in its main brief supporting certiorari. Although
never clearly stated, portions of the City's brief tend to
imply that one of the purposes of applying for a consumptive
use permit from the Water Management District was to document
and establish once and for all the amount of the City's
existing use. The City believes that this would support
continued use in like amount in future years, should the need
arise as the result of competing demands on the water resource.
The controversy surrounds and involves the question how
does one go about deciding what an existing use is for a
2. Because the wellfield was under regulation at
the time the City applied for its consumptive use permit, the
City was forced to deal in its main brief with the Five Party
Agreement. The City argues that the Five Party Agreement
amounted to a voluntary curtailment of its existing use rights,
on a temporary basis. The City argues at some length that the
Five Party Agreement did not amount to a waiver of its previously
3. The City, of course, argues that computation of
the amount pumped on an annual average basis over the calendar
year immediately preceding implementation of the consumptive
use permitting program was error. The City is less clear in
stating its reason or rationale for that position. The follow-
ing points are mentioned at one point or another in the City's
(a) Nothing in Chapter 373 explains how to
compute existing use.
(b) The District has not adopted a rule
explaining how existing use is to be computed.
(c) Computation of the amount of existing
use on these wellfields occurred without notice in violation
of due process.
(NOTE: I believe the City should
have known about this when they filled in
their permit application forms in October
(d) Existing use should be calculated based
upon the amount being used on an annual average basis at the
time the Florida Water Resources Act of 1972 became effective,
to-wit: 17.5 mgd for Cosme-Odessa and 16.6 mgd for Section 21
(e) In its Reply Brief the City modified
its position to assert that existing use should be calculated
based upon maximum design capability or maximum historical
pumping rate. The City graciously does not follow through in
pursuing the establishment of existing use to be at the maximum
design capability, rather the City indicates that it will
"settle" for the maximum historical pumping rate, to-wit:
17.5 mgd for Cosme-Odessa; 16.6 mgd for Section 21 Wellfield.
(NOTE: the maximum average yearly
pumping in Cosme-Odessa is not 17.5 mgd,
That happens to be the yearly average for
1972, the maximum average yearly pumping
was really 19.6 mgd, which occurred in 1961.
16.6 mgd is not the maximum yearly average
pumping for Section 21 Wellfield, rather
it is the 1972 yearly average. The maximum
yearly average pumping rate for Section 21
Wellfield was 18 mgd, which occurred in 1969.)
(f) The City attempts to draw an analogy
between the determination of the amount of existing use in
this situation and a series of cases gleaned from a wide
variety of jurisdictions (Connecticut, Pennsylvania, Kentucky,
North Carolina, Maryland, Wisconsin, etc.) which address
similar "grandfather clauses" in a zoning or licensing context.
(One can summarize these cases by saying that the Courts tend
to construe grandfather clauses liberally in order to avoid
injustice and hardships.)
(g) It was error for the District to find as
fact that the existing use was 9 mgd and not also state in the
Order that we were talking about a 9 mgd yearly average, which
is quite a different thing.
(h) Perhaps as a means of providing the Court
with an area for compromise, the City proposed in the last
paragraph of its argument on this point in its Reply Brief,
that it would be appropriate, if the Court chose to do so, to
set the amount of existing use at the amount which could have
been withdrawn and was permitted under the regulatory order
that was in existence before the City applied for its consump-
tive use permit.
(NOTE: .I apologize for the way the
foregoing has been arranged, the City of St. Pete's
argument on this point is extremely scattered and
PINELLAS COUNTY'S POSITION:
1. Pinellas County did not brief this point.
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT:
1. The controlling language: the Governing
Board of the department shall issue an initial permit for the
continuation of all uses in existence before the effective
date of implementation of the part (Section 373.226(2),
The controlling date is the date of implemen-
tation, not the effective date of the enabling
2. Existing use was calculated by determining
the annual average pumping rate for each wellfield over the
twelve months immediately preceding the date the consumptive
use program was implemented, thus allowing for the lapse of
sufficient time to permit variations in demand and seasonal
fluctuations to reflect themselves in the pumping records.
3. It was submitted that computation based upon
the amounts withdrawn during the year ending December 31, 1974
was a reasonable approach. The controlling statutes could
conceivably be construed to mean the amount actually withdrawn
on the day before implementation; or the amount withdrawn
during the week ending December 31, 1974; or the amount withdrawn
during the month ending December 31, 1974. All of these were
rejected by the District in favor of computation over the
entire preceding calendar year.
4. The City knew, or should have known that
existing use was to become computed based on the date of
implementation at the time the City entered into the Five
Party Agreement and subjected itself to initial regulation.
5. Moreover, in the Five Party Agreement itself,
the City acknowledges the pumping limitations (which are
substantially the same as though permitted in the consumptive
use permits) were necessary "in order to obtain the most
beneficial use of the water resources of the State and to
protect public health, safety, and welfare and the interests
of the water users affected."
6. The District's computation of existing use was
well within the range of discretion delegated to it by law.
HILLSBOROUGH COUNTY'S POSITION:
1. Hillsborough County did not brief this point.
ISSUE IV: PROPRIETY OF GALLONAGE LIMITATIONS
ST. PETERSBURG'S POSITION:
1. The City argues that municipal wellfields should
not be regulated by means of gallonge limitations. Rather,
regulations should be by means of monitor levels or regulatory
levels established under the statutory mandate of Section 373.042(2),
2. Essentially, the City's argument is to the
effect that if pumping is limited by a specific number of
gallons, the City will be unable to take advantages of situa-
tions when a surplus of water is available, to-wit: during
flood conditions. This encourages water waste.
3. In the view of the City, regulation by means
of monitor levels which rise and fall makes more sense.
4. Notwithstanding our argument to the contrary,
the City contends that nothing in Chapter 373 suggests that
a "regional water authority" may set maximum limits on with-
drawal by gallonage. On the contrary, monitor levels and
minimum water levels are mentioned specifically. Therefore,
the City concludes that the legislature intended for regulation
to occur by means of monitor levels.
PINELLAS COUNTY'S POSITION:
"- 1. Pinellas County did not brief this point.
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT'S POSITION:
1. We have argued that the establishment of minimum
water levels under Section 373.042(2) is a desirable goal and
one towards which the District is even now working. We concur
that these levels may serve as rough guidelines or parameters
in the granting of permit rights, provided the remaining
requirements of Chapter 373, including Sections 373.223 and
373.226 are satisfied as well.
2. It is our position that Section 373.216 requires
particular quantities of water to be specified in consumptive
use permits. This section reads as follows: ."the depart-
ment may authorize the governing board of a water management
district to implement a program for the issuance of permits
authorizing the consumptive use of particular quantities of
water. Section 373.216, Florida Statutes.
3. Particular quantities of water are mentioned
elsewhere in Chapter 373, in connection with the consumptive
use permitting program, to-wit: .
(a) an applicant is required to specify the
quantity of water desired; Section 373.229(1)(e),
(b) the District is authorized to reserve
particular quantities of water from use by permit
applicants in order to protect fish and wildlife;
Section 373.223(3), Florida Statutes;
(c) applications for less than 100,000 gallons
per day may be considered by the District without a
hearing; Section 373.229(3), Florida Statutes; and
(d) requests to modify unexpired permits
only have to be treated as initial applications if
the proposed modification exceeds 100,000 gallons
per day; Section 373.239(2), Florida Statutes.
4. It is our position that the inclusion of a
pumping cap and the specification of particular quantities
of water in the City's consumptive use permits was not error.
HILLSBOROUGH COUNTY'S POSITION:
1. Hillsborough County did not brief this point.
ISSUE V: ARE THE ORDERS UNDER REVIEW SUPPORTED BY COMPETENT
AND SUBSTANTIAL EVIDENCE?
ST. PETERSBURG'S POSITION:
1. WHILE THE CITY ARGUES THAT THERE IS NO COMPETENT
AND SUBSTANTIAL EVIDENCE IN THE RECORD TO SUPPORT OUR FINDING
THAT THE EXISTING USE WAS 9 MGD, AT NO POINT IN THE CITY'S BRIEF
DO THEY MAKE THE ARGUMENT THAT THE ORDERS BEING CHALLENGED ARE
NOT SUPPORTED BY COMPETENT AND SUBSTANTIAL EVIDENCE. INDEED,
THE REPLY BRIEF FILED BY THE CITY OF ST. PETERSBURG IN THIS
CAUSE COMPLETELY IGNORES THIS POINT EVEN THOUGH WE RAISED IT
AS POINT I IN OUR OWN BRIEF.
PINELLAS COUNTY'S POSITION:
1. Pinellas County did not brief this point.
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT'S POSITION:
1. The City's amended permit applications in effect
requested permission to withdraw 259 million gallons per week.
The permits granted by the District authorize the City to
withdraw no more than 168 million gallons per week except for
a six week interval when pumping is permitted up to 189 million
gallons per week. Additionally, the City must observe certain
regulatory levels below which they must cease pumping.
2. We have argued in our Brief that because the
burden of establishing permit eligibility is on the applicant,
the District's decision to limit the proposed withdrawal to
the amounts just specified is equivalent to a finding on the
part of the District that the permit applicant failed to
establish eligibility for the larger quantities of water.
Stated differently, we argue that the City of St. Petersburg
tailed to carry its burden to show that larger withdrawals are
both consistent with the public interest and for a reasonable
3. Of course, this particular finding must be
supported by substantial competent evidence in the record to
be upheld at the District Court level. Using direct quotes
from the testimony of the City's witnesses we demonstrate that
there is substantial competent evidence in the record to
support the District's finding that larger withdrawals are
not consistent with the public interest or for reasonable
(a) As to reasonable beneficial use:
1. Although authorized to withdraw as much
as 24 mgd from the wellfields throughout 74 and 75,
the City withdrew a combined average of only 17.6 mgd
for 1974 and 19.3 mgd for 1975. (Appendix, pages
11 and 12)
2. The City desires to be able to pump up
to 14 mgd from Cosme-Odessa only during dry periods.
The average anticipated pumping rate, on an annual
basis is approximately 9.5 mgd. (Transcript page 60.)
3. The anticipated growth in the City was
described by the City as "negligible". (Transcript
4. The need for pumping larger quantities
has been diminished by water conservation measures
implemented within the City. (Transcript pages 287,
288, 133 and 17.)
5. The need for pumping over and above
the 168 million gallons per week limitation is
cyclical and occurs only in the dry season.
The additional capability sought by the City was
for an additional 3 mgd during this period.
(Transcript pages 264, 278, 279, 280 and 281.)
(NOTE: It is our position that the foregoing
establish that additional water is not needed,
hence, would not be withdrawn for a reasonable
(b) As to consistency with the public interest:
1. Before the wellfields were regulated
by regulatory order number 74-11R, the City withdrew
a combined average amount of 34.1 mgd. (Appendix
pages 11 and 12).
2. Prior to the establishment of the
regulatory levels in the pumping cap limitation
in regulatory order 74-11R, lake levels, water
tables, and potentiometric surfaces in the
area were declining. (Transcript pages 140 and
3. Lower water tables, lake levels, and
potentiometric surfaces were caused by the large
withdrawal of water for these wellfields, rapid
urbanization of the area, and less than average
rainfalls. (Transcript pages 204, 205, 206 and
4. Potentiometric surfaces, water tables,
and lake levels rose after the implementation of
regulatory order 74-11R as a result of the City's
diminished pumping rate, improvements in surface
water drainage patterns and more normal rainfall.
(Transcript pages 134, 236, and 240.)
5. Continued improvement in lake levels,
water tables, and potentiometric surfaces is
anticipated if the regulatory levels and pumping
cap limitations in regulatory order 74-11R were
continued and incorporated into the permits
requested by the City. (Transcript pages 134
(NOTE: The foregoing was submitted to the Court
in support of the position that it establishes that it
would be in the public interest to refrain from granting
permission to withdraw larger quantities of water.)
HILLSBOROUGH COUNTY'S POSITION:
1. While not referring to specific portions of the
record, Hillsborough County does maintain the argument that
the City failed to demonstrate by clear and satisfactory
evidence that the orders under review depart from the essential
requirements of the law, or that the Water Management District
exceeded its statutory authority in entering the orders, or
that the District abused its discretion in entering the
challenged order or rule.
2. Hillsborough County argues that the action taken
by the District concerned a matter that had been committed to
its discretion by law and hence should be entitled to great
weight and should be upheld by the Court unless there is a
violation of law or abuse of discretion. The County argues
further that the District should be the beneficiary of a
presumption of the validity and correctness of the determination
made by it which can only be overcome when the invalidity of the
decision appears on the face of the order or where the weakness
is made to appear by clear and satisfactory proof. Hillsborough
County argues that on the face of the order the decision complies
with the requirements of the statute; the county argues further
that the City of St. Petersburg failed to show invalidity by
clear and satisfactory proof.
ISSUE VI: ESTOPPEL ARGUMENT
ST. PETERSBURG'S POSITION:
1. St. Petersburg did not brief this point.
PINELLAS COUNTY'S POSITION:
1. Pinellas County did not brief this point.
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT'S POSITION:
1. SWFWMD did not brief this point.
HILLSBOROUGH COUNTY'S POSITION:
1. The City of St. Pete, in the Five Party Agreement,
expressly stipulated that the identical regulatory levels
and gallonage caps granted by the District in the subject
orders were reasonable. Furthermore, the City's represen-
tatives reaffirmed its prior stipulation as to their
reasonableness by requesting to be controlled by the same
regulatory levels during the course of the proceedings below.
"Having agreed formally under oath on two
separate occasions that the gallonage caps
and regulatory levels attached to the
Cosme-Odessa and Section 21 Wellfields were
reasonable, Petitioner is stopped to refute
its own prior stipulations via these pro-
ceedings." (Hillsborough County Brief,
1. Hillsborough County argues in Point V of its Brief
that the City of St. Petersburg's remedy, if any, lies solely
with the legislature. None of the other parties address this
200 Fla. 306 SOUTHERN REPORTER, 2d SERIES
The Fifth Circuit Court of Appeals, in a sole prerogative of the jury, and their de-
criminal conspiracy case, explained the pol- termination, if the evidence is such as to
icy behind admitting circumstantial evi- sustain such a determination by reasonable
dence in that type of case, saying: people, may not be disturbed on appeal.
"Associations formed among those ac- Affirmed.
complished in criminal endeavor are sel-
dom manifested by clear and direct evi- a S
dence and proof of existence of such Associate Judge, Retired, concur.
conspiracies must rest upoby inferences
drawn from relevant and competent evi-
dencel'- (Rodriguez v. U. S., 5th Cir.
(C KEY NUMBER SYSTEM
1957, 373 lV.2d 17) s
In Norfolk Monument Conmpany v.
Woodlawn Memorial Gardens, Inc., Su-
preme Court of the United States 1970, 394 FLORDA BEVERAGE CORPORATION,
U.S. 700, 89 S.Ct. 1391, 22 L.Ed.2d 658, the INC., et al., Appellants,
United States Supreme Court held that
business behaviour is admissible circum-
stantial evidence from which the fact find- Winston W. WYNNE, as Director of the DI-
vision of Beverage, a division of the De-
er may infer agreement. apartment of Business Regulation of the
State of Florida, Appellee.
The conspiracy count in the case sub ju-
dice is one in which the direct evidence No. U-368.
concerning the conspiratorial scheme re- D)istrict Court of Appeal of Florida,
posed exclusively within the minds of the First District.
accused. Circumstantial evidence supplied .han. 14, 1975.
the only vehicle available to the plaintiff
for proving his case. If the rule advocat-
ed by appellant were to be adopted by this Liquor dealers and distributors sought
Court, it would mean that any group of co- judgment declaring that a Division of Bev-
conspirators could prevail in a lawsuit in- erage regulation providing for cooperative
volving that conspiracy merely by agreeing or pool buying by liquor vendors was in-
among themselves to testify that no con- valid. The Circuit Court, Leon County,
spiracy existed and to coordinate their tes- James E. Joanos, J., rendered summary
timony to accomplish that end. judgment for the Division, and dealers and
distributors appealed. The District Court
In summary, we hold that circumstantial of Appeal, Lee, Thomas E., Associate
evidence is sufficient, if it meets the stand- Judgc, held that the challenged rule was
ards required in civil cases generally, to neither arbitrary nor capricious.
sustain a verdict for a plaintiff in an ac-
tion for damages arising out of an alleged Affirmed.
conspiracy; that the evidence sub judice
met those standards; that the evidence
I. Administrative Law and Procedure c:208
when viewed in the light most favorable to
the plaintiff was sufficient to justify sub- Legislature, having enacted statute
mission of the case to the jury and that complete in itself which declares legislative
the trial judge did not err in so doing. policy or standard and operates to limit
power delegated, may authorize adminis-
It is not our provinlce to determine what trative agency to prescribe rules and regu-
T..a t is the latii. ,.. administration
rLORIDA BEVERAGE CORPORATION, INC. v. WYNNE Fla. 201
Cite as. Fal.App., 306 So.2d 200
r de- 2. Administrative Law and Procedure =208 LEE, THOMAS E., Associate Judge.
nable Legislature may expressly authorize Appellant, Liquor Dealers and Distribu-
designated public officials to provide rules tors, plaintiffs below, seek review of an
and regulations for complete operation and adverse summary final judgment rendered
enforcement of law or laws within their in favor (rf appellee, defendant below,
expressed general purposes: Director of the DIv'ion of Beverage, a di-
SAM, vision of the I)epartment of Business Reg-
3. Administrative Law and Procedure C=208 ulation of the State of Florida. The Inde-
pendent l1everagce Dealers were allowed to
Administrative authority to make rule i:'erveue as an interested party appellee.
and regulations is not impairment of doc-
trine of nondelegation of powers. Appellant's complaint sought a judgment
declaring Rule 7A-4.50, Rules of the Divi-
4. Administrative Law and Procedure C0390 sion of Reverage, "unconstitutional, inval-
id, and of no force and effect."
ION, Where empowering provision of stat-
ute states that administrative agency may The subject rule, which was adopted by
make such rules and regulations as may be the !'vision of Beverage on October 29,
he Di- necessary to carry out provisions of the 1973, and filed with the State of Florida,
o De- act, validity of regulations promulgated Department of State, for inclusion in the
of the thereunder will be sustained so long as Florida Adminiistrative Code, provides:
they are reasonably related to purposes of
'-. enabling legislation, and are not arbi- 7A-4.50 Cooperative or pool buying by
trary or capricious. vendors.
Anything to tit contrary in these rules
5. Intoxicating Liquors =129 notwithstanding the following shall apply
Division of Beverage regulation pro- in all cases where two or more licensed
viding for cooperative or 1ool buyingg ly vendors pool their purchases for spiritu-
sought vendors, purpose of which was to improve ous beverages from a distributor:
f Bev- competitive position of smaller vendors and
erative i r 1. Any agreement between vendors to
.rative distributors, was neither arbitrary nor ca- "
ias in- pricious. West's F.S.A. 561.01(10), "pool" buy shall be in writing, filed with
county 561.11(1), 561.14(3). the Division of Beverage, and shall des-
mmary ignate one of the vendors as the agent
:rs and of the others for the purpose of such
Court "cooperative" purchase.
sociate W. Robert Olive, Jr., of Bryant, Dick- 2. \ll orders for pool purchases from a
le was ens, Rumph, Franson & Mliller, Tallahas- distributor shall be placed by the agent
see, for appellants. designated in Section 1, and payment for
that other, whether by single or multiple
J. Riley Davis and C. P. Brindell, Jer- checks, shall be made by such agent.
ome M. Novey, of Novey & Blanton, Tal-
:208 lahassee, for appellee. 3. A distributor shall follow invoice,
statute record keeping and delivery procedures
islative Robert M. Ervin and Thomas M. Ervin, which are in compliance with Rules 7A-
o limit Jr., of Ervin, Varn, Jacobs & Odom, Talla- 4.12, 7A-4.30, 7A-4.31 and 7A-4.43 when
Iminis- hassee, Emerson Allsworth, of Allsworth, receiving orders, selling and delivering i
1 re" Doumar & Schuler, Fort Lauderdale, for to "cooperative buying" vendors, in like
amicus curiae. manner as chain retail vendors.
202 Fla. 306 SOUTHERN REPORTER, 2d SERIES
4. For the purpose of Rules 7A-1.11 with chapter 120 shall have the full
and 7A-4.31 "pool" buying through a force and effect of law. The rules of
designated agent is a single transaction. the division in effect on the effective
date of this Act are specifically exempt
Here as in the trial court Appellants from the requirements of this subsec-
contend that Rule 7A-4.50, supra, is invalid tion."
and unenforceable because: it transcends
the bounds of the various sections of *
Chapter 561, Florida Statutes, sought to be It is well established in Florida that the
implemented; and its enforcement would Legislature, having enacted a Statute com-
do irreparable harm to Appellants. The plete in itself which declares a legislative
trial court rejected these contentions and policy or standard and operates to limit the
rendered the Summary Final Judgment ap- power delegated, may authorize an admin-
pealed. We affirm. istrative agency to prescribe rules and reg-
ulations for its administration. It is equal-
The springboard that launched the spe- ly well settled that the Legislature may ex-
cific Rule under attack, Rule 7A-4.50, su- pressly authorize designated public offi-
pra, was the passage of Chapter 72-272, cials to provide rules and regulations for
Laws of Florida,. 1972, which amended the complete operation and enforcement of
Section 561.14(3), Florida Statutes, to al- a law or laws within their expressed gen-
Slow a "vendor" to purchase or acquire al- eral purposes. Such authority to make
coholic beverages from any other "ven- rules and regulations is not an impairment
dor". Prior to this Amendment a vendor of the doctrine of non-delegation of pow-
could only purchase or acquire such bever- ers. See 1 Fla.Jur., Administrative Law,
ages for the purpose of resale from a li- Section 42, and numerous cases cited there-
; censed distributor or manufacturer. The at. Where the empowering provision of a
obvious intention and purpose of the statute states simply that an agency may
Amendment was to place all vendors and "make such rules and regulations as may
distributors on an equal footing. be necessary to carry out the provisions of
this Act", the validity of regulations pro-
[1-4] Section 561.01(10), Florida Stat- mulgated thereunder will be sustained so
utes, provides, in pertinent part, that "the long as they are reasonably related to the
same discounts shall be offered to all ven- purposes of the enabling legislation, and
dors buying similar quantities". The obvi- are not arbitrary or capricious. Mourning
ous purpose of Rule 7A-4.50 is to effectuate v. Family Publications Service (1972) 411
U.S. 356, 369, 93 S.Ct. 1652, 36 L.Ed.2d
the intention and purpose of the legislature U. 3, 3 9 St. 1 3
318, 329-330; Florida Citrus Commission
in amending 561.14(3), supra, by allowing 318, 329-330; Florida Citrus Commission
v. Golden Gift, Fla.1956, 91 So.2d 657;
small vendors to "pool purchase" large State ex rel. Paoli v. Baldwin, 1947, 159
quantities at the same price made available Fla. 165, 31 So.2d 627; State ex rel. Burr
to large vendors and distributors. v. Jacksonville Terminal Co., 1925, 90 Fla.
721, 106 So. 576.
Section 561.11(1) Florida Statutes, pro-
 Applying the legal principles delin-
"(1) The Division shall have full power eated above to the record in the case at
and authority to make, adopt, amend, or bar, we find that the challenged rule is
repeal rules, regulations, or administra- neither arbitrary nor capricious, and bears
tive orders to carry out the purposes of a reasonable relationship to the purposes
the beverage law. All such rules, regu- intended by the Legislature when it amend-
lations, or order adopted in accordance ed Section 561.14(3), supra. Further, the
DELANEY v. DEPARTMENT OF TRANSPORTATION Fla. 203
Cite as, Fla.App.. 306 So.2d 203
ful: record does not reflect that enforcement of
":s of the subject rule will result in injustice or Lewis DELANEY and Margaret 0. Delaney,
active irreparable injury to the Appellants for his wife, et al., Appellants,
empt which they would have the right to legal v.
bsec- redress. It follows that the trial court did DEPARTMENT OF TRANSPORTATION,
not err in holding that Division of Bever- etc., et al., Appellees.
age Rule 7A-4.50, supra, is legal and en- Nos. U-88, U-89 and U-90.
the forceable, and that its enforcement would
" the District Court of Appeal of Florida,
corn- not cause irreparable injury'to the Appel- First District.
active plants. Jioot 14, 1975.
"iin-t During the course of these proceedings,
reg- we relinquished jurisdiction to the trial Inverse condemnation action. The
qual- court for the purpose of holding a hearing Circuit Court, Levy County, Theron A.
e ex- to determine whether "pool purchase Yawn, Jr., J., rendered judgment for de-
offi- plans" such as those authorized by the sub- fendants, and plaintiffs appealed. The
Sfor ject rule were initiated in practice prior to District Court of Appeal held that where
nt of the promulgation of the rule, or whether construction on entire width of state road
gen- interested persons or parties awaited the across plaintiff's property commenced on
"nake adoption of the rule before entering into September 29, 1966, suit was not com-
ment "pool purchase plans". Evidentiary hear- menced until November 2, 1970 and the en-
pow- ings were held by the trial court of Febru- tire width of the road had been constructed
Law, or maintained and kept in repair or worked
here- ary 13, 1974, and, thereafter, the trial continuously for such time, defendants had
judge found that "pool purchasing plans"t
of a acquired plaintiff's property through oper-
ma) existed and were put into actual practice in action of the four-year dedication statute.
may various sections of the state prior to the
Is of passage of Rule 7A-4.50". Although we Afirmed.
pro- hold that the trial court's finding in this McCord, J., concurred specially and
d so regard is supported by competent, substan- filed onion.
Sthe tial evidence, we have concluded that the
and question of whether or not "pool purchase Dedication B 20(3)
"ning plans" existed prior to the adoption of the
411 rule is legally inconsequential. This is true Where construction on the entire
width of state road across plaintiffs' prop-
d.2d because as of the date of its amendment by erty commenced on September 29, 1966 and
ssion Chapter 72-272, supra, Section 561.14(3), was completed on September 27, 1967, con-
657; supra, in and of itself, constituted suffi- demnation action was not commenced until
S159 cient authority to adopt such pooling November 2, 1970(), and the entire width of
Fla. agreements. The subject rule merely pro- the road had been constructed, maintained
vides for the method and means of work- and kept in repair or worked continuously
ing out the legislative intent. and uninterruptedly, the subject property
had passed to the state through operation
lelin- For all of the foregoing reasons, the of the four-year dedication statute. WVest's
;e at Summary Final Judgment appealed must F.S.A. 337.31(1).
le is be, and is hereby, affirmed.
oses Selig I. Goldin, Goldin & Turner, and S.
lend- JOHNSON, Acting C. J., and BOYER, David Cox, Barton & Cox, Gainesville,
Sthe J., concur. for appellants.