STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

Transcription

1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS New Filing Cherane Pefley : : Petitioner, : : v. : : (1) Governor Rick Scott in his : capacity as Chief Operating : Officer of the State of Florida. : : : (2) Florida Department of Agriculture, : : (3) Florida Department of Revenue, : : (4) Palm Beach County, Florida, : : Respondents : / RULE CHALLENGE Pursuant to (4)(a), Fla. Stat., Petitioner alleges the following: I. PETITIONER 1. Petitioner resides at Snail Trail, Loxahatchee Groves, Florida Petitioner s telephone number is (561) Since 1989, Petitioner has propagated rare, exotic birds on her property which has formed the basis of a long standing and well established agricultural, property classification. Petitioner moved to her present, above-stated location in 2007 and, at that time, applied for the aforesaid agricultural classification, tax use. 2. In consequence, Petitioner s premises were inspected by the Florida Department of Agriculture and she was approved for the agricultural classification, tax use in Said approval has been automatically renewed every year until June, 2013, when Palm Beach

2 County arbitrarily noticed Petitioner with the removal of her agricultural, tax use. Please see Exhibit A. II. SUBSTANTIAL AFFECTATION 3. Substantial affectation is roughly the agency term of art for jurisdiction in the judiciary. This petitioner must establish before DOAH: (1) a real and sufficiently immediate injury in fact; and (2) that the alleged interest is arguably within the zone of interest to be protected or regulated. See All Risk Corp. Of Fla. v. State, Dep't of Labor & Employment Sec., 413 So. 2d 1200 (Fla. 1st DCA 1982). 4. Operating the Heaven on Earth Avian Acre since 1989 and on her Loxahatchee Groves land since 2007, Petitioner is recognized statewide, if not nationally, as a champion of and expert on rare, exotic birds. And her agricultural land is used therefor. 5. Petitioner has a real and sufficiently immediate injury, in fact, at present amounting to over $1,000 loss per year and likely creeping upward with time if Palm Beach County is permitted to fly in the face of state law. 6. Petitioner s injury is demonstrably real in dollars, not based on pure speculation or conjecture. See, e.g., Professional Firefighters of Fla., Inc. v. Department of Health & Rehabilitative Servs., 396 So. 2d 1194 (Fla. 1st DCA 1981). 7. The general rule regarding the second zone of interest element of the substantially affected test is that such element is met where a party asserts that a rule implementing a statute encroaches upon an interest protected by a statute or the constitution. Florida Medical Ass'n v. Department of Professional Regulation, 426 So. 2d 1112, 1117 (Fla. 1st DCA 1983). Page 2 of 9

3 8. While statutory authority is pleaded in Section, in the context of a rule challenge, the protected zone of interest need not be found in the enabling statute of the challenged rule itself. Id. Since the crux of [a rule challenge] controversy involves the claim that [the enabling statute] does not authorize the rule, it is obvious that the effect of other statutes must be considered in determining standing. Id. (explaining that standing in rule challenges is different from that in licensing or permitting proceedings). 9. A real and sufficiently immediate injury in fact exists, where the challenged statement, rising to a rule, has a direct and immediate effect upon Petitioner s right to earn a living. III. STANDING 10. Section (4) grants to [a]ny substantially affected person standing to challenge the validity of a proposed agency rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority. There are other people in Palm Beach County similarly situated, who are losing their agricultural classifications. 11. Nothing has changed in (1) Petitioner s agricultural use, (2) surrounding urbanization or (3) any vote of the Palm Beach County Commission supporting removal of Petitioner s agricultural classification. In fact, the Commission has voted to the contrary. 1 IV. AUTHORITY FOR THIS CHALLENGE 12. [ ](4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES; SPECIAL PROVISIONS. (a) Any person substantially affected by an agency statement may seek an 1 On July 16, 2013, the Palm Beach County commissioners agreed to hold the countywide tax rate steady in The commission voted unanimously to set the countywide property tax rate at last year s level of $4.99 per $1,000 of taxable value. Page 3 of 9

4 administrative determination that the statement violates s (1)(a). The petition shall include the text of the statement or a description of the statement and shall state with particularity facts sufficient to show that the statement constitutes a rule under s and that the agency has not adopted the statement by the rulemaking procedure provided by s V. STATEMENT CHALLENGED 13. Attached as Exhibit A is the challenged statement, which, Petitioner respectfully avers, constitutes a rule. Dated June 18, 2013, titled Snail Trail, Removal of Agricultural Classification for 2013, the letter (hereinafter statement ) written under Palm Beach County authority states, in its most pertinent part, as follows: Beginning with 2013, the agricultural classification will be removed from your property. 14. Exhibit A confirms: Our records reveal that a portion of your property is used to raise exotic birds... While in past years you received the agricultural classification for this use, that classification was erroneously given. 15. The statement continues: Aviculture or the practice of keeping and breeding birds is not considered by this office to be an agricultural purpose qualifying land for the favorable property tax treatment. Section (3)(b), Florida Statutes, permits only land used for bona fide agricultural purposes to be classified as agricultural land. Section (5) of the statute indicates that agricultural purposes includes, but is not limited to, horticulture; floriculture; vititiculture; forestry; dairy; livestock; poultry (emphasis present and not supplied); bee; piscisulture, when the land is used principally for the production of tropical fish; agquaculture; sod farming; and all forms of farm products as defined in s (3) and farm production. Page 4 of 9

5 (3)(b), Fla. Stat., states: The board of county commissioners may also reclassify lands classified as agricultural to nonagricultural when there is contiguous urban or metropolitan development and the board of county commissioners finds that the continued use of such lands for agricultural purposes will act as a deterrent to the timely and orderly expansion of the community , Fla. Stat. is the Florida Right to Farm Act that has covered Petitioner s agricultural classification since Paragraph (3) states, in pertinent part: DEFINITIONS. As used in this section: (a) Farm means the land, buildings, support facilities, machinery, and other appurtenances used in the production of farm or aquaculture products... (b) Farm operation means all conditions or activities by the owner, lessee, agent, independent contractor, and supplier which occur on a farm in connection with the production of farm, honeybee, or apiculture products... Farm product means any plant, as defined in s , or animal or insect useful to humans and includes, but is not limited to, any product derived therefrom. (d) Established date of operation means the date the farm operation commenced... VI. THE STATEMENT CHALLENGED RISES TO A RULE 18. Imposing a new tax, the challenged statement is one of general applicability. Although it is written on Palm Beach County letterhead absent authority, it purports to have authority. But Petitioner respectfully alleges that the statement has no real legal efficacy until it is promulgated into a rule pursuant to the , Fla. Stat., rulemaking procedure. 19. The APA (Florida Administrative Procedure Act, 120, Fla. Stat.) provides that rulemaking is not a matter of agency discretion; rather, each agency statement which is, in effect, a "rule," as that term is defined in the APA, must be adopted by the rulemaking procedure set forth in the APA as soon as feasible and practicable (1)(a), Fla. Stat. Page 5 of 9

6 20. A "rule" is generally defined in the APA as an agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form that imposes any requirement or solicits any information not specifically required by statute or by an existing rule (15), Fla. Stat. 21. The following statement of law fits Petitioner s factual situation: An administrative agency is required to promulgate rules on those statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law. West's F.S.A (16). Coventry First, LLC v. State, Office of Ins. Regulation, 38 So. 3d 200 (Fla. Dist. Ct. App. 1st Dist. 2010). 22. Moreover, "Regulation" is synonymous to a rule enacted pursuant to the administrative law process. 23. Rule or regulation comes into being as result of a legislative grant of authority to the executive branch department or agency. Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So. 2d 787 (Fla. Dist. Ct. App. 2d Dist. 2005), reh'g denied, (Feb. 22, 2005). 24. Finally, it is respectfully alleged, Palm Beach County s neglect of rulemaking by State authorities and attempts to promulgate policy of general applicability on an ad hoc basis is violative of Florida law. Kerper v. Department of Environmental Protection, 894 So. 2d 1006 (Fla. Dist. Ct. App. 5th Dist. 2005), reh'g denied, (Mar. 2, 2005). VII. STATUTORY AUTHORITY INVALIDLY EXERCISED , Fla. Stat., remains unchanged since 1995 and subsection (1) still Page 6 of 9

7 defines Agriculture as...the science and art of production of plants and animals useful to humans Furthermore, the Right to Farm Act itself, embodied in , Fla. Stat., defines Farm in subsection (3)(a) to mean... rhw Lns, vuilsinfa, aupport facilities, machinery, and other appurtenances used in the production of farm and aqualculture products (emphasis added), and Farm Product is defined in subsection (3)(c) to mean... any plant, as defined in , or animal useful to humans and includes, but is not limited to, any product derived therefrom (emphasis added) 27. The Florida Legislature has accordingly made it very clear that the commercial production of birds for the pet trade is a bona fide agricultural activiety affoded the protections of the Florida Right to Farm Act and all other Florida agricultural laws such as the agricultural property classification in , Fla. Stat. And the non-residential building exemption in , Fla. Stat., to name just a few. Please see Exhibit C. 2 VII. PALM BEACH COUNTY S HOME RULE DOES NOT IMPACT PROPERTY TAXATION 28. Palm Beach County has Home rule, codified in the Florida Constitution in Basically, it constitutionally guarantees Palm Beach County the authority to run their local governments and the services they provide, as they see fit, Except... The state retains all taxing authority, meaning the Legislature sets all the rules when it comes to taxation. (emphasis supplied) VIII. LONGSTANDING AND CONTEMPORANEOUS INTERPRETATION 2 For this section, credit is given to John W. Costigan, Assistant General Counsel of the Florida Department of Agruculture and Consumer Services. Exhibit C is a copy of his letter to The Organization of Professional Aviculturists, dated April 21, Page 7 of 9

8 INVALIDATES THE STATEMENT CHALLENGED 29. To the best of Petitioner s knowledge and belief, the longstanding and contemporaneous interpretation of Florida law according the agricultural exemption to those raising rare, exotic birds has remained unchanged in the State of Florida. 30. In fact, by way of example, not limitation, Palm Beach County confirmed the agricultural status of those using land to raise rare, exotic birds in the following , dated April 16, 2010 and attached as Exhibit B: Ms. Pelley, Your property is classified as agricultural with the 6750 code which is specifically used for misc. fowl such as exotic birds, ostriches, quail and emus. The 6700 code on the website is a Department of Revenue code that is a catch-all code (that is what I call it) that includes misc. fowl as well as bee hives and fish farms. We break down that catch-all code further to reflect the actual agricultural use of the property which in you case is for misc. fowl (6750). The building card for your property showing this 6750 code was ed to you previously. Sincerely, Michael S. Wheeler, CFE, Agricultural Appraiser II, Palm Beach County Property Appraiser, Government Center 5 th Floor, 301 North Olive Avenue, West Palm Beach, Florida 33401, , fax VIII. STATUTORY VIOLATIONS OF STATEMENT 31. As a sovereign, sub-division of the State of Florida, Palm Beach County cannot arbitrarily and capriciously change the rules governing the State of Florida. 32. The Statement does not set forth the rule promulgated for this new tax. Indeed, there is no rule and there has been no rulemaking. Nowhere does Palm Beach County refer Petitioner to rulemaking, Chapter 120 or the Division of Administrative Hearings, where this issue rightfully belongs. 33. At all time material, Petitioner has complied with the letter and spirit of the law. Page 8 of 9

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