BOOKER CREEK PRESERVATION, INC., PETITIONER,
v.
DEPARTMENT OF ENVIRONMENTAL REGULATION, AN AGENCY OF THE STATE OF FLORIDA, RESPONDENT
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A petition for review of a declaratory statement from the Department of Environmental Regulation is appealable to the Environmental Regulation Commission, and failure to do so constitutes a failure to exhaust administrative remedies.
Petitioner sought review of a declaratory statement from the Department of Environmental Regulation. Respondent moved to dismiss, arguing petitioner f…
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PER CURIAM.
This petition was brought to review a declaratory statement of the Florida Department of Environmental Regulation. Respondent moves to dismiss the petition for review on the ground that petitioner has failed to exhaust its administrative remedies by not appealing the order of the Department of Environmental Regulation to the Environmental Regulation Commission, citing Peterson v. State Department of Environmental Regulation, 350 So. 2d 544 (Fla. 1st DCA 1977).
Petitioner attempts to distinguish Peterson as involving the denial of a request for a permit and contends that, in contrast, a declaratory statement is not properly appealable to the Environmental Regulation Commission. Petitioner argues that Florida Statute, Section 403.804, provides for appeals from the department to the commission only in an adjudicatory action such as the denial of a permit.
Respondent, on the other hand, contends that the statute does not distinguish between various types of final agency action for purposes of review. We agree. The above statute provides that “[t]he commission shall also act as an adjudicatory body for final actions taken by the department . .” It is apparent from the above that the “final action” being appealed does not have to be an adjudicatory order, only that the commission shall act as an adjudicatory body. Additionally, Chapter 17 of the Florida Administrative Code, Rules 17— 1.69 and 17 — 1.70, provide for appeals of various types of final agency action from the department to the commission and include declaratory statements. See Rule 17— 1.70(l)(c), Fla.Admin.Code.
Therefore, the rationale of Peterson, supra, applies to appeals from declaratory statements and petitioner having failed to exhaust its administrative remedies, this petition for review must be and is hereby dismissed.
GRIMES, C. J., and BOARDMAN and SCHEB, JJ., concur.
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State v. Falls Chase Special Taxing Dist., 424 So. 2d 787 (Fla. 1st DCA 1982)…as subject, in turn, to section 120.68 appellate review in a district court of appeal. Peterson v. Department of Environmental Regulation, 350 So. 2d 544 (Fla. 1st DCA 1977); Booker Creek Preservation, Inc. v. Department of Environmental Regulation, 369 So. 2d 655 (Fla. 2d DCA 1979). Had Falls Chase, Sunshine and Elba pursued this remedy in March 1979, when the dispute arose, this rather clearcut issue over the extent of the Department’s regulatory powers on the banks of Upper Lake Lafayette would have been…
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KEY Haven Associated Enters., Inc. v. Bd. OF Trs. OF the Internal Improvement Tr. Fund & Dept. of Env't Reg., 400 So. 2d 66 (Fla. 1st DCA 1981)…Everglades v. State Dept. of Environmental Regulation, 387 So. 2d 511 (Fla. 1st DCA 1980); Peterson v. State Dept. of Environmental Regulation, 350 So. 2d 544 (Fla. 1st DCA 1977); Booker Creek Preservation, Inc. v. Dept. of Environmental Regulation, 369 So. 2d 655 (Fla. 2d DCA 1979). . The record of a 1975 conference shows that Key Haven’s president, when asked by state officials if he would consider selling the submerged land back to the State for the price he paid for it, responded that reversing the sale…
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Smith v. Willis, 415 So. 2d 1331 (Fla. 1st DCA 1982)…4); School Board of Pinellas County v. Noble, 372 So. 2d 1111 (Fla.1979); Friends of the Everglades v. State Dept. of Environmental Regulation, 387 So. 2d 511 (Fla. 1st DCA 1980); Booker Creek Preservation, Inc. v. Dept. of Environmental Regulation, 369 So. 2d 655 (Fla. 2d DCA 1979). I fail to find any allegation in the county’s complaint of such substance as to require an interruption of the administrative proceeding. [*1337] On a much broader, fundamental basis, however, I must take issue with my colleagues…
Authorities Cited
- Peterson v. The State of Fla. Dep't OF Env't Reg., 350 So. 2d 544 (Fla. 1st DCA 1977)