STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES W. O'NEAL, PERI SEDIGH,
AND TIMOTHY ORRANCE, JR.,
Petitioners,
vs.

Case No. 14-5667RP

FLORIDA FISH AND WILDLIFE

CONSERVATION COMMISSION,
Respondent.
_______________________________/

FINAL ORDER OF DISMISSAL

On December 1, 2014, Petitioners, Charles W. ONeal, Peri
Sedigh, and Timothy Orrance, Jr. (Petitioners), filed a
challenge to an amendment to Florida Administrative Code Rule
68A-12.002, entitled General Methods of Taking Game;
Prohibitions, proposed by Respondent, Florida Fish and Wildlife
Conversation Commission (Commission). The matter was referred
to the Division of Administrative Hearings (DOAH), where it was
assigned DOAH Case No. 14-5667RP. On December 23, 2014, the
Commission filed Respondents Motion for Summary Final
Order/Respondents Motion to Dismiss. On December 23, 2014,
Petitioner filed Petitioners Motion for Leave to Amend
Petition. On December 30, 2014, Petitioners filed
Petitioners Response in Opposition to Respondents Motion for
Summary Final Order/Motion to Dismiss. On January 8, 2015, the
undersigned granted Petitioners motion for leave to amend
petition. This cause came to be heard on the Commissions
motion and on Petitioners response thereto by telephone
conference call on January 9, 2015.
Section 120.52(1), Florida Statutes (2014), defines
agency for purposes of chapter 120, the Administrative
Procedures Act (the APA) to include the Commission only when
acting pursuant to statutory authority derived from the
Legislature. When the Commission is acting pursuant to its
constitutional authority, the Commission is not an agency for
purposes of the APA. See Fla. Minerals Assn v. Fla. Fish &
Wildlife Conser. Commn, 23 F.A.L.R. 2632, 2641 (Fla. DOAH

2001); Airboat Assn of Fla., Inc. v. Fla. Game & Fresh Water
Fish Commn, 498 So. 2d 629, 631 (Fla. 3d DCA 1986); Caribbean
Conser. Corp., Inc. v. Fla. Fish & Wildlife Conser. Commn, 838
So. 2d 492, 494, 504 (Fla. 2003).
The Commission exercises the regulatory and executive
powers of the state with respect to wild animal life. Art. IV,
9, Fla. Const. This is a broad and comprehensive grant of
authority for the Commission to exclusively exercise all the
States authority to protect wildlife.
Whenever the Commission acts to regulate the taking of
wildlife, that regulation is based on the authority vested in
the Commission by Article IV, section 9, Florida Constitution.
The subject amendment regulates the taking of wildlife based on
the Commissions constitutional authority.
Furthermore, Florida Administrative Code Rule 68A1.008(5)(c)(1), adopted by the Commission pursuant to this
Constitutional authority, states the following:
1. The Florida Wildlife Commission rules
derived from Constitutional authority are
not to be subject to administrative rule
challenges under section 120.56. See
Airboat Assn of Fla., Inc. v. Fla. Game &
Fresh Water Fish Commn, 498 So. 2d 629
(Fla. 3rd DCA 1986). Under the APA, the
Florida Wildlife Commission is not defined
as an agency except when it is acting
pursuant to statutory authority derived from
the Legislature. See 120.52(1)(b).
However, rules derived from Constitutional
authority can be challenged in a number of
ways:
a. The Florida Wildlife Commission rules,
and possible proposed rules, derived from
Constitutional authority may be challenged
directly before the circuit court by
declaratory action, injunctive action or, in
appropriate circumstances, under the Bert J.
Harris Private Property Rights Protection
Act, section 70.001, Florida Statues.
Decisions of the circuit court can be
appealed to the appropriate District Court

of Appeal, and potentially to the Supreme

Court of Florida.
Thus, if Petitioners wish to challenge the matter at hand,
a means of such challenge has already been provided:
Petitioners must bring their challenge directly before the
circuit court.
DOAH was created by the Legislature and can only exercise
the jurisdiction conferred upon it by the Legislature. The
Commission, by its acts, cannot, as Petitioners argue, confer
jurisdiction on DOAH. DOAH lacks subject matter jurisdiction to
determine whether the proposed amendment violates the APA.
Based on the foregoing, it is ORDERED:
1. Respondents motion to dismiss is granted, and the
amended petition challenging proposed rule is dismissed without
leave to amend.
2. Respondents motion for summary final order is denied
on the grounds that DOAH lacks jurisdiction to enter such an
order.
3. The hearing scheduled to begin February 19, 2015, is
canceled.
DONE AND ORDERED this 14th day of January, 2015, in
Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847
www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings
this 14th day of January, 2015.
COPIES FURNISHED:
Christopher Thomas Byrd, Esquire
The Byrd Law Group
3505 Lake Lynda Drive, Suite 200
Orlando, Florida 32817
(eServed)
Harold "Bud" G. Vielhauer, General Counsel
Florida Fish and Wildlife Conservation Commission
Farris Bryant Building
620 South Meridian Street
Tallahassee, Florida 32399-1050
Ryan Smith Osborne, Esquire
Florida Fish and Wildlife Conservation Commission
620 South Meridian Street
Tallahassee, Florida 32399-1600
(eServed)
Eugene Nichols "Nick" Wiley II, Executive Director
Florida Fish and Wildlife Conservation Commission
Farris Bryant Building
620 South Meridian Street
Tallahassee, Florida 32399-1600
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is
entitled to judicial review pursuant to section 120.68, Florida
Statutes. Review proceedings are governed by the Florida Rules
of Appellate Procedure. Such proceedings are commenced by
filing the original notice of administrative appeal with the
agency clerk of the Division of Administrative Hearings within
30 days of rendition of the order to be reviewed, and a copy of
the notice, accompanied by any filing fees prescribed by law,
with the clerk of the District Court of Appeal in the appellate
district where the agency maintains its headquarters or where a
party resides or as otherwise provided by law.