Booker Creek Preservation, Inc. v. Department of Environmental Regulation

ON MOTION TO DISMISS 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 ap-pealable 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.