98 So. 3d 651
Fla. Dist. Ct. App.2012Background
- Morgan appeals the ALJ's denial of his motion to intervene in an environmental enforcement proceeding and the trial court's dismissal of count III seeking enforcement under §120.69.
- Adeeb obtained a DEP permit to use sovereign submerged lands for a 500-foot dock extending into the Atlantic, and construction began four years later.
- Morgan filed suit for injunctive relief and the DEP issued a Notice of Violation and Order for Corrective Action regarding Adeeb's false submissions in a pre-permit geological survey.
- Adeeb and the DEP moved to abey the administrative case, which the ALJ granted and has repeatedly continued for two years.
- Morgan sought intervention; the ALJ denied it, Morgan then amended the complaint and pursued count III under §120.69; Adeeb moved to dismiss for lack of subject matter jurisdiction, which the trial court granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether citizens have right to intervene in agency enforcement. | Morgan asserts statutory right to intervene in enforcement actions. | Adeeb contends intervention is unavailable in enforcement proceedings. | No right to intervene in enforcement proceedings; denial affirmed. |
| Whether count III can be enforced under §120.69 when agency has diligently prosecuted. | Morgan argues enforcement should proceed notwithstanding diligence. | Adeeb contends the agency had filed and diligently prosecuted, barring Morgan's action. | Count III properly dismissed; no action exists when agency has filed and diligently prosecuted. |
Key Cases Cited
- Charter Medical-Jacksonville, Inc. v. Cmty. Psychiatric Ctrs. of Fla., Inc., 482 So.2d 487 (Fla. 1st DCA 1985) (denial of intervention is a non-final agency action; certiorari-like review)
- CNL Resort Hotel, L.P. v. City of Doral, 991 So.2d 417 (Fla. 3d DCA 2008) (scope of review analogous to certiorari)
- Greene v. Dep’t of Natural Res., 414 So.2d 251 (Fla. 1st DCA 1982) (standing to intervene under 403.412(5))
- Envtl. Confed. of Sw. Fla., Inc. v. Dep’t of Envtl. Prot., 886 So.2d 1013 (Fla. 1st DCA 2004) (citizens' substantive rights to challenge permits)
- GTC, Inc. v. Edgar, 967 So.2d 781 (Fla. 2007) (plain language interpretation of statutes)
- L.A.P. v. State, 62 So.3d 693 (Fla. 2d DCA 2011) (statutory interpretation; limitations based on plain meaning)
- Seminole Tribe of Fla. v. McCor, 903 So.2d 353 (Fla. 2d DCA 2005) (judicial consideration of subject-matter jurisdiction via outside evidence)
- Karr v. Hefner, 475 F.3d 1192 (10th Cir. 2007) (agency diligence and prosecutorial strategy not to be second-guessed)