author: WELLS, Judge.

text:
    CITY OF HIALEAH GARDENS, Petitioner, v. MIAMI-DADE CHARTER FOUNDATION, INC., and Luis Machado, Respondents.
    No. 3D03-1056.
    District Court of Appeal of Florida, Third District.
    July 23, 2003.
    Rehearing and Rehearing En Banc Denied Oct. 17, 2003.
    Citrin & Walker and J. Frost Walker, III, Coral Gables, for petitioner.
    Tannebaum, Plans & Weiss and Daniel A. Weiss, for respondents.
    Before FLETCHER, and WELLS, and NESBITT, Senior Judge.
   WELLS, Judge.

The City of Hialeah Gardens petitions for certiorari review of a decision of the circuit court, appellate division, quashing the City’s denial of an application for a special exception use resolution. We grant the petition and quash the circuit court’s decision.

Luis Machado and the Miami-Dade Charter Foundation, Inc. (collectively “Ma-chado”) sought a permit from the City of Hialeah Gardens for a “special exception use” resolution permitting the construction and operation of a charter elementary school on approximately 2.1 acres of property fronting Northwest 103rd Street, a main highway artery and extension of West 49th Street in neighboring Hialeah. Under the City’s code, the use of this property for a school, due to its location in a BU zone, is authorized upon adoption of a resolution granting a special exception use, which must be found by the City Council to comply with the following requirements:

(1) The use is a permitted special use as set forth in the special exception uses for that district.
(2) The use is so designed, located and proposed to be operated that the public health, safety, welfare and convenience will be protected.
(3) The use -will not cause substantial injury to the value of other property in the neighborhood where it is to be located.
(4) The use will be compatible with adjoining developments and the proposed character of the district where it is to be located.
(5) Adequate landscaping and screening is provided as required in this chapter, or as otherwise required.
(6) Adequate off-street parking and loading is provided. Ingress and egress is designed so as to cause minimum interference with traffic on abutting streets and the use has adequate frontage on a public or approved private street.
(7)The use conforms with all applicable regulations governing the district where located, except as may otherwise be determined for planned unit developments.

§ 78-132, City of Hialeah Gardens Code.

In the course of the three public hearings held on the matter, Machado presented two site plans and introduced both lay and expert testimony in support of the request. The City’s professional staff explained why they could not support the placement of an elementary school on what was characterized as one of the busiest, most congested roadways in Miami-Dade County. Ultimately, the City rejected Ma-chado’s application.

The City’s decision was overturned by the circuit court, appellate division, primarily for two reasons: first, because the City’s testimony addressing “the traffic risks associated with placing a school on a well traveled thoroughfare” was “not based on specific expert competent evidence,” and second, because the testimony of staff members, while “casting] doubt” on the evidence presented by Machado, did not overcome Machado’s evidence.

Our scope of review of the circuit court’s decision is limited to determining whether the circuit court applied the correct law or legal standard, that is, whether it departed from the essential requirements of the law. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995); City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982); Metropolitan Dade County v. Blumenthal, 675 So.2d 598, 608-09 (Fla. 3d DCA 1995). We agree with the City that the circuit court applied the wrong law or incorrect legal standard, first, by rejecting the City’s decision as not being “based on specific expert competent evidence,” and second, by re-weighing the evidence, and in the process, ignoring the evidence supporting the City’s decision. See Vaillant, 419 So.2d at 626; see also Dusseau v. Metro. Dade County Bd. of County Comm’rs, 794 So.2d 1270, 1275 (Fla.2001); Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1093 (Fla.2000). We therefore exercise our certiorari jurisdiction because the circuit court violated clearly established principles of law resulting in a substantial miscarriage of justice. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 682-83 (Fla.2000).

A.

Once a special exception applicant demonstrates consistency with a zoning authority’s land use plan and meets code criteria, the decision-making body may deny the request only where “the party opposing the application (i.e., either the agency itself or a third party) ... show[s] by competent substantial evidence that the proposed exception does not meet the published criteria.” Fla. Power & Light Co., 761 So.2d at 1092; see Irvine v. Duval County Planning Comm’n, 495 So.2d 167 (Fla.1986); Jesus Fellowship, Inc. v. Miami-Dade County, 752 So.2d 708 (Fla. 3d DCA 2000). In this context, competent evidence is evidence sufficiently relevant and material to the ultimate determination “that a reasonable mind would accept it as adequate to support the conclusion reached.” DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla.1957). Substantial evidence is evidence that provides a factual basis from which a fact at issue may reasonably be inferred. Id.; Blumenthal, 675 So.2d at 608; see also Pollard v. Palm Beach County, 560 So.2d 1358, 1359-60 (Fla. 4th DCA 1990) (“evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the ‘substantial’ evidence should also be ‘competent.’ ”).

Under this standard, generalized statements in opposition to a land use proposal, even those from an expert, should be disregarded. See Div. of Admin. v. Samter, 393 So.2d 1142, 1145 (Fla. 3d DCA 1981) (“[n]o weight may be accorded an expert opinion which is totally conclusory in nature and is unsupported by any discernible, factually-based chain of underlying reasoning”). However, contrary to the circuit court’s decision, relevant fact-based statements, whether expert or not, are to be considered. See Blumenthal, 675 So.2d at 607 (“[ujnder the correct legal standard, citizen testimony in a zoning matter is perfectly permissible and constitutes substantial competent evidence, so long as it is fact-based”); see also Metro. Dade County v. Sportacres Dev. Group, 698 So.2d 281, 282 (Fla. 3d DCA 1997)(holding that materials in the record in conjunction with neighbors’ testimony could constitute competent substantial evidence). Here, the Chief of Police, the Director of Public Works, and the Chief Zoning Official, gave specific fact-based reasons for their recommendations that the application be rejected. Their observations were relevant, material, and fact-based and not merely, “generalized statements] of opposition.” Blumenthal, 675 So.2d at 607; see Jesus Fellowship, 752 So.2d at 709; Miami-Dade County v. Walberg, 739 So.2d 115, 117 (Fla. 3d DCA 1999)(citing Blumenthal, 675 So.2d at 607). In sum, these witnesses were “no group of ‘Apopka Witnesses,’ i.e., local residents who simply wished the facility to be established elsewhere” but were experts providing fact-based, relevant and material evidence. Blumenthal, 675 So.2d at 608, quoting City of Apopka v. Orange County, 299 So.2d 657 (Fla. 4th DCA 1974); see also Allapattah Cmty. Ass’n v. Miami, 379 So.2d 387, 393 (Fla. 3d DCA 1980)(citing to “expert opinion” of planning department).

Inherent in the circuit court’s conclusion that the City’s denial had to be based on “specific expert competent testimony,” is the incorrect assumption that the expert testimony of those opposing Machado’s application had to be distilled from the experts’ own studies or reports. This is incorrect. The fact that these professionals did not submit, as the circuit court noted, their own “countervailing” charts, statistical studies or other materials did not diminish the sufficiency of their testimony.

The “facts” upon which such testimony rests may derive from relevant portions of the record or from other relevant factual information detailed in the application itself. See Sportacres Dev. Group, 698 So.2d at 282 (holding that “the County Commission had access to a record which contained maps, reports and other information which, in conjunction with the testimony of the neighbors, if believed by the Commission, constituted competent substantial evidence”).

Here, the testifying staff members utilized their professional experiences and personal observations, as well as Macha-do’s application, site plan, and traffic study, as the basis for their testimony. These record materials, along with the staff presentations, combined to provide evidence “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.” DeGroot, 95 So.2d at 916. Ignoring this standard constituted a departure from the essential requirements of the law.

B.

A circuit court may not re-weigh the evidence. In reviewing local administrative action, circuit courts are constrained to determine only whether the agency’s determination is supported by competent substantial evidence. A circuit court may not re-weigh the evidence to substitute its judgment for that of the agency by determining whether the evidence shows that the application was deficient:

At the circuit court level, a solitary judge quashed the Commission decision, ruling as follows: “The [homeowners] failed to show by competent substantial evidence that such use [was inconsistent with the Dania Code]” (emphasis added). This ruling was improper. Under Vaillant, the circuit court was constrained to determine simply whether the Commission’s decision was supported by competent substantial evidence. The circuit court instead decided anew whether the homeowners had shown by competent substantial evidence that the proposed use was deficient. In other words, a single judge conducted his own de novo review of the application and, based on the cold record, substituted his judgment for that of the Commission as to the relative weight of the conflicting testimony. The circuit court thus usurped the fact-finding authority of the agency.

City of Dania, 761 So.2d at 1098; see Vaillant, 419 So.2d at 626.

Re-weighing of the evidence is precisely what the circuit court did when it held:

At best, the testimony by Hialeah Gardens’ staff members cast doubt upon the conclusions and evidence submitted by Machado....
The opponents of the special exception use did not show, by competent substantial evidence, that the proposed use was adverse to the public interest.

Consideration of the fact-based testimony of the Director of Public Works and the Chief of Police, as well as other record materials, including the pretzel-like diagram of the proposed site and the memo of the Chief Zoning Officer, was, as the Florida Supreme Court has confirmed, where the circuit court’s analysis should have ended:

We reiterate that the “competent substantial evidence” standard cannot be used by a reviewing court as a mechanism for exerting covert control over the policy determinations and factual findings of the local agency. Rather, this standard requires the reviewing court to defer to the agency’s superior technical expertise and special vantage point in such matters. The issue before the court is not whether the agency’s decision is the “best” decision or the “right” decision or even a “wise” decision, for these are technical and policy-based determinations properly within the purview of the agency. The circuit court has no training or experience — and is inherently unsuited — to sit as a roving “super agency” with plenary oversight in such matters.
The sole issue before the court on first-tier certiorari review is whether the agency’s decision is lawful. The court’s task vis-a-vis the third prong of Vaillant is simple: The court must review the record to assess the evidentiary support for the agency’s decision. Evidence contrary to the agency’s decision is outside the scope of the inquiry at this point, for the reviewing court above all cannot reweigh the “pros and cons” of conflicting evidence. While contrary evidence may be relevant to the wisdom of the decision, it is irrelevant to the lawfulness of the decision. As long as the record contains competent substantial evidence to support the agency’s decision, the decision is presumed lawful and the court’s job is ended.

Dusseau, 794 So.2d at 1275-76 (citation omitted).

In this case, the circuit court substituted its judgment as to the weight of the evidence for that of the City Council, which is contrary to the law and synonymous with failing to observe the essential requirements of the law. See Blumenthal, 675 So.2d at 609; see also City of Dania, 761 So.2d at 1093; Heggs, 658 So.2d at 530.

Accordingly, we grant the Petition for Certiorari, quash the decision of the circuit court, and return this case to the circuit court for final determination consistent with this opinion. See City of Dania, 761 So.2d at 1093-94; see also Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003)(“district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice”); Blumenthal 675 So.2d at 608; Maturo v. City of Coral Gables, 619 So.2d 455, 457 (Fla. 3d DCA 1993); Orange County v. Lust, 602 So.2d 568, 572 (Fla. 5th DCA 1992); Herrera v. City of Miami, 600 So.2d 561, 563 (Fla. 3d DCA 1992); City of Ft. Lauderdale v. Multidyne Med. Waste Mgmt. Inc., 567 So.2d 955, 958 (Fla. 4th DCA 1990); City of Deland v. Benline Process Color Co., 493 So.2d 26, 28 (Fla. 5th DCA 1986); Bd. of County Comm’rs of Pinellas County v. City of Clearwater, 440 So.2d 497, 499 (Fla. 2d DCA 1983); Town of Mangonia Park v. Palm Beach Oil, Inc., 436 So.2d 1138, 1139 (Fla. 4th DCA 1983).

      . Based on personal observation and experience and from a review of Machado's site plans, the Director of Public Works testified that Machado's plan, which called for traffic entering the school property from Northwest 103rd Street to cross over the traffic attempting to exit following drop-off, back onto Northwest 103rd Street, would cause "stacking” of traffic in the westbound lane of Northwest 103rd street.
      The Chief of Police testified, based on his 27 years as a policeman and observations of behavior during drop-off and pick-up at other Hialeah Gardens schools, that placing a school at this site was dangerous.
      The Chief Zoning Officer's memo concluded that she, as well as the Public Works Director and Chief of Police all agreed:
      [t]he additional vehicles related to six hundred (600) students and forty-two (42) staff members during peak hours would cause extreme traffic congestion. Individuals making a left or right turn into the school would back up traffic in both directions on NW 103rd Street. In addition, the exiting of the school onto 103rd Street would cause chaos.


source: Caselaw Access Project

author: PADOVANO, J. ERVIN, J., PADOVANO, J. ERVIN, J.,

license: Public Domain

text:
    ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA, INC., and Manasota-88, Inc., Appellants, v. IMC PHOSPHATES, INC. and Florida Department of Environmental Protection, Appellees.
    No. 1D03-1717.
    District Court of Appeal of Florida, First District.
    July 31, 2003.
    Opinion Denying Rehearing Oct. 28, 2003.

      David G. Guest and AliM Moncrief, Tallahassee, for Appellants.
    Steven L. Brannock and Sarah C. Wein-zierl of Holland & Knight, LLP, Tampa and Lawrence E. Sellers, Jr., of Holland and Knight, Tallahassee, for Appellees.
   PADOVANO, J.

IMC Phosphates, Inc., moves to dismiss the appeal in this case on the ground that the Environmental Confederation of Southwest Florida, Inc., and Manasota-88, Inc., are not adversely affected by the order to be reviewed. In the order at issue, the Department of Environmental Protection concluded that the Confederation and Manasota-88 lacked standing to initiate a challenge to a proposed environmental permit. This decision was supported by the terms of a new statute restricting the standing of organizations, but the Confederation and Manasota-88 contend that the statute is unconstitutional. We hold that the denial of the right to initiate a challenge to the permit was an injury that is sufficient to establish the right to judicial review, and we therefore deny the motion to dismiss.

The present legal controversy evolved from a dispute over the issuance of a permit to mine phosphate. In January of 2003, the Department announced its intention to issue an environmental resource permit authorizing IMC Phosphates to engage in phosphate mining in Hardee County, near the town of Ona. The Confederation and Mansota-88 filed a timely petition for a formal administrative hearing to challenge the issuance of the permit.

As alleged in the petition for hearing, the Confederation and Manasota-88 are public interest groups organized to protect southwest Florida’s natural resources. Each group has a substantial membership in the southwest part of the state, but neither has a sufficient number of members in Hardee County to meet the group standing requirement imposed by section 403.412(6), Florida Statutes (2002). As conceded in the petition, Manasota-88 has only four members in Hardee County and the Confederation has only one member in the county.

On March 14, 2003, the Department entered an order dismissing the petition on the ground that the Confederation and Manasota-88 did not meet the statutory requirements for organizational standing. By this time, the Department had also received petitions by a number of other governmental and private organizations, all relating to the same environmental resource permit. These petitions were consolidated for hearing, and the Department informed the Confederation and Manaso-ta-88 that they could participate as inter-venors in the consolidated proceeding.

The dismissal of the petition in this case was without prejudice and with leave to amend the allegations of standing. However, the Confederation and Manasota-88 could not meet the organizational standing requirements of the new statute. Because they wished to challenge the validity of the statute on appeal, they declined to amend their petition and instead asked the Department to enter a final order of dismissal. When the Department issued its final order, the Confederation and Manasota-88 filed a timely appeal to this court. IMC Phosphates contends that the appeal should be dismissed because the Confederation and Manasota-88 have not shown that they were harmed by the order dismissing their petition before the agency. We reject this argument.

Section 120.68(1), Florida Statutes (2002) states that “[a] party who is adversely affected by final agency action is entitled to judicial review.” This statute establishes a right to seek judicial review of a final administrative decision, but limits that right to litigants who will suffer an injury by the order to be reviewed. See Legal Envtl. Assistance Found., Inc. v. Clark, 668 So.2d 982 (Fla.1996) (holding that a public interest advocacy group was not aggrieved by an order of the Public Service Commission setting conservation goals). An organization is not entitled to seek judicial review of an administrative decision merely because it has a general interest in the issue decided. See Florida Chapter of the Sierra Club v. Suwannee Am. Cement Co., Inc., 802 So.2d 520, 522 (Fla. 1st DCA 2001). Instead, an organization must show that it will suffer an injury in fact or that the action of the agency will adversely affect its individual members. Id.

The Confederation and Manaso-ta-88 were “adversely affected” by the order appealed in this case for the simple reason that the order denied them a right to assert a challenge to the permit. We need not determine whether the mining operations, if permitted, will cause an injury. The harm is that potential litigants were denied the right to initiate an action in an administrative tribunal. An order dismissing an administrative petition for lack of standing is necessarily subject to judicial review. If that were not the case, such an order could never be challenged in court. Certainly, we could not say that a litigant who files a petition that is dismissed for lack of standing cannot appeal the dismissal because he lacks standing. That is the very question presented in the appeal.

The central issue in the dispute over standing in the lower tribunal is the constitutionality of section 403.412(6), Florida Statutes (2002), which places new restrictions on the right of an organization to challenge an environmental permit. The Confederation and Manasota-88 contend that the legislative act adopting these new restrictions violates the single subject rule. We do not address that argument now, except to say that if it is correct, the order at issue must be reversed. Otherwise, the effect of the order would be to employ an unconstitutional statute to deprive a litigant of the right to seek redress in an administrative tribunal.

Under the prior law, an organization could request a hearing to challenge an environmental permit simply by filing a verified petition asserting that the challenged activity would injure Florida’s resources. See Manasota-88, Inc., v. Dep’t of Envtl. Regulation, 441 So.2d 1109, 1111 (Fla. 1st DCA 1983). Standing is much more restrictive under the terms of the 2002 revision of the statute. Subsection (6) provides in material part:

Any Florida corporation not for profit which has at least twenty-five current members residing within the county where the activity is proposed, and which was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of air and water quality, may initiate a hearing pursuant to s. 120.569 or s. 120.57.

§ 403.412(6), Fla. Stat. (2002). If the statute is valid, the Confederation and Mana-sota-88 lack standing to initiate a challenge to the petition. Although both groups have substantial memberships in southwest Florida, neither can claim to have twenty-five members in Hardee County.

One aspect of the case that obscures the issue of standing to seek judicial review is that the constitutional argument regarding the validity of the statute has not yet been presented. If an administrative agency had the power to address the constitutionality of a state law and if, in fact, the Department had declared the statute in this case to be valid, there would be little question that the order would be subject to judicial review. The argument has not yet been presented, though, because an administrative agency cannot pass on the constitutionality of a state law. If we were to hold that the Confederation and Manaso-ta-88 have no right to appeal, the validity of the statute could escape review in the courts.

The new statute contains another feature that is relevant to the arguments made on the motion to dismiss the appeal. It provides that an organization failing to qualify for standing to initiate an administrative proceeding may nevertheless participate as an intervenor. Subsection 403.412(5) states in pertinent part:

In any administrative, licensing, or other proceedings authorized by law for the protection of the air, water, or other natural resources of the state from pollution, impairment, or destruction, ... a citizen of the state shall have standing to intervene as a party on the filing of a verified pleading asserting that the activity, conduct, or product to be licensed or permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state.

§ 403.412(5), Fla. Stat. (2002). This subsection goes on to define an intervenor as a litigant who joins an “ongoing” administrative proceeding. To emphasize this point, the statute then provides that an intervenor has no right to “institute, initiate, petition for, or request” an administrative hearing. It follows that an organization can challenge a proposed environmental permit under subdivision (5) only if someone else having standing has already initiated a proceeding to challenge the same permit.

IMC Phosphates argues that the Confederation and Manasota-88 have not been adversely affected by the Department’s order because they are still entitled to intervene in the consolidated proceeding. The weakness in this argument is that it assumes a litigant who is allowed to intervene has the same rights as a litigant who can initiate the action as a party. That is simply not the case. If the Confederation and Manasota-88 have been wrongfully denied the right to initiate their own challenge to the permit, the harm cannot be cured merely by allowing them to intervene in a proceeding controlled by other litigants.

Florida courts have held that the rights of an intervenor are subordinate to the rights of the parties. See Hoechst Celanese Corp. v. Fry, 693 So.2d 1003 (Fla. 3d DCA 1997); Bay Park Towers Condominium Ass’n, Inc. v. H.J. Ross & Assocs., 503 So.2d 1333 (Fla. 3d DCA 1987). This principle is incorporated in rule 1.230 of the Florida Rules of Civil Procedure which states that “intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding.” The same principle has been applied in administrative proceedings. See Humana of Fla., Inc. v. Dep’t of Health and Rehab. Servs., 500 So.2d 186, 188 (Fla. 1st DCA 1986). As these authorities illustrate, the rights of an intervenor are much more limited than the rights of a party.

Intervention is a dependent remedy in the sense that an intervenor may not inject a new issue into the case. See Nat’l Wildlife Fed’n Inc. v. Glisson, 531 So.2d 996 (Fla. 1st DCA 1988). The Confederation and Manasota-88 might be able to make an argument that would persuade the Department to deny the permit, but that would not be of any benefit to them if the argument did not fit within an issue raised by one of the parties. Furthermore, the rights of an intervenor are conditional in that they exist only so long as the litigation continues between the parties. For example, a voluntary dismissal by the party asserting a claim will generally foreclose the rights of an intervenor who wished to address that claim. See Humana, 500 So.2d at 187; Colucci v. Greenfield, 547 So.2d 224 (Fla. 3d DCA 1989); Dep’t of Health and Rehab. Servs. v. Alice P., et al., 367 So.2d 1045 (Fla. 1st DCA 1979). Any right the Confederation and Manasota-88 might have to participate as intervenors would be lost altogether if the parties decide to settle the case or voluntarily dismiss it.

For these reasons, we conclude that the Confederation and Manasota-88 are adversely affected by the order denying their right to a formal administrative hearing on the proposed environmental permit. Because they have shown that the order is subject to judicial review under section 120.68(1), Florida Statutes, the court has jurisdiction to address the merits of the appeal.

Motion denied.

POLSTON, J., concurs; ERVIN, J., dissents with opinion.

ERVIN, J.,

dissenting.

I cannot agree with the majority’s conclusion that, as applied to the facts in this ease, “the denial of the right to initiate a challenge to the permit was an injury that is sufficient to establish the right to judicial review” (emphasis added) under section 120.68(1), Florida Statutes (2002). If the appellants, Environmental Confederation of Southwest Florida, Inc., and Mana-sota-88, Inc., had been foreclosed altogether from the right to participate in the ongoing administrative proceeding, then I could agree that would be a sufficient demonstration of injury. The majority, however, assumes as a matter of law, without requiring appellants to make any further showing, that because their standing has been restricted by section 403.412(5), Florida Statutes (2002), they have necessarily been injured. I cannot comprehend how we can reach this conclusion until appellants make a factual display of injury. In other words, how can we possibly know, in the absence of appellants actually having availed themselves of the opportunity to participate in the hearing as intervenors— an opportunity they deliberately declined — whether their ability to carry out their challenge to the permit application was in any way “adversely affected” by the revised statute so as to confer standing for judicial review?

In my judgment, the motion to dismiss the appeal should be granted because appellants have as yet failed to show how they have been adversely affected, an essential requisite under the Administrative Procedure Act for bringing an appeal from a final order. It is well established that one’s standing for the purpose of obtaining judicial review is more restrictive than standing to participate as a party in an administrative hearing. As explained in Legal Environmental Assistance Foundation, Inc. v. Clark, 668 So.2d 982 (Fla.1996), a broader zone of party representation at the administrative level is permitted than at the appellate level. For example, in rulemaking, a large number of persons may be invited to participate as parties so as to provide information to the agency concerning a broad spectrum of policy considerations affecting proposed rules. Yet a person who participates in such proceeding does not necessarily possess any interests that are adversely or even substantially affected. Id. at 987 (quoting Daniels v. Fla. Parole & Probation Comm’n, 401 So.2d 1351 (Fla. 1st DCA 1981)). See also Fox v. Smith, 508 So.2d 1280, 1281 (Fla. 3d DCA 1987). Pertinent case law also makes clear that appellants’ general environmental concerns do not confer standing as a means of attaining judicial review. See Fla. Chapter of the Sierra Club v. Suwannee Am. Cement Co., 802 So.2d 520, 522-23 (Fla. 1st DCA 2001) (“An assertion of standing based upon a generalized interest in the environment ... is insufficient. ...”).

I acknowledge that at some point in the proceeding, had appellants participated as intervenors, they could possibly make a showing of harm resulting from the occurrence of a future event, such as the settlement of the case by the parties, thereby precluding them from going forward with their challenge, or by entry of a final order granting the permit. It is also possible that they and the opposing parties might be successful in their protest to the application, which would result in the mooting of appellants’ constitutional claim. Nevertheless, at this juncture, all of appellants’ fears of harm rest on conjecture and speculation, without any showing of present injury.

In my judgment, this case should be controlled by the rule stated in Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), in which an inmate sought to challenge an administrative rule concerning disciplinary confinement and the forfeiture of gain-time for disciplinary violations. In denying him standing, we concluded that Jerry had made no showing of injury that was accompanied by continuing adverse effects. Among other things, he failed to establish that he was serving disciplinary confinement or that his existing prison sentence had been subjected to loss of gain-time. Any prospect of future injury rested on the likelihood that he would again be subjected to disciplinary confinement, because of possible future infractions of the rule. We stated:

Whether this will occur, however, is a matter of speculation and conjecture and we will not presume that Jerry, having once committed an assault while in custody, will do so again. To so presume would result only in illusory speculation which is hardly supportive of issues of “sufficient immediacy and reality” necessary to confer standing.

Id. at 1236.

The majority’s determination to deny the motion to dismiss depends entirely upon the assumption that because appellants have been denied full party status to initiate a challenge to the permit and are relegated to the subordinate role of inter-venors they have, as a matter of law, without any showing of injury in fact, adequately demonstrated harm. This court is thereby forced to address a constitutional issue that would ordinarily be considered premature. By permitting this unwarranted review, the majority’s decision is contrary to the long-established rale that courts need not address the constitutionality of a statute unless it is absolutely necessary to the resolution of the case. See In re Estate of Sale, 227 So.2d 199, 201 (Fla.1969). And, more to the point, courts will not decide a constitutional issue in the absence of a showing of justiciable controversy between the parties.

Recently, in State v. Florida Consumer Action Network, 830 So.2d 148 (Fla. 1st DCA 2002), a complaint for declaratory judgment was brought seeking a declaration that chapter 99-225, Laws of Florida, a comprehensive bill addressing multiple aspects of civil litigation, was unconstitutional because it covered more than a single subject. In reversing the lower court’s final summary judgment granting declaratory relief and in remanding the case to the trial court with directions to dismiss the complaint with prejudice, we noted that the plaintiffs’ alleged claims of injury were nonspecific and hypothetical and did no more than question the constitutionality of the statute based on vague, general fears of possible future harm.

If a plaintiff cannot maintain an action for declaratory judgment as a means of attacking a statute’s constitutional validity because of a failure to assert facts demonstrating injury, I fail to understand why an appeal from an administrative order should be available to appellants as a vehicle for a de novo constitutional challenge in the absence of any display by them of present harm. It appears to me that appellants’ primary interest is not in contesting the issuance of a mining permit, but rather in asserting a constitutional challenge to section 403.412(5), based on the constitution’s single-subject provision. By allowing the appeal to proceed on a constitutional issue in the absence of any demonstration of injury that has either occurred or is imminently threatened, we will essentially engage in the sterile exercise of issuing an advisory opinion. I would dismiss this appeal.

ON REHEARING

PADOVANO, J.

IMC Phosphates contends that the decision in this case conflicts with the recent decision of the court in Environmental Confederation of Southwest Florida, Inc., Manasota-88 v. State of Florida, Department of Environmental Protection, 852 So.2d 349 (Fla. 1st DCA 2003), a case presenting a constitutional challenge to the same statute. There, the court dismissed an appeal from a final order in an action for declaratory relief, on the ground that the single subject issue had been rendered moot by a reenactment of the statute in 2003.

The essential difference is that the appeal in this case is an appeal from an adverse decision made under the authority of the statute, before the alleged defect in the statute was corrected. This is not an abstract issue like the one remaining in the declaratory judgment case in the wake of the reenactment. Whether the statute violated the single-subject rule before it was reenacted is a question that is not a proper subject for declaratory relief. The answer to that question is purely academic. In contrast, the issue in this case involves a use of the statute at a time when it was alleged to be unconstitutional. The statute was employed to deny the Confederation and Manasota-88 the right to initiate a challenge to a proposed permit.

In the present case, the issue would be moot only if the statute as reenacted in 2003 can be applied retroactively to the date of denial. We need not explore this point, however, because IMC Phosphates has yet to make a proper claim that the appeal in this case is moot. The only argument made in the motion to dismiss the appeal was that the Confederation and Manasota-88 lacked standing. We addressed that claim in the main opinion. IMC Phosphates’ current argument that the appeal is moot was presented to this court for the first time in its motion for rehearing. The mootness argument could have been made much earlier in this case, as it apparently was in the declaratory judgment case.

IMC Phosphates is not in a position to seek rehearing on the ground that the court overlooked or misunderstood its argument; the argument simply was not made. Rule 9.330 of the Florida Rules of Appellate Procedure states in material part that a motion for rehearing “shall not present issues not previously raised in the proceeding.” By the authority of this rule, we deny IMC Phosphates’ motion for rehearing.

The Department of Environmental Protection has also filed a motion for rehearing. This motion refers only to matters that were properly before the court, but it does not reveal any error in the decision. Accordingly, we deny the Department’s motion for rehearing, as well.

POLSTON, J., concurs. ERVIN, J., dissents with opinion.

ERVIN, J.,

dissenting.

Although I will not restate what I said in my original dissent to the majority’s opinion, I consider it important to discuss an issue raised in appellee IMC Phosphates Company’s motion for rehearing and rehearing en banc, which IMC did not have the opportunity to mention in its initial motion to dismiss. Appellee points out that subsequent to this court’s decision, another panel of this court dismissed the appeal of the same appellants in a companion case, because appellants’ single-subject constitutional challenge to section 403.412(6), Florida Statutes, had become moot due to the legislature’s readoption of the Florida Statutes on July 1, 2003. Envtl. Confed’n of S.W. Fla., Inc. v. Dep’t of Envtl. Protection, 852 So.2d 349 (Fla. 1st DCA 2003) (Environmental Confederar tion II).

IMC argues that there is no more practical reason to be served by allowing the appeal to proceed in this case than there was in the companion case, and I agree. In both appeals, appellants have sought nothing more than a decision from this court declaring that the statute restricting standing violates the constitution’s demand that every law embrace but one subject. The majority in the present case, in refusing to dismiss the appeal, takes the position that the issue before this court in the declaratory-judgment suit was only abstract, apparently because the case had not yet ripened into a case in controversy, unlike the present appeal, in which the statute was used as the basis for denying appellants’ right to challenge a proposed permit application as parties, before the alleged single-subject defect had been cured by its readoption.

I am unaware of any language in Environmental Confederation II that supports a conclusion that the reason the panel there dismissed the appeal was due to the lack of an existing controversy between the parties. In fact, the panel acknowledged “that appellants [had] initiated their challenge during the window period for raising a single subject claim, [but] they have failed to articulate any practical purpose that would be served by allowing this appeal from the denial of declaratory and injunctive relief to continue now that the window period has closed.” Id. at 350. Thus, despite the clearly established rule that a law passed in violation of the single-subject requirement remains invalid until reenacted, and despite the initiation of the suit before the statute’s readoption, the panel in Environmental Confederation II essentially concluded there were no facts appellants could allege that would make their challenge viable. Although the opinion does not state why there is a lack of any practical reason for the appeal not to proceed, it is inconceivable to me that the court based its decision on the absence of a controversy that had either not been alleged or was incapable of being alleged. In so concluding, I have relied on the records in both the present appeal and in Environmental Confederation II, which may be judicially noticed. See Sinclair v. State, 853 So.2d 551 n. 2 (Fla. 1st DCA 2003). The pertinent facts in both cases are hereafter summarized.

In Environmental Confederation II, appellants, on August 14, 2002, filed their declaratory-judgment suit, asserting the constitutional invalidity of section 403.412(6), Florida Statutes (2002). They amended their complaint on December 18, 2002, to allege, among other things, their intent to file a challenge to a notice of a mining permit they anticipated would be issued within the very near future. They further alleged such challenge would be barred if the newly enacted statute restricting standing were held constitutional. Thereafter, both appellants and the Department of Environmental Protection (DEP) filed motions for summary judgment. Appellants asserted in an affidavit supporting their motion that they had, after filing their complaint, received notice of DEP’s intent to issue the mining permit, and that they were preparing an immediate challenge to the permit. Although the challenge had not been perfected by the time of the hearing for summary judgment, appellants asked the trial court to judicially notice that they had filed their administrative challenge to the permit notice on February 11, 2003. On March 4, 2003, the court entered summary judgment for DEP and dismissed appellants’ complaint with prejudice, holding that they had faked to allege an injury in fact that would state a case or controversy sufficient to bring an action for declaratory judgment, and that section 403.412(6) did not violate the single-subject requirement. Regarding the first reason for dismissal, the trial court explained: “Because the plaintiffs fail to present any concrete case in which they are precluded from participating in an administrative proceeding due to the new requirements, they fail to state a case or controversy within this Court’s declaratory judgment subject matter jurisdiction.” The “concrete case” the court alluded to occurred the following month, when, during the pendency of the appeal from the complaint’s dismissal, DEP, on April 22, 2003, entered the order at issue in this appeal, dismissing appellants’ challenge to the mining permit due to their lack of standing as a result of the more restrictive standing requirements of section 403.412(6).

Appellants recited the above facts in their brief in Environmental Confederation II, and they are supported by the record. I consider it reasonably clear that the lower court erred in ruling that because appellants failed to show they had received an administrative denial of their challenge to the mining permit, they were unable to establish the existence of an actual case or controversy. The rule is firmly established that a suit for declaratory judgment will be entertained where claims are “ ‘present and indicative of threatened litigation in the immediate future, which seems unavoidable, even though the differences between such parties as to their legal rights have not reached the stage of an actual controversy.’ ” Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808, 811 (1946) (Brown, J., concurring) (quoting 16 Am.Jur. § 10 at 282). Accord Hardwick v. Moore, 795 So.2d 970, 972 (Fla. 1st DCA 2001) (“[I]n an action for declaratory judgment, the plaintiffs need only show an imminent controversy.”). Indeed, the statute pertaining to declaratory judgments itself provides that such relief “may be rendered by way of anticipation with respect to any act not yet done or any event which has not yet happened.” § 86.051, Fla. Stat. (2002).

It is abundantly obvious in the record that appellants were able to show an “imminent controversy.” Consequently, I doubt very much that the panel’s dismissal of the appeal in Environmental Confederation II was grounded on the trial court’s reasoning. Even if the trial court was correct, a case in controversy had clearly ripened after appellants’ appeal from the summary judgment, when DEP entered the administrative order dismissing appellants’ challenge, a fact of which appellants had informed the panel in Environmental Confederation II. Nevertheless, the panel essentially decided that even if the statute could be considered to violate the single-subject requirement, appellants had not alleged, nor could they amend their complaint to allege, any conceivable set of facts that would establish a legal cause of action.

The only rational explanation for the panel’s ruling is, as the majority briefly mentioned above, that the appeal would become moot if section 403.612(2) applied retroactively to the date of the denial of appellants’ challenge. Under such theory, it would be immaterial whether the 2002 statute violated the single-subject requirement, if the statute, when readopted in 2003, were determined to be procedural rather than substantive. The rule has long been established that procedural or remedial statutes are applied retroactively to acts preceding the effective date of their enactment. See Sullivan v. Mayo, 121 So.2d 424 (Fla.1960). Statutes are procedural that define the proper parties in suits litigating substantive rights. See Avila S. Condo. Ass’n v. Kappa Corp., 347 So.2d 599, 608 (Fla.1977); Fla. Wildlife Fed’n v. Dep’t of Envtl. Regulation, 390 So.2d 64, 67 (Fla.1980).

This court’s opinion in Rothermel v. Florida Parole & Probation Commission, 441 So.2d 663 (Fla. 1st DCA 1983), approved sub nom. Griffith v. Florida Parole & Probation Commission, 485 So.2d 818 (Fla.1986), is highly illustrative of the above rule. There the court was asked to decide whether it retained jurisdiction over an appeal taken from an order that had preceded the effective date of an amendment to section 120.52(10), Florida Statutes (Supp.1982), which denied inmates’ standing to participate as parties to certain proceedings, as well as their right to seek administrative review from orders entered in such proceedings. Noting that the legislature did not expressly state whether the statute was intended to operate prospectively or retrospectively, the court continued:

Since no clear intent is expressed in the subject legislation, its provisions will apply retrospectively if they are remedial or procedural and do not affect substantive or vested rights. There can be little doubt that the relevant portions of Chapter 83-78 are of the kind which affect only remedial or procedural statutory provisions. It is generally recognized that no vested rights exist as to a particular remedy or mode of procedure.

Id. at 664. The court thereupon applied the rule that cases which remain pending on appeal are affected by legislative acts pertaining to remedy or procedure, and dismissed the appeal.

I acknowledge, as the majority observes, that appellees have not raised any specific contention in their motion to dismiss that the appeal has now become moot because section 403.412(6) should be applied retroactively. Neither, for that matter, did appellees assert such issue before the panel in Environmental Confederation II. Nevertheless, a court’s lack of jurisdiction over an appeal is obviously one that it may sua sponte notice. See Johnson v. State, 852 So.2d 351 (Fla. 1st DCA 2003); Duszlak v. Wands, 803 So.2d 779 (Fla. 1st DCA 2001); Keel v. State, 790 So.2d 563 (Fla. 1st DCA 2001). Because a statute’s application is not dependent upon the posture of the appeal, i.e., whether by direct appeal from an administrative order, or from a circuit court’s order, I am of the firm belief that this panel should, without further delay, determine, as did the panel in Environmental Confederation II, that this appeal should be dismissed as moot because no practical reason would be served by allowing it to continue.

      . Section 120.68(1) provides, in pertinent part, as follows: "A party who is adversely affected by final agency action is entitled to judicial review." (Emphasis added.)


author: DAVIS, Judge.

text:
    In the Interest of S.C., a child. P.C., Appellant, v. Department of Children and Family Services, Appellee.
    Nos. 2D02-4576, 2D02-5357.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2003.
    Rehearing Denied Sept. 16, 2003.
    Norman A. Palumbo, Jr., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

P.C., the mother, challenges the circuit court order terminating her parental rights to her son, S.C. The mother also appeals the circuit court’s denial of her motion to set aside the default. We affirm both orders without comment. We write, however, to clarify the statutorily prescribed result of a parent’s failure to appear at an adjudicatory hearing for termination of parental rights.

Section 39.801(3)(d), Florida Statutes (2002), provides in part:

If a parent appears for the advisory hearing and the court orders that parent to personally appear at the adjudicatory hearing for the petition for termination of parental rights, stating the date, time, and location of said hearing, then failure of that parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights.

(Emphasis added.) See also Fla. R. Juv. P. 8.525(d).

When the mother failed to appear for the adjudicatory hearing, the trial court used what appears to be a default proceeding whereby, upon motion by counsel for the Department of Children and Family Services, the clerk signed and entered a “default.” This type of procedure usually is reserved for civil proceedings where a party fails to file a required pleading. See Fla. R. Civ. P. 1.500.

While interchanging the words “consent” and “default” may be acceptable, nothing in the statute or rule allows the clerk of court to sign or enter a default against a parent who fails to appear. Rather, the statute contemplates that the court may consider the mother’s absence to be her consent to the petition and enter the final judgment accordingly.

Because the termination of the mother’s parental rights here was based on the court’s finding that the mother, by her absence, had consented to the allegations of the petition, as allowed by the statute, any error is harmless.

Affirmed.

FULMER and KELLY, JJ., concur.

      . Although in In re C.R., 806 So.2d 646 (Fla. 2d DCA 2002), this court recognized the trial court’s authority to enter a default against a parent for nonappearance at an adjudicatory hearing in a termination proceeding, pursuant to a strict reading of the statutory language, “consent” is the preferred term. See also Fla. R. Juv. P. Forms 8.965 and 8.966 (providing that a parent’s failure to appear at an arraignment or an adjudicatory hearing on a petition for dependency may result in "consent by default”).


author: PER CURIAM.

text:
    Andre JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1399.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2003.
    Rehearing En Banc and Certification Denied Oct. 17, 2003.
    Andre Johnson, m proper person.
    Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Lenoir v. State, 804 So.2d 507 (Fla. 3d DCA 2001).


text:
    Tony Lover VAUGHN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1725.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2003.
    Rehearing and Rehearing En Banc Denied Oct. 17, 2003.

      Bennett H. Brummer, Public Defender, and Todd G. Seher, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before GERSTEN, GODERICH and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See State v. Hernandez, 718 So.2d 833 (Fla. 3d DCA 1998); Jimenez v. State, 715 So.2d 1038 (Fla. 3d DCA 1998).


author: SILBERMAN, Judge.

text:
    John J. PICHOWSKI, as Successor Trustee, Tampa Interstate 75 Limited Partnership, Brandon West, L.L.C. and I-75/Palm River Road, L.L.C., Appellants, v. FLORIDA GAS TRANSMISSION COMPANY, Appellee.
    Nos. 2D02-2688, 2D02-2836, 2D02-2893.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2003.
    Rehearing Denied Oct. 10, 2003.

      S. Cary Gaylord and Paul D. Bain of Gaylord, Merlin, Ludovici, Diaz & Bain, Tampa, for Appellant John J. Pichowski, as Successor Trustee.
    James M. Spoonhour and John T. Wet-tach, Jr. of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellant Tampa Interstate 75 Limited Partnership.
    John N. Muratides and Darrin J. Quam of Stearns, Weaver, Miller, Weissler, Alha-deff & Sitterson, P.A., Tampa, for Appellants Brandon West, L.L.C. and I 75/Palm River Road, L.L.C.
    David M. Corry and Brian A. Bolves of Brieklemyer, Smolker & Bolves, P.A., Tampa, for Appellee.
    Gordon H. Harris, Kent L. Hipp, and Kurtis T. Bauerle of Gray, Harris & Robinson, P.A., Orlando, for Amicus Curiae Gulfstream Natural Gas System, LLC.
   SILBERMAN, Judge.

This consolidated appeal is from the trial court’s orders allowing appellee Florida Gas Transmission Company (FGTC) to acquire possession of and title to real property in advance of a final judgment in an eminent domain action. FGTC obtained the orders pursuant to the “quick-take” provisions of chapter 74, Florida Statutes (2001). Appellant John J. Pichowski, as successor trustee under an unrecorded trust agreement dated April 16, 1991, appeals the order of taking as to parcel RHB 111.005. Appellants Tampa Interstate 75 Limited Partnership, Brandon West L.L.C., and I 75/Palm River Road, L.L.C., challenge the order of taking as to parcels RHB 104.000 and RHB 105.000. Because FGTC is not entitled to use the quick-take provisions of chapter 74, we reverse. The appellants also challenge the trial court’s conclusion that FGTC’s pre-suit offer of compensation, made pursuant to section 73.015, Florida Statutes (2001), was valid. As to this issue, we affirm without discussion.

FGTC sued to condemn property to construct, operate, and maintain a natural gas pipeline facility. The appellants do not dispute FGTC’s right to use the general eminent domain procedures provided for under chapter 73, Florida Statutes (2001). Instead, they challenge FGTC’s use of the quick-take procedures described in chapter 74.

Section 74.011 specifies that certain entities, including public utility corporations, may use the quick-take procedures contained in section 74.021. In the trial court, FGTC claimed that it qualified as a public utility corporation and that it was entitled to use the quick-take procedures. The appellants argued that FGTC did not qualify as a public utility corporation because it is a private, out-of-state, natural gas transmission company that transports and delivers natural gas at wholesale to direct industrial customers. The trial court concluded that FGTC was authorized to acquire property under the quick-take procedures.

In reviewing the trial court’s interpretation and application of Florida law, the standard of review on appeal is de novo. See Gordon v. Regier, 839 So.2d 715, 718 (Fla. 2d DCA 2003); Gilliam v. Smart, 809 So.2d 905, 907 (Fla. 1st DCA 2002). Eminent domain statutes are strictly construed against the agency asserting the power of eminent domain. Peavy Wilson Lumber Co. v. Brevard County, 159 Fla. 311, 31 So.2d 483, 485 (1947). Moreover, strict compliance with the law is required when public utilities use the sovereign’s grant of the right of eminent domain. Valleybrook Developers, Inc. v. Gulf Power Co., 272 So.2d 167, 169 (Fla. 1st DCA 1973).

Although section 74.011 does not define the term “public utility corporation,” other statutes provide definitions in various contexts. FGTC suggests that the various statutes support its contention that it qualifies as a public utility corporation. We disagree.

Section 366.02(1), Florida Statutes (2001), includes suppliers of gas to or for the public within Florida in its definition of “public utility,” but it excludes “any natural gas transmission pipeline company making only sales or transportation delivery of natural gas at wholesale and to direct industrial consumers.” FGTC does not qualify as a public utility under section 366.02(1) because it falls within the exclusion.

Section 366.82(1), Florida Statutes (2001), defines “utility” as any person or entity that provides electricity or natural gas at retail to the public. Again, FGTC does not meet this definition because it does not sell natural gas at retail to the public. Other statutes cited by FGTC, such as sections 125.42(1), 177.031(7)(b), and 876.37(3), Florida Statutes (2001), also provide definitions of the term “public utility.” Those statutes do not support FGTC’s position because the definitions are limited for use in specific statutory schemes that are not pertinent to eminent domain proceedings, or they do not apply based on the evidence presented as to the nature of the business conducted by FGTC.

Chapters 180 and 361, Florida Statutes (2001), authorize the exercise of eminent domain powers by certain entities for various purposes. For example, chapter 180 grants eminent domain powers to municipalities and private companies that construct or operate water works systems, sewerage systems, sewage treatment works, garbage collection and garbage disposal plants. See §§ 180.06, .22. FGTC is neither a municipality nor a qualified private company under the terms of chapter 180.

Section 361.05 allows qualified natural gas transmission pipeline companies to exercise the right of eminent domain, but it does not expressly authorize a natural gas company to use the quick-take provisions of chapter 74. See § 361.05. This contrasts with sections 361.025 and 361.08, which specifically grant to railroad companies and coal pipeline companies the power of eminent domain under chapter 73 and the right to use the quick-take procedures under chapter 74.

Strictly construing the statutory language, as we are required to do, does not permit us to adopt the expansive interpretation of section 361.05 offered by FGTC. FGTC’s interpretation requires the addition of words to section 361.05 in order to give natural gas transmission companies the right to use the quick-take procedures. See Armstrong v. Edgewater, 157 So.2d 422, 425 (Fla.1963) (“When there is doubt as to the legislative intent or where speculation is necessary, then the doubts should be resolved against the power of the courts to supply missing words.”). This is not a situation where the addition of words is necessary to prevent the statute from having an absurd meaning or to make it conform to obvious legislative intent. See id. Accordingly, we reject FGTC’s argument concerning section 361.05.

FGTC also asserts that the title of chapter 361, “Public Utilities, Special Powers,” supports its contention that FGTC is a public utility corporation that is entitled to use the quick-take procedures contained in chapter 74. Although a statute’s title may be helpful to construe the statute if it is ambiguous, see Fajardo v. State, 805 So.2d 961, 963 (Fla. 2d DCA 2001), review denied, 828 So.2d 385 (Fla.2002), neither the title nor the contents of chapter 361 address the availability of quick-take procedures under chapter 74 for natural gas companies. Moreover, “the rules of construction are reserved for cases in which a fair reading of the statute leaves the judiciary in genuine doubt about the correct application of the statute.” Id. at 963-64. As the supreme court noted in State v. Egan, 287 So.2d 1, 4 (Fla.1973), “[S]ueh rules are useful only in case of doubt and should never be used to create doubt, only to remove it.”

Additionally, if we look to the title and substance of chapter 361 for guidance in determining whether FGTC is a public utility corporation within the meaning of chapter 74, we would also appropriately consider the title and substance of chapter 366. Chapter 366 is titled “Public Utilities,” but as noted previously, the definition of “public utility” contained in section 366.02(1) specifically excludes natural gas transmission pipeline companies that only sell or transport natural gas at wholesale and to direct industrial consumers.

We are required to read the various statutes together in an effort to harmonize them and to give effect to their terms. See Howarth v. City of DeLand, 117 Fla. 692, 158 So. 294, 298 (1934) (stating that courts must avoid a statutory construction that will place one statute in conflict with others covering the same general field and that when possible, in construing two statutes, courts have a duty to preserve the force of both without destroying their evident intent); Moonlit Waters Apts. Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996) (reiterating that in construing a statute, courts look first to the statute’s plain meaning, and courts also apply the principle of ex-pressio unius est exclusio alterius, that is, the mention of one thing in a statute implies the exclusion of another). After considering the parties’ various arguments as to the proper interpretation of the relevant statutes, we reject FGTC’s argument that the legislature intended to give entities such as FGTC the power to use the quick-take procedures contained in chapter 74.

Apart from our consideration of statutory language, we note that in Higgs v. City of Fort Pierce, 118 So.2d 582, 585 (Fla. 2d DCA 1960), this court adopted the definition of public utility that was set forth in Southern Ohio Power Co. v. Public Utilities Commission, 110 Ohio St. 246, 143 N.E. 700 (1924):

To constitute a “public utility,” the devotion to public use must be of such character that the product and service is available to the public generally and indiscriminately, or there must be the acceptance by the utility of public franchises or calling to its aid the police power of the state.

See also Village of Virginia Gardens v. City of Miami Springs, 171 So.2d 199, 201 (Fla. 3d DCA 1965) (applying the same definition).

Under this definition, FGTC does not qualify as a public utility corporation because it does not supply the public with natural gas; it is not devoted to a public use; it transports natural gas to industrial customers and makes no retail sales to the public; its product and services are not available to the public generally and indiscriminately; and it has not accepted any public franchises. See also Devon Aire Villas Homeowners Ass’n No. 4, Inc. v. Americable Assocs. Ltd., 490 So.2d 60, 61 (Fla. 3d DCA 1985) (noting that a public utility is typically a creature of statute that is impressed with a public use, provides services generally considered to be essential to society, and enjoys certain powers usually reserved to the sovereign).

Finally, FGTC argues that Walker v. Florida Gas Transmission Co., 491 So.2d 1286 (Fla. 1st DCA 1986), supports its argument that it is entitled to use the quick-take procedures. Walker recognizes that the installation of gas pipe lines is for a public purpose and that the right of eminent domain may be exercised by a private company for the construction, operation, and maintenance of gas plants and distribution systems. Id. at 1287. However, while Walker supports the use of eminent domain proceedings under chapter 73, it does not address the use of the quick-take procedures contained in chapter 74.

Because FGTC is not a public utility corporation entitled to use the quick-take provisions of chapter 74, the orders allowing FGTC to take possession of and title to the properties before the entry of final judgment are reversed, and we remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

WHATLEY and NORTHCUTT, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Sheila WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-482.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2003.
    Rehearing Denied Oct. 3, 2003.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Sr. Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

Sheila Wilson was charged with driving under the influence of alcohol resulting in death and driving while license suspended resulting in death, based on an accident she was involved in on August 19, 1997, when she had a blood alcohol level of .175. She pleaded to the charges and was sentenced in accordance with the plea agreement to twelve years’ incarceration followed by two years’ probation for the first charge and to time served for a lessor-included offense of the second. On appeal, her counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and In re Appellate Court Response to Anders Briefs, 581 So.2d 149 (Fla.1991), finding no meritorious argument to support the contention that the trial court committed reversible error in this case, except for a minor sentencing error. After complete review of the appellate record, we agree.

In the order of probation, the trial court imposed condition eighteen, which precluded Ms. Wilson from associating with “persons who use illegal drugs.” In Flor v. State, 658 So.2d 1176 (Fla. 2d DCA 1995), we found such a condition unenforceable because it was too vague and capable of unintentional violation. See also Callaway v. State, 658 So.2d 593, 595 (Fla. 2d DCA 1995). The trial court found to the contrary, as expressed in its order on Ms. Wilson’s motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), that condition eighteen was permissible based on section 948.03(j), Florida Statutes (1997). The trial court reasoned that the statute precluded probationers from associating with persons engaged in criminal activities, and because persons using illegal drugs are engaging in criminal activities, Ms. Wilson may be precluded from associating with them. We appreciate the argument but the trial court is bound by our prior decisional law, as expressed in Flor and Callaway finding this condition unenforceable.

Accordingly, we affirm the convictions and sentences except that we remand the case to the trial court with instructions to strike that portion of condition eighteen of the order of probation that precludes Ms. Wilson from associating with persons who use illegal drugs.

DAVIS and CANADY, JJ., Concur.