STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORGANIZED MIGRANTS IN COMMUNITY ) ACTION (OMICA), et al., )

)

Petitioner, )

)

vs. ) CASE NO. 76-2114RX

)

DEPARTMENT OF COMMERCE, )

)

Respondent. )

)

FINAL ORDER APPEARANCES

For Petitioner: Robert A. Williams, Esquire

Catherine B. Tackney, Esquire Florida Rural Legal Services, Inc. Post Office Box 1109

Immokalee, Florida 33934

For Respondent: Dan F. Turnbull, Esquire

Department of Commerce Room 401, Collins Building Tallahassee, Florida 32304

1. This proceeding is a challenge to a memorandum issued by the Respondent, Florida Department of Commerce. The Petitioners, a farm worker organization and a group of farm workers, challenge this memorandum as falling under the definition of a rule in Section 120.52(14), F.S., and further state that it is an invalid rule. The Petition is filed under Section 120.56, F.S., which permits substantially affected persons to challenge the validity of administrative rules before this division. The Respondent has stipulated that the Petitioners are substantially affected by the memorandum in question, but denies that the memorandum in question falls under the definition of a rule and denies that it is invalid. A hearing was convened in Tallahassee, Florida, on February 7, 1977 to consider the merits of the Petition. The memorandum in question was issued October 4, 1976, by Gordon M. Punshon of the Division of Employment Security. This memorandum was written as part of the culmination of the efforts of the Division of Employment Security to administer the Crew Chief Registration Law, Chapter 450, F.S. The Respondent has had some difficulty in achieving a uniform interpretation in this law among all its employees, including those whose job it is to enforce and report violations of these statutes. The Respondent agency convened a work shop in Orlando, Florida in February of 1976 to discuss problems experienced under this law. This memorandum was a communication from the administration in Tallahassee, Florida, to the Field Compliance Officers of the Department of Commerce to assist them in arriving at a uniform interpretation and an aid in the enforcement process.

   The body of the memorandum states:

   
   

   "Crew Chief Compliance Officers and Local Office representatives who are involved in the Florida Crew Leader Registration Program will use the following memorandum as a clarification of the requirements of and exceptions to the Florida Farm Labor Registration Rule. If other registration problems not included in the statements below are encountered, please contact Mr. Dan B. Glass, Administrator of Rural Manpower Services, . . ."

   
   

   Following this introductory paragraph the memorandum in question gives two and a half pages of hypothetical situations and explanations as to who must register as a farm labor contractor under the act. (A copy of this memo is attached to this Order as an appendix.)

   
   

2. Field Compliance Officers of the Respondent, Department of Commerce, use this memorandum to assist them in enforcing the above statute.

   
   

   The statute in question, Section 450.28(1), F.S., states:

   
   

   "(1) Any person, who, for a fee or other valuable consideration, recruits, transports into or within the state, supplies or hires at any one time in any calendar year ten (10) or more farm workers to work for, or under the direction, supervision, or control of, a third person; or

   (b) Any person who recruits, transports into or within the state, supplies or hires at any one time in any calendar year ten (10) or more farm workers and who, for a fee or other valuable consideration, directs, supervises, or controls all or any part of the work of such workers.

   
   

3. The memorandum in question clarifies and interprets this statute by giving examples and explanations as to who must register as a farm labor contractor. The Petitioners claim that the memorandum is a rule as defined in Chapter 120, F.S., and must, be so adopted as a rule in order to be used by the Department of Commerce. Under the authority of the decision in Straughn v. O'Riordan, 338 So.2d 832 (1976), it cannot be disputed that an agency's statement, policy or interpretation of a law that fall under the definition of a rule must be so adopted in order to be used as authority. Therefore, the decision in this matter rests on the question of whether the memorandum in question is a rule. If it is a rule, it must be formally adopted. If not, it cannot be challenged under Section 120.56, F.S., by Petitioners.

   
   

   Rules is defined in Section 120.52(14), F.S., where it states:

   "(14) 'Rule' means each agency statement of general applicability that implements, interprets, or prescribes law or policy or

   describes the organization, procedure, or practice requirements of an agency and includes the amendment or repeal of a rule. The term does not include:

   1. Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to

      the public,

   2. Legal memoranda or opinions issued to an agency by the attorney general or agency legal opinions prior to their use in connection with the agency action, or

   3. The preparation or modification of:

1. Agency budgets,

2. Contractual provisions reached as a result of collective bargaining, or

3. Agricultural marketing orders under chapter 573 or chapter 601."

   
   

4. The memorandum in question was issued by the department in an attempt to correct the confusion and inconsistency experienced by the different Field Compliance Officers. The Respondents have stipulated that the memorandum does substantially affect the interests of the Petitioners and from this stipulation it must be concluded that the private interests of the Petitioners are affected. It cannot be concluded that the memorandum here is internal management memorandum which is exempted from the definition of a rule since it has been agreed that the private interests of Petitioners are affected by it.

   
   

5. The memorandum is a statement the agency uses to enforce the Crew Leader Registration Law. As beneficiaries of that law the Petitioners are a group the law seeks to protect from being victimized by unscrupulous farm labor contractors. When the Department of Commerce issued the memorandum in question it directed its compliance officers to require registration in certain situations and not in others. The memo used in this fashion becomes a direct extension of the statute, as much so as if it were enacted by the legislature. On the authority of this memo individuals may or may not be required to register under the law in question. As a direct consequence of those decisions the Petitioners may go without protections otherwise guaranteed in the law.

   
   

6. The question here is not whether the memorandum conflicts with Section 450.28, F.S., but how much of an impact it has on the Petitioners and others similarly situated. Even if the memo is totally consistent with Chapter 450, F.S., it certainly elaborates and expands upon the general language in the statute. Ultimately the test of whether a statement is a rule as defined in Chapter 120, F.S., is not the wording of it, but its impact upon an individual, group or other agency. Therefore, since it is clear that the memorandum is a statement of general applicability that interprets and implements law, the memorandum is a rule defined in Chapter 120, F.S., and not having been adopted pursuant to that chapter it is declared to be an invalid rule.

DONE and ORDERED this 9th day of March, 1977, in Tallahassee, Florida.

KENNETH G. OERTEL

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Robert A. Williams, Esquire Cathrine B. Tackney, Esquire Florida Rural Legal Services, Inc. Post Office Box 1109

Immokalee, Florida 33934

Dan F. Turnbull, Esquire Department of Commerce Room 401, Collins Building Tallahassee, Florida 32304

Carroll Webb, Executive Director Administrative Procedure Committee Room 120, Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State

403 East Gaines Street Tallahassee, Florida 32304

Docket for Case No: 76-002114RX

Orders for Case No: 76-002114RX