STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FARR MILLER, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2025RX

) DEPARTMENT OF GENERAL SERVICES, )

)

Respondent. )

)

FINAL ORDER

This matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on 5, 1979.

APPEARANCES

For Petitioner: Petitioner appeared in propria persona For Respondent: Sylvan Strickland, Esquire

Room 457, Larson Building

Tallahassee, Florida 32301

1. By letter dated October 3, 1979, petitioner sought "to have Chapter 13D-2 and/or all informal rules of [respondent] declared invalid." In this

   letter, petitioner alleged that [o]n October 2, 1979, [she] was issued a parking summons, No. 951718, by Officer Hodge, City of Tallahassee Police Department, for parking in reserve space B-68 without an affixed reserved tag attached to the lower left side of the vehicle license plate" and "contend[ed] that this summons, which require[d] that [she] remit $2.00 to the City of Tallahassee or be liable for the issuance of a warrant for [her] arrest, is in excess of [respondent's] authority and . . . an implementation of policy which has not been promulgated pursuant to Chapter 120." Petitioner contends that, although "[n]either statutory authority nor [respondent's] rules and regulations provide for a police monitoring or enforcement effort except for the expressed purpose of removing or causing to be removed a wrongfully parked vehicle," respondent has "prescribed a policy of contracting with the City of Tallahassee to enforce rules," and collect fines.

   
   

2. Respondent filed a motion to dismiss, and among other things cited Section 272.16, Florida Statutes (1977), in its memorandum in support. Subsection three provides:

   
   

   The parking areas so assigned, or so limited in use, shall be clearly marked, and any violation of the same shall constitute a violation of this chapter and may be punished as if it constituted a violation of a municipal ordinance of

   the City of Tallahassee. Section 272.16 (3), Florida Statutes (1977).

   
   

   Respondent also filed an answer to the petition admitting that it had "entered into an agreement with the City of Tallahassee under which [r]espondent delegated to the City of Tallahassee the authority to perform the acts alleged" by petitioner. In its answer, too, however, respondent asserted that Section 272.16(3), Florida Statutes (1977), authorized Officer Hodge's issuance of a summons to petitioner.

   
   

3. Section 272.16(3), Florida Statutes (1977), authorizes an infraction of the kind petitioner alleges to "be punished as if it constituted a violation of a municipal ordinance of the City of Tallahassee." Petitioner contends that this statute is unconstitutionally vague for failure to specify which ordinance shall supply the penalty. This contention should be addressed to the judicial, not the executive, branch of government, however. The Division of Administrative Hearings is bound to uphold a statute until and unless a court declares it unconstitutional.

   
   

4. As it is written, Section 272.16(3), Florida Statutes (1977), authorizes the issuance of the summons alleged in petitioner's letter. Since this statutory authorization exists, independent of the policies and contract attacked by petitioner, petitioner is not a "person substantially affected by" the alleged policies. The invalidation as rules of the policies Petitioner alleges respondent is implementing would not alter Officer Hodge's authority to issue the traffic summons petitioner alleges she received. She cannot, therefore, be said to be substantially affected by respondent's alleged policies, within the meaning of Section 120.56(1), Florida Statutes (1977).

It is, accordingly, ORDERED:

The petition is dismissed.

DONE AND ENTERED this 7th day of November, 1979, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Sylvan Strickland, Esquire Room 457, Larson Building Tallahassee, Florida 32301

Farr Miller

Post Office Box 644 Tallahassee, Florida 32302

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301

Ms. Liz Cloud

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32301

Docket for Case No: 79-002025RX

Orders for Case No: 79-002025RX