STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HUMAN DEVELOPMENT CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2101RX

) FLORIDA COMMISSION ON HUMAN ) RELATIONS, )

)

Respondent. )

)

FINAL ORDER

The Petitioner, Human Development Center, has filed a "Petition for the Determination of the Invalidity of an Existing Rule" with the Division of Administrative Hearings in accordance with Section 120.56, Florida Statutes. Petitioner is seeking an order declaring that Florida Commission on Human Relations Rules 9D-8.06, 8.22(2), 9.03(4), and 9.03(7), Florida Administrative Code, constitute invalid exercises of delegated legislative authority. The Director of the Division of Administrative Hearings entered an Order assigning the matter to the undersigned Hearing Officer on August 31, 1981. A final hearing was originally scheduled to be conducted on September 29, 1981. Upon agreement of both parties, the hearing was rescheduled for October 21, 1981.

There are no disputed issues of fact. Hearing Officer's Composite Exhibit

1 was received into evidence, and there was no additional evidentiary presentation. The parties submitted briefs relating to the legal issues in support of and in opposition to a Motion for Summary Judgment that was filed by the Petitioner in advance of the hearing. The motion was denied at the hearing; however, the parties agreed that their earlier briefs should be considered in support of their positions. Additionally, the parties presented oral arguments.

FINDINGS OF FACT

1. Petitioner is a Florida corporation with its business located in Tampa, Florida. Respondent is a stated agency charged with responsibility for investigating and resolving unlawful employment practices. Its duties and powers are enumerated in Chapter 23, Florida Statutes, the Human Rights Act of 1977.

2. Respondent has adopted Rules 9D-8.06, 8.22(2), 9.03(4), and 9.03(7), Florida Administrative Code. These rules authorize Respondent to issue subpoenas, serve them by registered mail, and enforce them through judicial proceedings. The rules specifically authorize issuance, service, and enforcement of subpoenas in connection with investigations of unfair employment practices. They provide that inferences may be drawn from the failure of a person to provide requested information. . .

1. Linda Parties filed a complaint against Petitioner with the Respondent, alleging sex discrimination by Petitioner. Based upon the complaint, Respondent initiated an investigation. It formally requested information from Petitioner on July 13, 1979. On April 7, 1981, Respondent issued a subpoena in connection with the investigation and served it by registered mail in accordance with its rules. Petitioner objected to the subpoena and has not provided the requested information. Respondent has sought to enforce the subpoena through a "Petition for Enforcement" filed in Circuit Court in Leon County, Florida. Circuit Judge Donald O. Hartwell has entered an Order which provides:

   
   

   This cause came to be heard on the Motion To Dismiss Petition For Enforcement of Investigatory Subpoena filed by the Human Development Center, Respondent. Both parties were represented by Counsel who presented argument to the court. The court being otherwise fully advised enters this its order; therefor it is,

   
   

   Ordered that the service of an investigatory subpoena served by certified mail pursuant to Rule 9D-8.22, Florida Administrative Code is valid service. Such service is not required to be served in accordance with Florida Statutes 48.031 or Rule 1.410(c), Florida Rules of Civil Procedure. It is further,

   
   

   Ordered that the Motion To Dismiss Petition For Enforcement of Investigatory Subpoena is denied. It is further,

   
   

   Ordered that further proceedings to enforce the investigatory subpoena in this cause are

   stayed pending the ruling of Hearing Officer G. Steven Pfeiffer in Case No. 81-2101RX now set for hearing on October 21, 1981.

   
   

2. Respondent has made no determination of reasonable cause to believe that Petitioner has engaged in any unlawful employment practice.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.56, Florida Statutes. Respondent contends that Petitioner lacks standing to challenge the rules. Respondent argues first that since the subpoena has already been issued, the act complained of has transpired, and there is therefore no continuing harm to the Petitioner, citing Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (1 DCA Fla. 1978), cert. den. 359 So.2d 1215 (Fla. 1978); second that since enforcement of the subpoena has been stayed by the Circuit Court, Petitioner is not subject to any adverse inference being drawn from its failure to provide information; and, third that since the matter is pending in Circuit Court, all of the Petitioner's rights can be protected in that forum. These contentions are without merit. The Petitioner in Jerry, a prisoner, was held to lack standing to challenge procedural rules governing discipline of prisoners because he had already been disciplined and served the penalty prescribed under the rules that he sought to challenge. In the instant matter,

   a subpoena is outstanding against Petitioner in connection with a complaint of an unlawful employment practice. Inferences that can be drawn against Petitioner under Respondent's rules for failure to supply information, and the existence of a complaint subject the Petitioner to the continuing adversity that the Court found lacking in Jerry.

   
   

4. The existence of the Circuit Court proceeding does not operate to foreclose Petitioner's right to challenge Respondent's rules administratively. Indeed, the Circuit Court recognized this when it stayed further action in the enforcement proceedings pending resolution of the rule challenge.

   
   

5. Petitioner bases its challenge on three contentions: first that Respondent is not statutorily authorized to adopt rules allowing issuance of subpoenas in connection with agency investigations, second that Respondent is not statutorily authorized to provide for service of subpoenas by registered mail, and third that the rules are arbitrary .and capricious and thus beyond Respondent's statutory authority. As to the first contention, Respondent's only statutory authority to provide for issuance of subpoenas in connection with its investigations is set out at Section 23.166, Florida Statutes. The section provides in pertinent part:

   
   

   Within the limitations provided by law, the commission shall have the following powers:

   (5) To receive, initiate, investigate, seek to conciliate, hold hearings on, and act upon complaints alleging any discriminatory practice, as defined by this part.

   (7) To administer oaths, subpoena witnesses, and compel production of evidence pertaining to any hearing convened pursuant to subsection (5). The authority granted by this subsection may be delegated by the commission, for investigations or hearings, to a commissioner, a panel of commissioners established under s. 23.163(5), or the executive director. In the case of a refusal to obey a subpoena issued to any person, the commission may make

   application to any circuit court of this state, which shall have jurisdiction to order the witness to appear before the commission and to produce evidence, if so ordered, or to give testimony concerning the matter in question.

   Failure to obey the order may be punished by the court as contempt. . .

   
   

   The section authorizes Respondent to investigate complaints and to hold hearings on complaints. Respondent is authorized to subpoena witnesses and to compel production of evidence, however, only in connection with hearings. Respondent contends that, while not expressly authorizing it, the statute does not forbid issuance of subpoenas in connection with investigations, and that the authority would be helpful and important to Respondent in carrying out the salient functions of the Human Rights Act. while the authority might be helpful, it is not to be found in the statute. It would not be a fair reading of the statutory language to presume authority to issue subpoenas for investigations when the statute expressly provides for issuance of subpoenas for hearings. In connection with other agencies, the Legislature has expressly provided authority to issue subpoenas in connection with agency investigations, see, e.g., Section

   455.223, Florida Statutes. It must therefore be presumed that the Legislature would have expressly granted the authority to Respondent if it had intended for Respondent to have the authority.

   
   

6. Petitioner's second and third contentions are without merit. The Respondent's authority to serve subpoenas by certified mail has been upheld in connection with this proceeding by Judge Hartwell in his Order on the Motion To Dismiss Petition For Enforcement of Investigatory Subpoena. That ruling has strong precedential impact, and, furthermore, constitutes the law of the case for the purposes of this proceeding. Petitioner has failed to sustain its contention that the Respondent's rules are arbitrary and capricious. See: Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (1 DCA Fla. 1979), cert. den. 376 So.2d 74 (Fla. 1979).

   
   

7. Respondent lacks authority to adopt rules providing for issuance of subpoenas in connection with its investigations. Accordingly, Respondent's Rules 9D-8.06 8.22(2), 9.03(4), and 9.03(7), Florida Administrative Code, constitute invalid exercises of delegated legislative authority insofar as they authorize issuance, service, and enforcement of subpoenas in connection with agency investigations.

FINAL ORDER

Based upon the foregoing findings of fact and conclusions of law, it is, hereby,

ORDERED:

Florida Commission on Human Relations Rules 9D-8.06, 9D-8.22(2), 90- 9.03(4), and 9D-9.03(7), Florida Administrative, Code, constitute invalid exercises of delegated legislative authority insofar as they authorize issuance, service, and enforcement of subpoenas in connection with agency investigations.

DONE AND ORDERED this 5 day of November, 1981, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5 day of November, 1981.

COPIES FURNISHED:

George L. Waas, Esquire Slepin, Slepin, Lambert & Waas 1114 East Park Avenue Tallahassee, Florida 32301

J. Worth Owen, Esquire Assistant General Counsel

Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301

Carroll Webb, Esquire Executive Director Administrative Procedures

Committee

Room 120, Holland Building

Ms. Liz Cloud, Chief Administrative Code Bureau Department of State

1802 The Capitol

Tallahassee, Florida 32301

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

FLORIDA COMMISSION ON NOT FINAL UNITL TIME EXPIRES HUMAN RELATIONS, TO FILE REHEARING PETITION AND

DISPOSITION THEREOF IF FILED.

Appellant,

vs. CASE NO. AI-85

CASE NO. 81-2101RX

HUMAN DEVELOPMENT CENTER,

Appellee.

/ Opinion filed May 10, 1982.

An appeal from an order of Hearing Officer Steven Pfeiffer.

J. Worth Gwen, Assistant General Counsel, Florida Commission on Human Relations, Tallahassee, for appellant.

George L. Waas, of Slepin, Slepin, Lambert & Waas, Tallahassee, for appellee.

John-Edward Alley and Robert D. Hall, Jr., of Alley & Alley, Tampa, for amicus curiae, Publix Super Markets, Inc.

WIGGINTON, J.

This appeal is from the final order of the Administrative Hearing Officer holding that appellant's Rules 9D-8.06, 9D-8.22(2), 9D-9.03(4) and 9D-9.03(7), Florida Administrative Code, constitute invalid exercises of delegated legislative authority insofar as they authorize issuance, service and enforcement of subpoenas in connection with agency investigations.

Appellant, Florida Commission on Human Relations, is the adminstrative agency whose function it is to promote and encourage fair treatment and equal opportunity for all persons regardless of race, color, religion, sex, national origin, age, handicap, or marital status, pursuant to the Human Rights Act of 1977, Ch. 23, Part IX, Florida Statutes (1977). In carrying out that function, it is charged with the responsibility of investigating and adjudicating claims of employment discrimination. The Human Development Center is a corporate body existing under the laws of Florida with its business located in Tampa. Publix Super Markets, Inc. was granted participation as amicus curiae due to a similar case pending in the Second Judicial Circuit, Florida Commission on Human Relations v. Publix Super Markets, Inc., Leon County Civil Action No. 81-780, wherein after considering an identical issue the circuit judge sustained the Commission's statutory authority pursuant to Section 23.166(5) and (7), Florida Statutes (1981), to issue investigatory subpoenas and to delegate such authority to its executive director. Publix sought certiorari review from this Court which was denied after consideration of the petition on its merits. Publix Supermarkets, Inc. v. Florida Commission on Human Relations, Case No. AF-326, Fla. 1st DCA (Order entered Sept. 10, 1981).

The issue to be determined is whether the Commission has the requisite legislative authority to support the promulgation of the several Florida Administrative Code rules as relates to the issuance of subpoenas for investigations being carried out by the Commission.

This controversy came about following the filing of a complaint against the Center by an employee alleging sex discrimination. Based upon the complaint and pursuant to Section 23.166(5), Florida Statutes (1979), and Rule 9D-9.03, the Commission's executive director commenced an investigation into the allegations by formally requesting information from the Center on July 13, 1979. The Center failed to furnish the information bought and on April 7, 1981, the executive director of the Commission issued a subpoena and served it by registered mail in accordance with its rules. The Center acknowledged receipt of the subpoena by certified mail, but has refused to comply. The Center sought protection from the subpoena by filing a petition for review of non-final administrative action with this Court, which was denied. The Commission, in the meantime, sought enforcement of its subpoena in the Leon County Circuit Court, Case No. 81-1248. The lower court ruled that the Commission's service of the investigatory subpoena by certified mail was valid service. That order was appealed to this Court and dismissed. Human Development Center v. Commission on Human Relations, Case No. AH-207 (Fla. 1st DCA Jan. 27, 1982).

Before the trial court made any final ruling, the Center filed with the Division of Administrative Hearings a petition for the determination of the invalidity of an existing rule in which the above-cited rules were challenged. The hearing officer in his final order concluded that the challenged rules constituted an invalid exercise of delegated legislative authority insofar as they authorized issuance, service, and enforcement of investigative subpoenas.

The Center and Publix do not challenge the authority of the Commission in the issuance of subpoenas for evidence pertaining to any convened hearing. They only contests the issuance of subpoenas to compel the production of evidence required by the Commission in an ongoing investigation after a complaint has been filed but prior to a hearing being convened.

The Commission derives its authority to promulgate rules from Section 23.166, Florida Statutes (1979). The law implemented by Rules 9D-8.06, 9D- 8.22(2), 9D-9.03(4), and 9.03(7) is found in Sections 23.166 and 23.167, Florida Statutes (1979). The four subparagraphs contended to be the basis for issuance of subpoenas in connection with the Commission's investigations are provided in pertinent part as follows:

Section 23.166 Powers of the Commission.-- Within the limitations provided by law, the Commission shall have the following powers:

(5) To receive, initiate, investigate, seek to conciliate, hold hearings on, and act upon complaints alleging any discriminatory practice, as defined by this part.

(7) To administer oaths, subpoena witnesses, and compel production of evidence pertaining to any hearing convened pursuant to subsection (5). The authority granted by this subsection may be delegated by the commission, for investigations or hearings to a commissioner, a panel of commissioners established under s. 23.163(5), or the executive director. In the case of a refusal to obey a subpoena issued to any person, the commission may make

application to any circuit court of this state, which shall have jurisdiction to order the witness to appear before the commission and to produce evidence, if so ordered, or to give testimony concerning the matter in question.

Failure to obey the order may be punished by the court as contempt.

(13) To adopt, promulgate, amend, and rescind rules to effectuate the purposes and policies of this part and govern the proceedings of the commission, in accordance with chapter 120.

We disagree with the hearing officer's overly narrow interpretation of the powers delegated to the Commission in Section 23.166. Such an interpretation does not fairly express or permit the meaning and intent of Sections 23.166(5) and 23.166(7) to carry out the express function of the commission.

The Commission clearly has the power "to. .. investigate. . .complaints alleging any discriminatory practice. . ." and "to hold hearings to determine the facts. . ." 23.166(5) and (6). In Section 23.166(7) it is provided that "the authority granted by this subsection"-- the authority to administer oaths, subpoena witnesses and compel production of evidence-- "may be delegated by the commission, for investigations or hearings to a commissioner, a panel of commissioners, or the executive director." The plain reading of the rules and statutory subsections lead inexorably to the conclusion that the commission has the authority to issue, serve and enforce subpoenas in connection with agency investigations. Although these sections of Chapter 23 could have been more

artfully drafted, the express language is sufficiently clear and should not negate the obvious legislative intent. The power to investigate granted the Commission by virtue of Subsection 23.166(5), Florida Statutes, would be rendered nugatory if Subsection 23.166(7) were read to apply only to convened hearings. Further, such an interpretation would completely thwart the orderly process of investigation and discovery to determine whether there was a sufficient basis to convene a formal hearing.

Publix aligns itself with the Center's position but fairly expresses the view of the business community that the potential hardship and cost to Florida employers could be overwhelming if they are required to respond to broad based subpoenas and information demands sent out by mail over a prolonged period but prior to any determination that there is reasonable cause to believe that the complaint has merit. The Commission must accept that caveat and exercise its powers responsibly, without abuse and with restraint, in carrying out its mission of promoting and encouraging fair treatment and equal opportunity for all persons in our state. Additionally, Publix and the other members of the general employment community are provided a statutory safeguard from ultimate governmental harassment. Subsection 23.166(7), authorizing enforcement of the subpoena upon refusal of the witness to answer or appear, provides recourse to a circuit court for determination of whether that witness should be made to answer questions or produce relevant information. The section is thereby calculated to render adequate judicial supervision and protection.

This case and that one involving Publix Supermarkets, Inc. have traveled a long road thus far not reaching resolution on the merits. Along the way, the issue sub judice was before the Commission which concluded that it had the power to issue investigative subpoenas. Its conclusion is persuasive and entitled to great weight by this Court. See e.g., State ex rel. Biscayne Kennel Club v.

Board of Business Regulation, 276 So.2d 823 (Fla. 1973). Specifically, the statutory implementing proposals having made their way through the rulemaking process, in which those challenging the rule fully participated or had an opportunity to participate, strengthens the case for judicial deference. In State Department of Health and Rehabilitative Services v. Framat Realty, Inc.,

407 So.2d 238 (Fla. 1st DCA 1981), this Court reversed the hearing officer's order that the rule exceeded its statutory authority. We held the interpretative rule valid, noting that the Department had gone through the rulemaking process in developing its policy and stating that:

When as here an agency has responded to rulemaking incentives and has allowed affected parties to help shape the rules they know will regulate them in the future, the judiciary must not, and we shall not, overly restrict the range of an agency's interpretative powers. Permissible interpretations of a statute must and will be sustained, though other interpretations are possible and may even seem preferable according to some views. At 242.

Absent the power to issue investigatory subpoenas, the Commission's investigation of a complaint of discrimination would invariably be protracted whenever requested information was not voluntarily submitted. Where lawful rulemaking authority is clearly conferred or fairly implied, and is consistent with the general statutory duties of the agency, a wide discretion is accorded it in the exercise of such authority. 1 F1a. Jur.2d, Administrative Law, 48

(1977). Any other interpretation of Section 23.166 and its subsections (5) and

(7) would be incompatible with the spirit and purpose behind the Commission's authority to investigate and adjudicate employment discrimination. Accordingly, we find the Florida Commission on Human Relations Rules 90-8.06, 9D-8.22(2), 90- 9.04(4), and 90-9.03(7), Florida Administrative Code, to be a valid exercise of delegated legislative authority properly authorizing issuance, service, and enforcement of subpoenas in connection with agency investigations. The hearing officer's final order is reversed.

JOANOS AND THOMPSON, JJ., CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable, G. Steven Pfeiffer

Hearing Officer

WHEREAS, in that certain cause filed in this Court styled: HUMAN DEVELOPMENT CENTER

vs.

FLORIDA COMMISSION ON HUMAN Case No. AI-85 RELATIONS Your Case No. 81-2101RX

The attached opinion was rendered on May 10, 1982

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable Robert P. Smith, Jr.

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 6th day of July, 1982

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 81-002101RX

Orders for Case No: 81-002101RX