STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ASSOCIATION OF PROFESSIONAL ) LAND SURVEYORS, et al., )

)

Petitioner, )

)

vs. ) CASE NO. 84-0381RP

) DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF PROFESSIONAL ENGINEERS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to a Joint Stipulation between the parties, dated February 23, 1984, this cause came on before the Hearing Officer to determine the validity of Proposed Rule 21H-18.11(4) Florida Administrative Code.

APPEARANCES

For Petitioner: Mallory E. Horne, Esquire

Post Office Box 1140 Tallahassee, Florida 32302

For Respondent: John J. Rimes, III, Esquire

Assistant Attorney General Department of Legal Affairs Room LL04, The Capitol Tallahassee, Florida 32301

By Petition filed with the Division of Administrative Hearings on January 30, 1984, Petitioners, Florida Association of Professional Land Surveyors, Buel Harper, and Robert A. (Buddy) Bannerman ("Petitioners"), challenged the validity of Proposed Rule 21H-18.11(4), Florida Administrative Code, which has been proposed for adoption by the Department of Professional Regulation, Board of Professional Engineers ("Respondent"). By Joint Stipulation, dated February 23, 1984, which will be hereinafter set forth in its entirety in the Findings of Fact section of this order, the parties waived their right to a formal evidentiary hearing, and agreed to submit memoranda for consideration by the Hearing Officer. This Joint Stipulation has been marked by the Hearing Officer as Hearing Officer's Exhibit No. 1. By virtue of the Joint Stipulation, there are no disputed issues of fact involved in this proceeding.

FINDINGS OF FACT

1. By Joint Stipulation, dated February 23, 1984, Petitioners and Respondent agreed as follows:

   
   

   1. That those facts in the Petition To Determine The Invalidity Of A Proposed

      Rule which support the Petitioners standing to bring a Chapter 120.54(A), Florida Statute [sic] rule challenge are correct and are sufficient to establish said standing.

   2. The notice of the proposed rule and the rule itself first published in

      Volume 10, Number 2, Florida Adminis- trative Weekly, are hereby stipulated into evidence as forming the basis

      of the matter in controversy in this cause.

   3. The issues set forth in the Petition To Determine The Invalidity Of A

      Proposed Rule as to whether the Respondent has the authority to promulgate the rule in question form the sole basis of controversy.

      Respondent and Petitioners have agreed to submit simultaneous memo- randa of law in support of their respective positions. The memoranda shall be filed on or before March 19, 1984.

      The Hearing Officer shall then have thirty (30) days in which to render his final order in this cause.

      
      

2. Respondent has proposed for adoption Rule 21H-18.11(4) Florida Administrative Code, which provides as follows:

   
   

   The term "Engineering Survey" as used in Section 471.005(4)(a), F.S., is defined as surveys made to obtain

   data for planning, design, and execution of engineering projects or developments; and may be necessary for the planning, progress, and completion of any engineering services. These surveys include, but are not limited to, con- struction layout, topographic surveys, hydrographic surveys, quantity surveys, and special purpose surveys to the extent that all the aforementioned surveys relate to engineering services.

   
   

3. Respondent has asserted as the specific authority for, and law implemented by, the proposed rule only Section 471.005(4)(a), Florida Statutes.

   
   

4. In summarizing the purpose and effect of the proposed rule in its notice published in the Florida Administrative weekly, Respondent pointed out that:

   
   

   The proposed rule essentially codifies previous rulings of the joint Board of Professional Engineers and Land Sur- veyors as it existed prior to 1979 and

   further amplifies generally accepted types of "surveying" which are nationally accepted as being capable of being per

   formed by qualified professional engineers.

   
   

5. Further, including in its notice that the proposed rule would have minimal economic impact on Florida engineering practice, Respondent concluded that:

   
   

   . . . This estimate is based upon the fact that the definition of "engineering" in Ch. 471, F.S. has not been changed

   for several decades and various rulings of the Board of Professional Engineers and Land Surveyors (prior to 1979) as well as nationally accepted demarcations between those areas which are solely the practice of professional engineering and those of land surveyoring [sic] which have been followed in the State of Florida permit the overlap of functions between those individuals licensed under Ch. 471 and Ch. 472, F.S., to the extent set forth in the proposed rule.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.54(4), Florida Statutes.

   
   

7. Section 120.54(14), Florida Statutes, provides in part, that ". . . [n]o agency has inherent rulemaking authority. . . ." In 4245 Corporation v. Division of Beverage, 371 So.2d 1032, 1033 (Fla. 1st DCA 1978), the court quoted with approval the following general rule:

   
   

   The rulemaking authority which

   the legislature may validly delegate to administrative agencies must be and is limited by the statute conferring the power. Administrative agencies, when empowered to do so, may make and enforce regulations to carry out powers defi- nitely conferred on them, but they are not permitted to do more. The legis- lature cannot clothe them with more,

   and neither may they assume to do more. While an administrative agency may regulate, it may not legislate unless so authorized by the Constitution.

   Its power to adopt rules and regula- tions is limited to the yardstick laid down by the legislature . . . .

   (Original emphasis.)

8. Here, Respondent has advanced as both the authority for, and law implemented by, the proposed rule, Section 471.005(4)(a), Florida Statutes, which provides, in pertinent part, that:

   
   

   `Engineering' includes the term `Profes- sional engineering' and means any service or creative work, the adequate performance of which requires engineering education, training, and experience, and the appli- cation of special knowledge of the mathematical, physical, and engineering sciences to such services or creative

   work as . . . engineering surveys. (Emphasis added.)

   
   

9. Section 471.005(4)(a), Florida Statutes, contains no specific legislative grant of rulemaking authority. Indeed, the only rulemaking authority conferred upon Respondent by the legislature in Chapter 471 is contained in Sections 471.011, authorizing the establishment of fees; 471.013, authorizing review and approval of schools or colleges offering courses of study in engineering; 471.019, authorizing Respondent to prescribe by rule continuing education requirements for reactivating a license; 471.025, authorizing Respondent to prescribe by rule a form of seal to be used by registrants; and, 471.033(2), authorizing Respondent to specify by rule the acts or omissions which constitute a violation of Section 471.033(1). Section 471.033(1), Florida Statutes, relates exclusively to grounds for disciplinary action which may be taken by Respondent against licensees. Respondent's proposed rule does not purport to specify acts or omissions of licensees that would constitute grounds for disciplinary action. Instead, the rule, on its face, purports to refine and interpret the legislatively enacted provisions of Section 471.005(4)(a), Florida Statutes, and to "codify previous rulings of the joint Board of Professional Engineers and Land Surveyors as it existed prior to 1979." Respondent's action might be sustainable if, as in Florida Beverage Corporation v. Wynne, 306 So.2d

200 (Fla. 1st DCA 1975) its enabling legislation had entitled it to "make such rules and regulations as may be necessary to carry out the provisions of this Act." In such a situation, Florida law is well settled that the validity of regulations promulgated under such a broad grant of authority will be sustained so long as they are reasonably related to the purpose of the enabling legislation. Here, however, unlike Wynne, there is no such broad rulemaking authority, and further no specific rulemaking authority to support the proposed rule. See, Department of Health and Rehabilitative Services v. Florida Psychiatric Society, Inc., 382 So.2d 1280, 1284 (Fla. 1st DCA 1980). This conclusion is buttressed by the well-established rule of statutory construction that "[w]hen what is expressed in a statute is creative. . . , it is exclusive, and the power exists only to the extent plainly granted . . . ." 2A Sutherland, Statutory Construction, Section 47.23 (4th ed. 1973) Where, as here, the legislature has delegated rulemaking authority to an agency in several narrowly defined areas, a more generalized rulemaking authority should not be deemed conferred by implication. See, Department of Administration v. Albanese, Case Number AR-108 (Fla. 1st DCA, February 13, 1984).

Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law, it is Specifically concluded that Respondent's Proposed Rule 21H-18.11(4), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.

DONE AND ENTERED this 22nd day of March, 1984, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1984.

COPIES FURNISHED:

Mallory E. Borne, Esquire Liz Cloud, Chief

Post Office Box 1140 Bureau of Administrative Code Tallahassee, Florida 32302 Department of State

Suite 1802, The Capitol John J. Rimes, III, Esquire Tallahassee, Florida 32301 Assistant Attorney General

Department of Legal Affairs Room LL04, The Capitol Tallahassee, Florida 32301

Carroll Webb, Executive Director Joint Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Fred M. Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Allen R. Smith, Jr., Executive Director Board of Engineers

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-000381RX

Orders for Case No: 84-000381RX