STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
EDWARD T. HUCK, )
)
Petitioner, )
)
vs. ) CASE NO. 90-4828RP
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent. )
) SANDRA BUTLER TIPPIN, et al., )
)
Petitioner, )
)
vs. ) CASE NO. 90-5156RP
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent )
)
FINAL ORDER
A hearing was held in this case in Tallahassee, Florida on October 15, 23, and 29, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
APPEARANCES
For the Petitioners: Mark H. Zilberberg, Esquire
313 Williams Street, Suite 2 Tallahassee, Florida 32303
For the Respondent: E. Gary Early, Esquire
Department of Environmental Regulation
2600 Blair Stone Rd. Tallahassee, Florida 32399-2400
STATEMENT OF THE ISSUES
The issue for consideration in this hearing was whether the Department of Environmental Regulation's Amended Rule 17-105, F.A.C, Smoking Policy, was properly implemented and is a proper exercise of delegated legislative authority.
PRELIMINARY STATEMENT
By Petition For Administrative Determination of the Invalidity of Proposed Rule Amendments, dated August 2, 1990, Petitioner, Edward T. Huck, challenges the Department of Environmental Regulation's proposed amendment to Rule 17-105, F.A.C., its "Smoking Rule", on several grounds, paramount among which is the assertion that it is an invalid exercise of delegated legislative authority.
By Order of Assignment dated August 8, 1990, the matter was assigned by the Director to the undersigned who, on August 9, 1990, set the matter for hearing on August 27, 1990,
In the interim, however, by Petition dated July 26, 1990, Petitioner Tippin and others, also challenged the agency's proposed rule amendment for similar reasons. The Director assigned this case to the undersigned on August 22, 1990 and the two Petitions were consolidated for hearing. Prior to the receipt of the second Petition, however, Petitioner, Huck had requested a continuance in the date for the hearing of his Petition, and by Order Granting Continuance dated August 16, 1990, the hearing was rescheduled to commence on October 15, 1990. On that date, the hearing on the two Petitions was begun.
At the hearing, Petitioner Huck testified in his own behalf, and, with the others, presented the testimony of John S. Shearer, Assistant Secretary, Department of Environmental Regulation, (Department), Dale Twachtmann, Secretary; Carolyn M. Barnes, a clerk typist/specialist with the Department; Oliver S. Flint, an engineer with the Department; Clair H. Fancy, Chief of the Department's Bureau of Air Regulation; Michael V. Peyton, Director of the Department's Division of Administrative and Technical Services; and Julia Cobb Costas, an attorney formerly with the Department. Petitioners also introduced Petitioners' Exhibits 1 through 10. The 1990 version of Chapter 386, Florida Statutes, was considered herein.
Respondent introduced the testimony of Dennis E. Williams, a cardiologist and expert in the effects of primary and secondary smoke on human health; Clyde Deao, an economic analyst with the Department; Jerome V. Tyre, Jr., a utilities supervisor with the Department of General Services; Francine Ferrell Lyles, facilities services manager for the Department; Mark W. Seymour, purchasing director for the Department; Martin T. Green, Jr., a program specialist for the Department of Health and Rehabilitative Services; Mallie E. McCarron, an environmental specialist II with the Department; Diane C. Hunt, Cory Yacavone, and William B. Kahn, all employees of the Department; and Mr. Peyton.
Respondent also introduced Respondent's Exhibits B through X and Z through GG. Respondent's Exhibits A and Y, though marked and offered, were not admitted.
A transcript of the proceedings was submitted. Both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Final Order.
FINDINGS OF FACT
At all times pertinent to the issues herein, the Petitioners were employees of the Department. Petitioner Huck was employed in the Tallahassee headquarters and the other Petitioners were employed elsewhere.
GENESIS
The Florida Legislature, in 1985, enacted Chapter 386, Part 11, Florida Statutes, The Florida Clean Indoor Air Act, (Act), under the authority of which, in February, 1986, the Department promulgated its own "Smoking Policy" incorporated in Rule 17-105, F.A.C.. This rule prohibited smoking in all Department facilities except in those areas specifically exempted as designated smoking areas. These included private office areas and employee lounge areas as well as the first floor cafeteria.
Dale Twachtmann was appointed Secretary of the Department in January, 1987. At the very beginning of his incumbency, he became aware of the ongoing controversy over smoking within the Department and concluded that a management decision to put the matter to rest was called for. He determined, from the information made available to him, that even before his arrival, the headquarters building in Tallahassee had serious air handling problems due partially, at least, to activities that had previously been carried on in parts of the building. A previously operating print shop and laboratory were moved shortly after his arrival. He could not determine how much of the "bad" air was attributable to each program.
THE RULEMAKING PROCESS
Mr. Twachtmann also determined that smoking within the building was considered, by a significant number of employees, to be a part of the air problem second only in seriousness to the laboratory. When the lab was moved, those proponents of clean air struck upon smoking as their bete noire. No studies of air quality were done during Mr. Twachtmann's tenure, however, nor had anything been done to curb smoking except for the promulgation of the original Rule 17-105.
The controversy over smoking within the building continued, however, culminating in the drafting and circulation, in December, 1988, by an employee, Mr. Billy Kahn, of a petition to totally ban smoking in the facility. This petition was signed by approximately 275 of the 500 to 600 employees in the Tallahassee office. Though the Secretary did not recognize all the names thereon, he did recognize enough to satisfy him of its validity, notwithstanding a few irregularities on it, and he was influenced by it to do something. It reinforced his own observations of the smoking situation gathered while going about the building. For example, though he never noticed smoke in the halls, nor did he ever see anyone smoking in open areas, he would find some heavy and unpleasant odors in some of the break rooms and the lunchroom where smoking was allowed.
Mr. Twachtmann thereupon decided, as Department Secretary, to take action which would resolve the smoking issue once and for all. He decided to initiate the rulemaking process with a view toward, if and after all legal requirements were met, banning smoking completely in all Department facilities and vehicles. Part of the process, which called for workshops to advise all employees of the proposed action and to solicit employee input, included consideration of alternative solutions to banning smoking. The process also included consideration by the Secretary of the substantial information available on both sides of the issue which was provided to him by his staff and by experts whose opinions on the matter were solicited. Much of this information was presented by advocates of both positions at a series of senior staff meetings held in early 1990 at which the senior staff voted unanimously to proceed with
rulemaking to amend the smoking policy in Rule 17-105 to ban smoking. At this point, no studies had been made of air quality within the Tallahassee headquarters building.
Nonetheless, after the vote was taken to amend the rule, in May, 1990, Mr. Shearer prepared and dispatched a memorandum to Department staff, referring to the "decision" by the Secretary to ban smoking from the headquarters building. This memo solicited personnel participation in the rulemaking process and instructed anyone who had any input to coordinate it through their supervisors.
The task of drafting the amended rule was given to Mr. Peyton, the chief administrator of the Department, who, in turn, delegated the task initially to his counsel, Ms. Costas. Mr. Peyton was not told, when assigned his task, that he could not change the substance of the existing rule. Because Mr. Peyton was not satisfied with the draft of the proposed amendment prepared by Ms. Costas, he reassigned the task to one of his deputies, a nonlawyer, Ms. Drew. He instructions to her were to cut it down and make it simple, but to reflect the Department policy to ban all smoking in Department facilities and vehicles. The latter was an afterthought subsequent to Mr. Peyton's receiving comments regarding the smell in the Department's vehicles.
After the draft of the rule was prepared, workshops to address the proposed rule were scheduled, noticed in the Florida Administrative Weekly, (F.A.W.), and conducted in various locations throughout the state. The published notice indicated discussion would include the need, if any, for the rule, and the proposed terms thereof.
Instructions governing the conduct of the workshops and the method of handling employee comments were disseminated by Ms. Costas to the Deputy Assistant Secretary in each district. Those employees who held opinions on the need for or terms of the proposed rule were to be instructed to forward their comments in writing to the Department headquarters in Tallahassee. Hearings were held throughout the state in late June and early July, 1990. The comments received by Mr. Peyton, who conducted the Tallahassee workshop, and those submitted from elsewhere within the Department, were consolidated and summarized by Ms. Costas and thereafter forwarded, through Peyton, to the Secretary. Comments in writing were received from members in the Central, Northeast and Northwest Districts and orally from the Southeast District. There is no record of any comments having been received from any other district. All comments received were forwarded to, discussed with, and considered by the Secretary personally.
Consistent with appropriate rulemaking procedure, a hearing on the rule was scheduled to be held by the Secretary regardless of whether there was a request therefor or not. In the interim, on June 20, 1990, copies of the hearing notice, the rule, the economic impact statement and the Statement of Facts and Circumstances Justifying the Proposed Rule were sent to the required agencies for coordination. Thereafter, based on the input received from employees and other pertinent sources, the rule was changed and notice thereof appropriately published in the F.L.W.. The secretarial hearing was held as noticed and did not result in any input sufficient to cause delay in the process. On July 27, 1990, the rule was certified to the Secretary of State by Secretary Twachtmann.
MATTERS RELATING TO THE NEED FOR THE RULE
There has been and continues to be discourse in the medical and lay communities on the harmful effect of secondhand tobacco smoke. While few disagree that the direct inhalation of tobacco smoke by smokers has harmful effects on the health of those individuals, controversy is still rampant as to what effect, if any, the forced inhalation by nonsmokers of tobacco smoke generated by smokers in the area, has on the health of these passive exposees.
It is well recognized that chemicals shown to be carcinogens are found in tobacco, (cigarette) smoke. Responsible medical studies have also shown a higher incidence of lung cancer in persons exposed to second hand cigarette smoke than in those who have routinely been free of it. A secondary effect is a higher incidence of pulmonary disease and a detriment to lung development.
"Secondary smoke" is that smoke generated by burning tobacco between puffs and that smoke exhaled by smokers. There is substantial evidence that the inhalation of secondary smoke for 8 or 9 hours per day over time increases the risk of cancer in an individual so exposed since tobacco smoke contains known carcinogens. Dr. Dennis Williams, a cardiologist accepted by the parties as an expert in the effect of tobacco on human health, is not aware of any showing of increased danger there in the workplace as a result of secondary smoke. However, studies have conclusively shown such an increased danger in the home and to children.
Increased levels of nicotine and cotenine have also been observed in the blood and urine of nonsmokers in a workplace where smoking is permitted. Cotenine is a known carcinogen and nicotine, while not, itself, a carcinogen, is an addictive substance. The tar from cigarette smoke contains thousands of cancer causing chemicals. Admittedly, some of these can be found in substances other than cigarette smoke. However, lung cancer is now the leading cause of death among men and women in the United States, and 90% of all lung cancer deaths are due to the use of cigarettes and other tobacco products. Considering all the above, Dr. Williams feels there is no reasonable alternative to concluding that secondary smoke creates a health hazard to the nonsmoker who is frequently exposed to it. It is so found.
It is also found that limiting smoking to a closed room does not protect the nonsmoking worker. Smoke quickly diffuses, through the ventilating system, throughout the total air of the facility. Cigarette smoking is a major cause of indoor air pollution and constitutes a major exposure of the worker to a carcinogen. Nonsmokers in the workplace have been found to have metabolized nicotine and cotenine in their urine which could have come only from secondary smoke to which they have been exposed there.
The 1986 Report of the Surgeon General of the United States on the Health Consequences of Involuntary Smoking supports the conclusions drawn by Dr. Williams both as to the adverse health effects of secondary smoke and the ineffectuality of artificial separation, within the same air space, of smokers and nonsmokers. This report, along with other supporting information, was considered by Mr. Peyton during the rulemaking process and reported to Secretary Twachtmann prior to final decision.
SPECIFICS
The poor quality of air in the Department's headquarters building in Tallahassee has been known for some time. Studies of the building's air quality in both 1987 and 1988, while not dealing with the issue of cigarette smoking, both recognized the problem and recommended solutions. The building's ventilation is accomplished through two air handlers on each floor which re- circulate heated or chilled air, depending on the season. Interior air lost through doors and exhaust fans is replenished by outside air brought in by the air handlers. Approximately 88% of the air in the building at any time, however, is re-circulated. In very cold weather, when the introduction of cold outside air must be restricted, that percentage is increased. Any tobacco smoke in the air is, therefore, re-circulated again and again on the floor where it originates. Consequently, regardless of physical separation, nonsmokers sharing a ventilation system with smokers will be exposed to their smoke.
In order to reduce that risk, internal air would have to be expelled and more outside air brought in. This cannot be done without a major modification to the building structure and a replacement of the existing air handling system. This is neither reasonable nor economically feasible. In order to reduce the air pollution problems within the building, the Department relocated two of the major polluting functions; the laboratory and the print shop. All these factors were known to and considered by the Department during the rulemaking process.
Previous efforts were also made to accommodate the desires of both smoking and nonsmoking employees. Until the adoption of the total ban, smoking was allowed in private offices, in the break room on the fourth floor, and in the employee deli on the first floor. Since smoke concentration in the deli was heavy, many nonsmoking employees found it either unpleasant or impossible to eat there. Consequently, business and the resultant income therefrom was lost. On the other hand, since the ban on smoking, many smokers who formerly patronized the facility during their breaks no longer use it, with a resultant loss of business and income.
The use of private offices for smoking was equally unsuccessful since not only were nonsmokers put off from entering either for business or other purposes, but smoke and the smell of smoke escaped through the ventilation system and open doors, and the odor of smoke, so unpleasant to many, would linger in an office long after the occupant thereof was gone.
Taken together, the information available on the subject indicated that the only way to safely allow smoking in the building was to limit it to an area that was independently ventilated. This would require an independent access to the outside for the exhaust of old air and the re-supply of fresh air. Only one area in the building ever had an independent air exhaust, and that system, formerly in the laboratory, has been removed and is now being used in the Jacksonville district office. The former lab space is now an open office. As was found previously, physical modification of a currently operational building to accommodate the desires of a portion of the employee force is neither required nor justified.
The issue regarding vehicles is somewhat different. The Department operates a fleet of state-owned vehicles, access to which is available to all Department employees. These vehicles are not separated into groups reserved for smokers or nonsmokers.
Department employees are sometimes required to travel in Departmental vehicles. Some trips are of several hours duration, and while so occupied, the employees are on Department business. The vehicles also may be used, under proper authorization, to carry individuals other than state employees. Nonsmoking passengers, whether employees or not, may be in the position of riding with another passenger who smokes or in a vehicle which has previously been occupied by a smoker. There have been complaints regarding both situations, with the latter relating primarily to the objectionable smell left in the vehicle by the former smoking occupant.
Dr. Williams opined that occupying a vehicle with another, smoking, individual poses the same risk to the nonsmoker's health as does occupying a room with such an individual. However, the residual odor of smoke left in a vehicle by a previous smoking passenger, while offensive, normally is not harmful. It is so found. All these factors were considered by the Department during the rulemaking process.
The Department has taken the position that when Departmental vehicles are occupied by its employees, the vehicles are the employees' assigned workplace and individuals are, therefore, afforded the protection of the Act.
OPERATION AND EFFECT
Penalties for violation of the rule are incorporated therein and provide for a fine of $100.00 for the first violation, and of $500.00 for each subsequent violation in addition to discipline in accordance with the provisions of Chapter 17-130, F.A.C., the Department's disciplinary rule. Those provisions for fine are taken directly from the terms of the Act, Section 386.208, Florida Statutes.
The disciplinary rule previously mentioned, (Section 17- 130.300(7)(b)2, F.A.C.), makes it a violation to smoke in a restricted area, an area in which smoking is prohibited. Penalties are outlined in the rule for the various violations which might occur, and each employee is provided with a copy of that rule upon employment with the Department.
The Department claims it incorporated the fine provisions of the Act into its amended rule to "reference those disciplinary actions what would be involved" as a result of a violation of the rule and that they are informative only and do not create any additional disciplinary rules. This may be so, but any provision for discipline of an employee for violation of the terms of an agency rule should be incorporated in the agency's employee discipline rule to which reference is made in the instant rule.
OTHER PROBLEMS
Petitioners have objected to the use of the term, "right" in the amended rule which refers to the objection of nonsmokers to the effects of having to work in closed areas with smokers. Petitioners urge that the Department has sought to create and utilize a new "constitutional" right and that such action is unlawful and unsupportable.
A thorough review of all the evidence presented in relation to the promulgation of this rule and its predecessor 1986 rule clearly demonstrates that the use of the term, "right" was no more than an in-artful word choice and in no way dispositive of the smoking issue. To be sure, the Legislature has, by implementation of the Act, encumbered the freedom of the smoker to engage in his
passion in a public place, absent an affirmative designation of a smoking area. The use of the term, "public", does not necessarily mean only open to the general public. A building is public if it is owned or operated by a governmental agency.
Here, the Department's use of the word, "right", in its rule is no more than a recognition of the differences of opinion which separate the ranks of the smoker and nonsmoker and a recognition of the proposition that the interests of one are as important as are those of the other.
The Petitioners have also argued that in its implementation of the amended rule, the Department has denied them due process, specifically referring to the May 8, 1990 memorandum, and the participation in the rulemaking process of Ms. Drew, who was a signatory to the anti-smoking Petition solicited and presented by Mr. Kahn. In his memo, Assistant Secretary Shearer indicated that, "...a decision ha[d] been made .... " to ban smoking, and Petitioners claim that that "decision" having been made, the entire subsequent rulemaking process was a sham.
Again we see what appears to be, in light of all that followed, no more than in-artful phraseology to announce the recognition of a Departmental problem and the initiation of a process designed to correct that problem. Admittedly, the use of that phrase raises a spectre of improper influence and a closed mind on the part of the Department hierarchy. However, the testimony of the principals, Secretary Twachtmann and Assistant Secretary Shearer, as to their intent from the beginning of the process, and the uncontroverted testimony regarding the openness of the succeeding activity toward the ultimate determination of a need for and the drafting of the proposed rule, clearly dispels any shade of impropriety.
The process was conducted in the open. Employee comment was solicited and several forums were employed in which these comments, pro or con, could be made known to the Secretary. Inquiry was solicited and none who now object to the rule either asked questions or made recorded comment at the time. Petitioners have not shown by any definitive evidence of record, that any interested party who wished to object was prevented from doing so or dissuaded from negative comment by fear of reprisal. To the contrary, the evidence clearly demonstrates that all required notices were published, and that management went far beyond that which was required to insure the opportunity for fair comment and to, as best as possible, guarantee the maximum available input to the Secretary before the final decision was made.
As for the participation of Ms. Drew in the process, the evidence shows that she is Mr. Peyton's deputy. When Mr. Peyton received Ms. Costas' draft of the proposed amended rule and was dissatisfied with it, he requested Ms. Drew, with Ms. Costas, rework it. His guidelines were to cut excessive wordage and make it simple. The operating thesis was also simple and left little room for interpretation. There is little risk that Ms. Drew, or anyone else, could have, in this instance, gone beyond the basic instructional premise upon which she was to work because of her own feelings about the subject matter. The lines were simply drawn on this issue. There were those who favored allowing smoking and those who favored abolishing it. To claim that one who supported abolition could not, thereafter, work on a rule to bring about that end is unrealistic and inappropriate.
Petitioners also claim that the Department failed to provide a statement of data and methodology with its Economic Impact Statement, (EIS). Review of the EIS filed with the Joint Administrative Procedures Committee, (Respondent's Exhibit K), reveals that it contains the required statement which appears to demonstrate that the agency's methodology for information collection was appropriate. There was no evidence presented by Petitioners to demonstrate to the contrary.
Petitioners further claim that the Department was not the appropriate agency to take the action regarding smoking, assuming, arguendo, such action was appropriate. The Act, which formerly provided that the government entity "responsible for the management and maintenance" of a government building should "implement" the provisions of the Act, was amended in 1988 to require that agency only to report observed violations of the Act to the Department of Health and Rehabilitative Services.
In this case, the management and maintenance of Departmental buildings is accomplished through contracts entered through leases on the buildings let through the Department of General Services, (DGS). Petitioners claim that as a result, the rule, if appropriate, should have been promulgated and implemented by DGS. Petitioners overlook the fact that the Department is ultimately responsible for the headquarters building and the activities therein, and is the major employer therein.
Petitioners raise the issue that the Department should have, under the Act, designated a smoking area since it claims to be the agency charged with enforcing the Act. This claim presupposes that the Act requires a smoking area be designated in all buildings where smoking is otherwise regulated. Such is not the case. Section 386.202 specifically noted that the Act shall not be interpreted to require the designation of smoking areas. The Department has construed the Act to indicate that as the employer, it implements smoking policy in its facilities. This interpretation conforms to that of other state agencies, including the Department of Education, the Department of Transportation, and the Division of Administrative Hearings, all of which have implemented smoking policies in their facilities. The Department's interpretation appears to be correct, even though different agencies than those listed have provided for separate smoking areas.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
In their respective Petitions, the Petitioners claim that enumerated sections of the Department's proposed amendments to its "Smoking Rule", Chapter 17-105, F.A.C., are invalid exercises of delegated legislative authority or are otherwise invalid. Specifically, Petitioner Huck claims that the proposed amendments go beyond the powers, functions and duties delegated by the legislature in that:
The agency has materially failed to follow applicable rulemaking procedures set forth in Section 120.54, Florida Statutes;
The agency has exceeded its grant of rulemaking authority, citation to which
is required by Section 120.54(7), Florida Statutes;
The proposed amendments enlarge, modify, or contravene the specific provisions of the law implemented, citation to which is required by Section 120.54(7), Florida Statutes;
The proposed amendments are vague, fail to establish adequate standards for agency decision, or vest unbridled discretion in the agency, and
The proposed amendments are arbitrary and capricious.
The other Petitioners, Ms. Tippin and others, also claim the proposed amendments are an invalid exercise of delegated legislative authority in that:
Rule 17-105.005(1), F.A.C. states its intent is to implement the Act;
Section 386.207, Florida Statutes, provides for the Department of Health and Rehabilitative Services to implement the Act;
Section 386.209, Florida Statutes, preempts regulation of smoking to the state, not lesser political subdivisions;
The Department has not provided the statement of data and method used in the making of its estimates as required by Section 120.54(2) (b)4, Florida Statutes,
and
No studies have been conducted on the effects, if any, of second hand smoke in vehicles.
The burden of proof in this case rests upon the Petitioners to show, by a preponderance of the evidence, that the challenged rule is an invalid exercise of delegated legislative authority, Agrico Chemical Co. v. State, 365 So.2d 759 (Fla. 1st DCA 1978, cert. denied, 376 So.2d 74 (Fla. 1979).
Much of the fundamental case law regarding rule challenges is found in the Agrico case cited above which set the standard for evaluation. In that case, the court required the challenger to show that the requirements of the rule are not appropriate to the ends specified in the legislative act; that the rule requirements are not reasonably related to the purpose of the enabling legislation; or that the rule, or its requirements, are arbitrary and capricious.
The term "invalid exercise of delegated legislative authority" is defined in Section 120.52(8), Florida Statutes, as ... action which goes beyond the powers, functions and duties delegated by the legislature", and that section then identifies those bases for holding a rule to be invalid, including those listed by Petitioners herein. Both existing and proposed rules are to be tested against those criteria set forth in Agrico as well as the statute.
The burden of showing that an agency action is an invalid exercise of delegated legislative authority is a difficult one. The courts recognize that agencies are given wide discretion in the exercise of their lawful rulemaking authority, and once an agency has construed a statute, that construction is given great weight and is not to be overturned unless clearly erroneous, Austin
v. Department of Health and Rehabilitative Services, 495 So.2d 777, 779 (Fla. 1st DCA 1986).
On the other hand, however, agencies cannot, by administrative rule, enlarge, modify, or contravene the provisions of a statute, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Salvation Limited, Inc., 452 So.2d 65 (Fla. 1st DCA 1984).
Mr. Huck claims that the Department denied him, and the other Petitioners, the right to constitutional due process because Mr. Shearer's memorandum referring to the Secretary's "decision" to prohibit smoking, before the rulemaking process had even begun, created a "chilling effect" upon the Department employees in the subsequent formal workshops, hearings, and comment periods.
There was no evidence presented by any Petitioner to support this theory. The mere allegation of undue influence, without any indication that the complained of words had an effect at all is insufficient in light of the weight of the Petitioner's burden of proof to demonstrate that such an effect occurred. This is not a case where wishing will make it so, nor does the thought constitute the act.
By the same token, the employment of Ms. Drew, admittedly a foe of smoking in the workplace, in the drafting of the proposed amendment does not, absent more, constitute an impropriety requiring a setting aside of the finished product. What Ms. Drew performed was, at most, a ministerial function. She took an existing rule and a proposed amendment drafted by someone else, and put it in more simple terms. She added little if anything to the substance of the action. A full notice, workshop, hearing and comment sequence was provided for and conducted subsequent to Ms. Drew's minimal involvement. To suggest that her activity rendered the process unfair or invalid, in light of the openness with which it was conducted here, is ingenuous and bordering on specious, regardless of the decision in State Board of Funeral Directors and Embalmers v. Cooksey, 148 Fla. 271, 4 So.2d 253 (1941).
Mr. Huck also seeks to make much of the use of the word, "right" in connection with a freedom from secondary smoke. Notwithstanding Petitioner's argument, it is clear that the Department was not seeking to usurp the powers of the legislature to create a favored class of employee. As was found previously, the use of the term, "right", in the proposed amendment was clearly no more than an in-artful choice of words without legal import. What was obviously intended was a recognition of the often unpleasant and possibly harmful effects of secondary smoke and the determination of a significant portion of the work force to be free of them. This cannot reasonably be a basis for holding the subsequent open rulemaking process invalid.
Petitioner claims, in his post-hearing proposals, that in drafting the terms of the Act, it was "clearly the intent" of the legislature specifically not to include the effects of "secondary" smoke in the statute since the term, "secondary" was not used. Clearly, however, a reading of the Act in its totality, considering the references to tobacco and the prohibition against smoking in public places, as well as the requirements for physical barriers to
the spread of tobacco smoke from area to area, indicates the intent of the Legislature was to protect nonsmokers from tobacco smoke generated by others. To conclude otherwise would be ludicrous.
While Dr. Williams indicated a lack of studies involving the workplace, he concluded that considering the studies done concerning the home and the pathogenic effects of the contents of tobacco smoke, no other logical conclusion could be drawn but that secondary tobacco smoke is as hazardous to the nonsmoker in the workplace as it is elsewhere. Clearly, at the time the decision was made to proceed with the rulemaking process to ban smoking in the Departmental workplaces, that decision, at least as to facilities, was based on substantial, bordering on conclusive, evidence, and could in no way be considered as either arbitrary or capricious.
Even as to vehicles, some validity exists for banning smoking in vehicles also occupied by nonsmokers. However, the residual smell of smoke, as offensive as it may be to some, without more, is not shown to be dangerous and the banning of smoking from all Department vehicles at all times, while within the discretionary powers of the Secretary, should be reconsidered.
Turning to the issues of the penalties called for in the rule, the Act, at Section 386.208, provides for the assessment of fines against "Any person who violates s. 386.204 ..That section specifically provides that, "No person may smoke in a public place ... except in designated smoking areas." The Department's provision for fines against individuals in its rule does not exceed the delegated legislative authority found in Section 386.205, the legislative authority for the Department's rulemaking activity in this case. However, if discipline is appropriate, such discipline should be incorporated in the Department's rule on disciplinary activity, Rule 17-130.003, F.A.C..
Petitioner Huck claims, further, that any rule here, even if appropriate, should have been implemented by DGS, rather than the Department, contending that the legislature intended that the entity responsible for management and maintenance of the "building" should implement the rule. A close examination of the statute indicates that "smoking areas may be designated by the person in charge of a public place", Section 386.205(1). "In a workplace where there are smokers and nonsmokers, employers shall develop, implement and post a policy regarding designation or smoking and nonsmoking areas", Section 386.205(3). Clearly, the Department is the employer of a vast majority of the individuals who work in Departmental buildings, and the Secretary of the Department is the person in charge of all Department buildings, which are public places. The actual signatory to a lease is not necessarily the person in charge of a public place.
Considering the foregoing findings of Fact and Conclusions of law, it is, therefore:
ORDERED THAT
The Petitioners for Administrative Determination of Edward T. Huck, and of Sandra Butler Tippin, et al., are hereby dismissed.
DONE and ORDERED in Tallahassee, Florida this 27th day of December, 1990.
ARNOLD H. POLLOCK
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1990.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-4828RP & 90- 6156R
The following constituted my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
FOR THE PETITIONERS:
Petitioners have submitted Proposed Findings of Fact, the format of which is difficulty to conform to in this Appendix. Therefore, each individual indented paragraph in the "Findings of Fact" section of the "Petitioner's Proposed Order", regardless of how classified by Petitioners will be treated as an individual Proposed Finding of Fact and numbered as such herein.
1.-3. Accepted and, as pertinent, incorporated herein.
Accepted as to what Huck and Jones testified to, but rejected as conclusive of the feelings of the majority of other Departmental employees.
Not a Finding of Fact but a restatement of the testimony.
& 7. Accepted and incorporated herein.
Accepted.
Accepted.
Accepted.
Accepted, but the attachments referred to were not considered as evidence since they were not admitted at the hearing.
Rejected as a Conclusion of law and not a Finding of Fact/
& 14. Not Findings of Fact but restatements of the evidence.
First sentence rejected as not an accurate statement of the text of the current statute. Second citation accepted.
Rejected.
Not a Finding of Fact but a restatement of testimony.
Discussion of authority to implement rejected. Comment on Lack of uniformity accepted.
Not a Finding of Fact but argument.
FOR THE RESPONDENT:
Paragraphs 1 - 10 of the Respondent's Recommended Order were not Findings of Fact but dealt with preliminary matters. Paragraphs 11-135 are represented as Proposed Findings of Fact.
11.-13. Accepted and incorporated herein. 14.-17. Accepted and incorporated herein.
18. Accepted and incorporated herein.
19.-22. Accepted and incorporated herein. 23.-29. Accepted and incorporated herein. 30.-37. Accepted and incorporated herein. 38.-40. Accepted and incorporated herein.
Accepted.
Accepted and incorporated herein.
43.-46. Accepted and incorporated herein. 47.-49. Accepted and incorporated herein. 50.-53. Accepted and incorporated herein. 54.-57. Accepted and incorporated herein. 58.-62. Accepted and incorporated herein. 63.&64. Accepted.
65.&66. Accepted.
67.-70. Accepted.
71.-78. Accepted.
79.-85. Accepted and incorporated herein. 86.&87. Accepted and incorporated herein. 88.&89. Accepted but not given great weight.
Accepted.
Not a Finding of Fact.
& 93. Accepted as the Department's position. 94.& 95. Accepted.
96. Accepted as the Department's assertion. 97.&98. Accepted.
Accepted.
Not a Finding of Fact but a statement of agency position
Not a Finding of Fact but a comment on the state of the evidence.
Not a Finding of Fact but an argument of agency position 103.&104. Accepted and incorporated herein.
105.-125. Accepted and incorporated herein.
126. Accepted.
127.-129. Accepted.
130.-135. Accepted.
COPIES FURNISHED:
Mark H. Zilberberg, Esquire
313 Williams Street, Suite 2 Tallahassee, Florida 32303
E. Gary Early, Esquire Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Dale H. Twachtmann Secretary
Department of Environmental Regulation
2600 Blair Stone Rd. Tallahassee, Florida 3299-2400
Daniel H. Thompson General Counsel
Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Liz Cloud, Chief
Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250
Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
NOTICE OF RIGHT TO JUDICIAL REVIEW
PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
EDWARD T. HUCK, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING
APPELLANT, AND DISPOSITION THEREOF IF FILED.
v. Case No. 91-258
DOAH Case NO. 90-4828RP
DEPARTMENT OF ENVIRONMENTAL REGULATION,
APPELLEE
/ Opinion filed November 25, 1991.
An Appeal from an Order of the Division of Administrative Hearings. Arnold Pollock, Hearing Officer.
Mark H. Zilberberg, Tallahassee, for Appellant.
E. Gary Early, State of Florida Department of Environmental Regulation, Tallahassee, for Appellee.
PER CURIAM.
AFFIRMED.
ERVIN, MINER and ALLEN, JJ., CONCUR.
M A N D A T E
From
DISTRICT COURT OF APPEAL OF FLORIDA
FIRST DISTRICT
To the Honorable Arnold Pollock Hearing Officer. WHEREAS, in that certain cause filed in this Court styled:
EDWARD T. HUCK
vs
STATE OF FLORIDA, DEPARTMENT OF Case No. 91-258 ENVIRONMENTAL REGULATION
SANDRA BUTLER TIPPIN, et al.
Your Case No. 90-4828RP & 90-5156RP
vs.
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION
The attached opinion was rendered on November 25, 1991.
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 James E. Joanos
Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the
Capitol, on this 26th day of December, 1991
Clerk, District Court of Appeal of Florida,
First District
| Issue Date | Proceedings |
|---|---|
| Dec. 27, 1990 | Final Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 25, 1991 | Opinion | |
| Dec. 27, 1990 | DOAH Final Order | State agency head has authority to ban smoking in leased office building and in state owned autos since state offices are public places under his control. |
