STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETE SPEAR, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4816RU

) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on September 24, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Jerry E. Traynham, Esquire

Post Office Box 4289 Tallahassee, Florida 32315-4289

For Respondent: Judson M. Chapman, Esquire

Neil Kirkman Building, A-432 Tallahassee, Florida 32399-0504

STATEMENT OF THE ISSUES

The issues are whether the agency statement identified as Section 5.02.08 of the Florida Highway Patrol Auxiliary Policy Manual falls within the definition of a rule, and if so, whether rulemaking is feasible and practicable.

PRELIMINARY STATEMENT

This matter began on August 7, 1992, when petitioner, Pete Spear, filed a petition for an administrative determination of the invalidity of a rule wherein he contended that an interim policy memorandum used by respondent, Department of Highway Safety and Motor Vehicles, was an unpromulgated rule and thus was invalid. After being reviewed for legal sufficiency, the petition was assigned to the undersigned hearing officer on August 11, 1992.

By notice of hearing dated August 11, 1992, the final hearing was scheduled on August 25, 1992, in Tallahassee, Florida. At petitioner's request, the matter was rescheduled to September 25, 1992, at the same location.

At final hearing, petitioner testified on his own behalf and presented the testimony of Colonel Charles C. Hall, chief of special operations for the

Florida Highway Patrol. The parties also stipulated into evidence joint exhibits 1-8 and filed a prehearing stipulation containing certain undisputed facts.

On September 8, 1992, respondent filed a motion to dismiss the petition on the grounds petitioner lacked standing to bring this action and, in a prior rule challenge, a similar policy was held to be an internal management memorandum and thus exempt from rulemaking requirements under Subsection 120.52(16)(a), Florida Statutes. The motion was denied at the outset of the hearing.

The transcript of hearing was filed on October 6, 1992. Proposed findings of fact and conclusions of law were filed by petitioner and respondent on October 15 and 16, 1992, respectively. A ruling on each proposed finding has been made in the Appendix attached to this Final Order.

FINDINGS OF FACT

Based upon all of the evidence, including the stipulation of facts, the following findings of fact are determined:

1. Petitioner, Berwyn R. Spear, also known as Pete Spear, operates a business under the name of "Pete's Chevron" located at 2151 North Monroe Street, Tallahassee, Florida. Among other things, the business provides wrecker services for towing automobiles.

   
   

2. Besides operating his service station, for the last twelve years petitioner has been a member of the Florida Highway Patrol Auxiliary (Auxiliary), a statutorily created volunteer service organization whose members ride with and assist members of the Division of the Florida Highway Patrol (FHP) in the performance of their regular duties. He has expended almost $1,000 for equipment and uniforms. The Auxiliary functions under the direct supervision of the FHP, which in turn is a governmental unit under the jurisdiction of respondent, Department of Highway Safety and Motor Vehicles. Auxiliary members are not required to be sworn police officers but are certified by the Criminal Justice Standards and Training Commission. Members are required to have monthly activity amounting to a minimum of twenty-four hours per calendar quarter, but they receive no pay or benefits other than those prescribed by Part IV of Chapter 110, Florida Statutes, which governs volunteer organizations. Finally, Auxiliary members serve at the pleasure of the FHP director and are subject to removal at will. They have no statutory right of review or appeal for disciplinary action but there is an internal disciplinary review process administered by an FHP review board in Tallahassee.

   
   

3. Pursuant to state law, and subject to further requirements in Chapter 15B-9, Florida Administrative Code, the FHP maintains a wrecker rotation list, by which the FHP facilitates wrecker services to persons needing assistance on the roadways. For the last twelve years and until February 1992, petitioner's business was on the rotation list and he derived several hundred dollars per month in such towing income. The rotation list works in the following manner. Whenever a trooper encounters circumstances requiring the towing of a motorist's vehicle, the trooper notifies the dispatcher of the need for a wrecker from the rotation list, unless the motorist expresses a desire for a specific wrecker service. The dispatcher then telephones the next appropriate wrecker service from the rotation list and makes a request for services. It is noted that FHP troopers are prohibited by internal policy 5.19.00 found in the FHP Policy

   Manual from being employed by any wrecker company (as opposed to just those on the rotation list) since the FHP deems this to be an unacceptable conflict of interest.

   
   

4. The FHP has developed an Auxiliary Policy Manual (Manual) containing various written standards and guidelines governing the conduct of Auxiliary members. Like other policy manuals developed by the FHP, the Manual has not been formally adopted as a rule. As is relevant to this controversy, Section

   5.02.08 of the Manual relates to the subject of conflict of interest, and prior to January 1992, simply stated in part that "any conflict between private employment and the FHP or any abuse of a member's FHPA position that benefits his employment will result in immediate dismissal from the FHPA." However, the FHP did not construe this provision as barring petitioner from being a member of the Auxiliary and at the same time having his wrecker business on the FHP rotation list.

   
   

5. On January 29, 1992, the director of the FHP issued a memorandum to all troop commanders regarding a change in Section 5.02.08 of the Auxiliary Policy Manual. The newly added language read as follows:

   
   

   Due to the sensitive relationship between the Florida Highway Patrol and wrecker companies, employment involving wrecker companies that do business with the Florida Highway Patrol is considered to be a conflict of interest.

   
   

   The director's memorandum provided the following instructions to all troop commanders regarding the new language in Section 5.02.08:

   
   

   The attached policy revisions will bring the Florida Highway Patrol Auxiliary Manual in line with the Florida Highway Patrol Manual regarding employment by wrecker companies.

   If (sic) is requested that you survey all Auxiliary members in your troop to determine if any are in violation of this policy.

   Please take the necessary action to bring members found in violation of this policy into compliance. In the event the member cannot comply with this policy, it will be necessary that the member resign from the Auxiliary.

   
   

6. Pursuant to this new policy, an FHP troop commander contacted petitioner in February 1991 and advised him that he must either remove his wrecker business from the FHP wrecker rotation list or resign from the Auxiliary. Although strongly disagreeing with the policy, petitioner advised the FHP by letter dated February 18, 1992, that he wished to remove his wrecker business from the rotation list. He did so in order to remain a member of the Auxiliary. After his informal appeal challenging the policy was denied, on August 7, 1992, petitioner filed his petition seeking to have the new language in Section 5.02.08 declared invalid as an unpromulgated rule.

   
   

7. According to the FHP's chief of special operations, there is no discretion on the part of the troop commander or other enforcing officer except to require strict adherence to the policy. In other words, the policy in question is not subject in application to the discretion of the enforcing

   officer. Therefore, the policy has uniform application to all Auxiliary members and requires those members who own wrecker businesses on the FHP rotation list to choose between remaining a member of the Auxiliary or removing their business from the FHP rotation list. Since he is directly impacted by the policy, petitioner has standing to bring this action.

   
   

8. In August 1992, respondent adopted substantial amendments to Chapter 15B-9, Florida Administrative Code, which relate to "Wrecker Qualifications and Allocation System." However, the rules do not address petitioner's concerns nor codify the so-called conflict of interest policy applicable to Auxiliary members. At hearing respondent also expressed the view, without further explanation, that if it had to adopt the Auxiliary policies as formal rules, it would be a difficult and "cumbersome" task, it might well "have the effect of eliminating the auxiliary service", it would "serve to inhibit the agency from doing its statutory job", and it "would seriously affect the ability of the agency to effectively operate an auxiliary volunteer service." These assertions were not contradicted. Even so, rulemaking is found to be feasible and practicable since there is no evidence to support a finding that at least one of the exceptions in Subsections 120.535(1)(a) and (b), Florida Statutes, is applicable.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Sections 120.535 and 120.57, Florida Statutes (1991).

   
   

10. Initially, respondent's contention that petitioner lacks standing to bring this challenge must be addressed. Respondent contends that because petitioner is an unpaid member of a voluntary organization, he has suffered no real or immediate injury, particularly since he has no property right or vested interest in the Auxiliary. However, the right of access to an administrative proceeding is not embedded on the notion that a member of a volunteer organization cannot be substantially affected by agency action, and the fact that a volunteer organization is in issue here in no way diminishes the importance of the matter to petitioner or the benefits that he derives from being a member. Since the agency statement requires petitioner to make an involuntary choice between retaining membership in the Auxiliary or removing his business from the FHP rotation list, his substantial interests are affected.

    
    

11. The petition initiating this cause was filed on August 7, 1992. Accordingly, and although barely, if at all, addressed by either party, Section 120.535, Florida Statutes, which became effective on March 1, 1992, has application to this proceeding. Subsection (1) thereof provides as follows:

    
    

    Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule under s. 120.52(16) shall be adopted by the rulemaking procedure provided by s.

    120.54 as soon as feasible and practical. Rulemaking shall be presumed feasible and practicable to the extent provided by this subsection unless one of the factors provided by this subsection is applicable.

    1. Rulemaking shall be presumed feasible unless the agency proves that:

       1. The agency has not had sufficient time to

          acquire the knowledge and experience reasonably necessary to address a statement by rulemaking; or

       2. Related matters are not sufficiently resolved to enable the agency to address a statement by rulemaking; or

       3. The agency is currently using the rulemaking procedure expeditiously and in good faith to adopt rules which address the statement.

    2. Rulemaking shall be presumed practicable to the extent necessary to provide fair notice to affected persons of relevant agency procedures and applicable principles, criteria, or standards for agency decisions unless the agency proves that:

    1. Detail or precision in the establishment of principles, criteria, or standards for agency decisions is not reasonable under the circumstances; or

    2. The particular questions addressed are of such a narrow scope that more specific resolution of the matter is impractical outside of an adjudication to determine the substantial interests of a party based on individual circumstances.

    
    

12. Under the foregoing statutory scheme, a party asserting that an agency statement is a rule has the burden of proving that matter by a preponderance of the evidence. Assuming this evidentiary showing is satisfied, the burden then shifts to the agency to overcome the statutory presumption that rulemaking is feasible by showing that it is not feasible and practicable to address the challenged statement by rulemaking. As to this latter burden, the statute provides that if one of the factors enumerated in subsections 120.535(1)(a) and

    (b) is found to be applicable, rulemaking need not be immediately undertaken, and the agency can continue to rely upon the statement subject to the satisfaction of the requirements in Subsection 120.57(1)(b)15., Florida Statutes. Thus, the issues in this case are whether the agency statement being challenged meets the definition of a rule, and if so, whether rulemaking is feasible and practicable.

    
    

13. In resolving the first issue, reference to Subsection 120.52(16), Florida Statutes (1991), is necessary. That subsection defines a rule as follows:

    
    

    (16) 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 any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule.

    The term also includes the amendment or repeal of a rule. The term does not include:

    (a) Internal management memoranda which do not affect either the private interests of any

    person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum.

    * * *

    
    

    It should also be noted that in construing the above definition of a rule in the context of a challenge under section 120.535:

    
    

    The term "rule" should be interpreted broadly. The word "statement" used in the definition of "rule" is intended to encompass any form of communication by an agency. The words "general applicability" used in the definition of "rule" are intended to be given their plain meaning. The restrictive interpretation given "general applicability" by the case decisions should be reversed. (citations omitted) A broad interpretation of the term "rule" gives effect to the Legislature's intent to maximize the applicability of the rulemaking standard to the implementation of delegated authority by administrative agencies.

    
    

    Staff of Fla. H. R. Comm. on Govtl. Ops., HB 1879 (1991) Staff Analysis 4 (final May 22, 1991)(on file with comm.)

    
    

    Therefore, in a proceeding brought under section 120.535, deference should be accorded to the legislature's intent that rulemaking is no longer discretionary on the part of an agency and that subsection 120.52(16) should be broadly construed.

    
    

14. Further instructive advice for determining whether an agency statement constitutes a rule is found in the case of Balsam v. Department of Health and Rehabilitative Services, 452 So.2d 976, 977-78 (Fla. 1st DCA 1984), where the court held that:

    
    

    Any agency statement is a rule if it purports in and of itself to create certain rights and adversely affect others, or serves by its own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law.

    
    

15. The evidence shows that the policy in question has uniform application to all members of the Auxiliary, requires compliance on the part of all Auxiliary members, and is virtually self-executing and otherwise has the direct and consistent effect of law. It also adversely affects petitioner's private interests (substantial rights) in that he must make a choice between remaining a member of the Auxiliary or having his wrecker business removed from the FHP rotation list. Because the policy has all of the attributes of a rule, the challenged policy (the newly added language to Section 5.02.08 of the Manual) is declared to be an agency statement within the definition of a rule, but not adopted as a rule.

    
    

16. In reaching this conclusion, the undersigned has first considered the agency's contention that under the rationale of Department of Highway Safety and

    Motor Vehicles v. Florida Police Benevolent Association, 400 So.2d 1302 (Fla. 1st DCA 1981), the policy should be considered an internal management memorandum and thus exempt from rulemaking under Subsection 120.52(16)(a), Florida Statutes. In that case, two FHP general orders relating to physical fitness standards and guidelines for assessing discipline for deficiencies were held to be internal management memoranda within the meaning of subsection 120.52(16)(a) and thus were not illicit rules as contended by the appellee. In reversing a final order in which the hearing officer had determined the general orders to be rules under the rationale of State Dept. of Administration v. Stevens, 344 So.2d

    290 (Fla. 1st DCA 1977), the court noted first that in Stevens, the challenged guidelines "were virtually self-executing, intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law." Id. at 1303. In contrast to those guidelines, the court held that the FHP general orders were effective in themselves only as guidelines, subject in application to the discretion of the enforcing officer and thus qualified as internal management memoranda. In the case at bar, however, the policy itself is self-executing and the enforcing officer has no discretion in enforcing the policy. Therefore, the cited case is not controlling. See also The Florida State University v. Dann, 400 So.2d 1304, 1305 (Fla. 1st DCA 1981)("where salary document was issued by the agency head for implementation by subordinates with little or no room for discretionary modification" the document was considered a rule.) As to the related contention that the agency statement more closely fits the definition of an internal management memorandum than a rule, it is true that the statement does not affect any "plan or procedure important to the public" and arguably has "no application outside the agency issuing the memorandum". However, it does affect "the private interests" of petitioner and thus cannot be considered an internal management memorandum.

    
    

17. Respondent has also contended that the Auxiliary is not an agency as defined by Subsection 120.52(1), Florida Statutes, and thus Auxiliary policies cannot be considered "agency" statements within the meaning of chapter 120. Admittedly, the Auxiliary is not an agency but rather is an organization of volunteers within the meaning of Part IV of Chapter 110, Florida Statutes. At the same time, however, it must be recognized that the policy in question was drafted by the FHP, a statutorily created governmental unit within respondent, and is applied and enforced by that same entity. Indeed, the Auxiliary members themselves had no say in the development of the Manual. Given these considerations, the policy may be considered as a statement of the FHP and subject to the requirements of section 120.535.

    
    

18. Having concluded that the agency statement is a rule, the next inquiry is whether rulemaking is feasible and practicable. The agency failed to demonstrate that it "has not had sufficient time to acquire the knowledge and experience reasonably necessary to address (the) statement by rulemaking" or that "related matters are not sufficiently resolved to enable the agency to address (the) statement by rulemaking." Further, there was no showing that "the agency is currently using the rulemaking procedure expeditiously and in good faith to adopt rules which address the statement." Therefore, it is concluded that rulemaking is feasible within the meaning of subsection 120.535(1)(a).

    
    

19. Subsection 120.535(1)(b) provides that "(r)ulemaking shall be presumed practicable to the extent necessary to provide fair notice to affected persons of relevant agency procedures and applicable principles, criteria, or standards for agency decisions unless the agency proves (one of the exceptions)." The underlying theme in this subsection appears to be the notion that affected persons should be given "fair" notice of informal agency procedures, standards

    and the like. Thus, the statute creates a presumption that rulemaking is the most practical way in which to give such fair notice to affected persons.

    Deference should also be given to the following legislative intent regarding the implementation of this subsection:

    
    

    The pertinent consideration with regard to the practicability of rulemaking is whether adopted rules provide fair notice. Actual knowledge of an agency statement not adopted by rulemaking does not suffice as fair notice. Rulemaking is practicable unless fair notice may be attained solely upon review of adopted agency rules.

    Staff of Fla. H. R. Comm. on Govtl. Ops., HB 1879 (1991) Staff Analysis 5 (final May 22, 1991)(on file with comm.)

    
    

    In this regard, respondent failed to show that "detail or precision in the establishment of principles, criteria, or standards for agency decisions is not reasonable under the circumstances". This is because there is no evidence that the challenged statement is so broad and complex as to require further agency study, review or technology in order to develop detail or precision prior to rule adoption. Next, there is no evidence that "the particular questions addressed are of such a narrow scope that more specific resolution of the matter is impractical outside of an adjudication to determine the substantial interests of a party based on individual circumstances." That is to say, respondent has not shown that the questions raised by petitioner are so narrow in scope that only in a 120.57(1) proceeding could the agency reasonably address those concerns with the required detail and precision. Finally, while petitioner and presumably all other Auxiliary members have actual notice of the policy, this does not constitute "fair notice" within the meaning of the statute. Further, actual notice cannot be attained by reviewing chapter 15B-9, the adopted rules that come closest to the subject. This being so, it is concluded that rulemaking is practicable.

    
    

20. In concluding that rulemaking is both feasible and practicable, the undersigned has considered the evidence, as set forth in finding of fact 8, regarding the agency's contention that rulemaking would be difficult and cumbersome, particularly since the agency has a virtual maze of informal policies dealing with all aspects of its responsibilities and duties. While this is a legitimate concern, unfortunately these considerations are either not appropriate considerations under section 120.535 or are insufficient to establish an exception. Thus, they cannot support a conclusion that an exception applies.

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that the petition is GRANTED, and the following agency statement in

Section 5.02.08 of the Florida Highway Patrol Auxiliary Policy Manual is

declared to fall within the definition of a rule, but has not been adopted as a rule:

Due to the sensitive relationship between the Florida Highway Patrol and wrecker companies, employment involving wrecker companies that do business with the Florida Highway Patrol is considered to be a conflict of interest.

Rulemaking is also found to be feasible and practicable.

DONE AND ENTERED this 29th day of October, 1992, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER, 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 29th day of October, 1992.

APPENDIX

Petitioner:

1. Partially accepted in findings of fact 4 and 5.

2. Partially accepted in findings of fact 6 and 7.

3. Partially accepted in finding of fact 7.

4. Rejected as being a conclusion of law.

Respondent:

a-b. Partially accepted in finding of fact 2.

c. Partially accepted in finding of fact 1. d-g. Partially accepted in finding of fact 3.

h. Partially accepted in finding of fact 6.

j. Partially accepted in finding of fact 4. 2-4. Partially accepted in finding of fact 2.

1. Rejected as being unnecessary.

2. Partially accepted in finding of fact 3.

3. Partially accepted in finding of fact 6.

4. Partially accepted in finding of fact 8.

Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, subordinate, irrelevant, not supported by the evidence, or a conclusion of law.

COPIES FURNISHED:

Jerry E. Traynham, Esquire

P. O. Box 4289

Tallahassee, Florida 32315-4289

Judson M. Chapman, Esquire Neil Kirkman Building, A-432

Tallahassee, Florida 32399-0504

V. Carroll Webb, Director

Joint Administrative Procedures Committee Holland Building, Room 120

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Laws and Administrative Code The Capitol, Room 1802

Tallahassee, FL 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A 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

DEPARTMENT OF HIGHWAY SAFETY NOT FINAL UNTIL TIME EXPIRES TO AND MOTOR VEHICLES, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

Appellant/Respondent,

CASE NO. 92-3900

v. DOAH CASE NO. 92-4816RU

PETE SPEAR,

Appellee/Petitioner.

/

Opinion filed January 19, 1994.

An appeal from an order of the Division of Administrative Hearings.

Enoch J. Whitney, General Counsel and Judson M. Chapman Assistant General Counsel, Tallahassee, for Appellant.

Jerry G. Traynham of Patterson and Traynham, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

BOOTH, LAWRENCE and DAVIS, JJ., CONCUR.

Docket for Case No: 92-004816RU

Orders for Case No: 92-004816RU