STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBBIE STADIUM CORPORATION, )

a Florida corporation, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6935RP

)

DEPARTMENT OF COMMERCE, ) DIVISION OF ECONOMIC DEVELOPMENT, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case on December 22, 1992, at Tallahassee, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:

APPEARANCES

For Petitioner: H. Lee Moffitt, Esquire

Mark Herron, Esquire

E. Gary Early, Esquire

Akerman, Senterfitt & Eidson, P.A. Post Office Box 10555

Tallahassee, Florida 32302-2555

For Respondent: William S. Stevens III, Esquire

Office of the General Counsel Department of Commerce Collins Building, Room 535

107 West Gaines Street Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue for resolution in this case is whether Proposed Rules 8E- 4.003(3), (4), (9), (10) & (11) and Proposed Rule 8E-4.005 constitute invalid exercises of delegated legislative authority as asserted by Petitioner.

PRELIMINARY STATEMENT

Prior to the formal hearing in this case, the parties entered into a Joint Stipulation of Standing and a Joint Prehearing Stipulation. At the formal hearing, the Petitioner submitted the deposition testimony of Greg Farmer, Secretary of the Department of Commerce, and William S. Stevens III, General Counsel for the Department of Commerce, who was identified by the Department as a designated agency representative. The deposition testimony was submitted by stipulation of the parties in lieu of live testimony. The Respondent called no

witnesses. Petitioner introduced into evidence exhibits A through W, which were admitted by stipulation and without objection by Respondent. Respondent offered no independent exhibits as evidence.

A transcript of the hearing was filed with the Hearing Officer on January 7, 1993, and thereafter, all parties filed proposed final orders containing proposed findings of fact and conclusions of law. All of the parties' post hearing submissions have been carefully considered during the preparation of this Final Order. Specific rulings on all proposed findings of fact proposed by all parties are contained in the appendix to this Final Order.

FINDINGS OF FACT

Findings based on written stipulations.

1. On September 11, 1992, Petitioner submitted an application for certification as a "facility for a new professional sports franchise."

   
   

2. Petitioner's application contains the information required by Section 288.1162(4)(a)-(g), Florida Statutes, but does not demonstrate that eligible costs for which funding is being sought pursuant to Section 212.20, Florida Statutes, are for costs incurred after the award of the new professional sports franchise or after the start of certification, as required in Proposed Rule 8E- 4.003(3).

   
   

3. Due to the effect of the proposed rule on Petitioner, Petitioner is a "substantially affected person" as that term is used in Section 120.54(4)(a), Florida Statutes.

   
   

   Findings based on evidence at hearing.

   
   

4. On October 30, 1992, the Department of Commerce published Proposed Rule 8E-4 in the Florida Administrative Weekly. Portions of that proposed rule are the subject of this rule challenge proceeding. The full text of the proposed rule (with the challenged portions underscored) is as follows:

   
   

   8E-4.001 Purpose. This rule contains the procedure for applying for certification pursuant to s. 288.03, Florida Statutes.

   
   

   8E-4.002 Application Procedures. An application for certification under s. 288.03, Florida Statutes, as a "Facility For A New Professional Sports Franchise" or a "New Spring Training Franchise Facility" shall be submitted to the Secretary of Commerce and shall comply with and conform to the following requirements:

   1. An original and 5 copies shall be submitted.

   2. Applicants shall be a "unit of local government" as defined in s. 218.369, Florida Statutes, or a private sector group that has contracted to construct or operate a professional sports franchise facility on land owned by a unit of local government. The application must be signed by an official

      senior executive of the applicant.

   3. Items or forms requiring certification shall be notarized according to Florida Law providing for penalties for falsification.

      
      

      8E-4.003 Application Contents. An application for certification as a Facility for New Professional Sports Franchises shall include the following:

      1. Documentation that the franchise team meets the following requirements:

         1. The franchise is not based in Florida prior to July 1, 1990.

         2. The applicant has a signed agreement with a new professional sports franchise for the use of the facility for at least 5 years or more.

         3. The new professional sports franchise agreement has been approved by one of the following leagues:

            National League (baseball) American League (baseball) National Basketball Association National Football League National Hockey League

      2. An independent analysis or study which demonstrates that the use and operation of the professional sports franchise facility will generate revenues on transactions at the facility of $2 million or more annually by taxes imposed under Part I of Chapter 212, Florida Statutes.

      3. Documentation of the actual cost or cost estimate for new construction, reconstruction, or renovation of the facility. Such documentation of cost shall be for construction, reconstruction, or renovation of the facility incurred or to be incurred after the award of the new professional sport franchise or after the start of certification. Eligible costs also include those incurred after July 1, 1990 and prior to the granting of a franchise where the costs were a necessary part of the competitive process for the awarded franchise.

      4. The applicant shall provide a commencement date upon which new construction, reconstruction, or renovation began or will begin.

      5. Projections demonstrating that the new franchise will attract a paid attendance of more than 300,000 annually. All data sources and methodologies of the projections must be included.

      6. Documentation that the municipality in which the facility is located, or the county if the facility is in an unincorporated area,

         has certified by resolution after a public hearing that the application serves a public purpose.

      7. Documentation that a unit of local government as defined in s. 218.369, Florida Statutes, is responsible for the construction, management, or operation of the professional sports franchise facility, or holds title to the property on which the professional sports franchise facility is located.

      8. Documentation that the applicant has demonstrated that it has provided, is capable of providing, or has a financial or other commitments to provide more than one-half of the costs incurred or related to the improvement and development of the facility.

      9. Statement certifying that applicant will comply with s. 288.1167, Florida Statutes, relating to requirements for minority participation.

      10. Documentation of the applicant's organization structure and principals.

      11. Applicants that are private sector groups shall file a public entity crime affidavit as required by s. 287.133(3)(a), Florida Statutes.

      
      

      8E-4.004 Application Contents. An application for certification as a New Spring Training Franchise shall include the following:

      1. Documentation that the baseball team franchise meets the following requirements:

         1. The franchise is not based in Florida prior to July 1, 1990.

         2. The applicant has a signed agreement with a new professional sports franchise for the use of the facility for a term of at least 15 years.

         3. The agreement is approved by either the National League or the American League of professional baseball.

      2. Projections which demonstrate that the new professional baseball spring training facility will attract a paid attendance of at least 50,000 annually.

      3. Documentation of the actual cost or cost estimate for new construction, reconstruction, or renovation of the facility. Such documentation of cost shall be for construction, reconstruction, or renovation of the facility incurred or to be incurred after the grant of certification. Eligible costs also include those incurred after July 1, 1990 and prior to the granting of a franchise where the costs were a necessary part of the competitive process for the awarded franchise.

      4. The applicant shall provide a

         commencement date upon which new construction, reconstruction, or renovation began or will begin.

      5. Documentation that a unit of local government as defined in s. 218.369, Florida Statutes, is responsible for the construction, management, or operation of the professional sports franchise facility, or holds title to the property on which the professional sports franchise facility is located.

      6. Documentation that the applicant has demonstrated that it has provided, is capable of providing, or has financial or other commitments to provide more than one-half of the costs incurred or related to the improvement and development of the facility.

      7. Documentation that the New Spring Training Franchise Facility is located in a county that is levying a tourist development tax pursuant to s. 125.0104(3)(b),(c),(d) and (l), Florida Statutes, at the rate of 4 percent by March 1, 1992, and 87.5 percent of the proceeds from such tax are dedicated for the construction of a spring training complex.

      8. A site map and certification that the facility is located within 20 miles of an interstate or other limited access highway system.

      9. Statement certifying that applicant will comply with s. 288.1167, Florida Statutes, relating to requirement for minority participation.

      10. Documentation of the applicant's organization structure and principals.

      11. Applicants that are private sector groups shall file a public entity crime affidavit as required by s. 287.133(3)(a), Florida Statutes.

      
      

      8E-4.005 Application Processing.

      1. The Department of Commerce shall certify applications only after these rules have been published in the Florida Administrative Weekly and all requested public hearings have been held. Subsequent to this, the Department shall have two weeks following receipt of an application to notify an applicant of any deficiencies in an application. The Department will allow 30 days from the date

         of notification for the applicant to correct any such deficiencies.

      2. Upon determining that an applicant is or is not certifiable, the Secretary of Commerce will notify the applicant by means of an official letter of his status. If certifiable, the Secretary will notify the Executive Director of the Department of

      Revenue of such certification by means of an official letter. If the Department of Commerce determines that the applicant satisfies all the conditions of Section 288.1162, F.S., and this rule, certification shall be issued by the Department of Commerce no sooner than, either the date of commencement as provided by the applicant in 8E-4.003(5) or 8E-4.004(5) or 120 days

      following receipt of application under this rule whichever is the longer. No certification shall be issued until the Department of Commerce has verified that actual construction, reconstruction, or renovation has commenced. The Department of Revenue will begin distributing funds 60 days following certification, but no such distribution may be made prior to July 1, 1992, pursuant to s. 288.03, Florida Statutes.

      
      

5. If and when the above-quoted proposed rule becomes an effective rule, the Department of Commerce intends to apply the provisions of the subject proposed rule in the course of determining whether to grant or deny the Petitioner's application for certification as a "facility for a new professional sports franchise."

   
   

6. The Department of Commerce intends for the language in Proposed Rule 8E-4.003(3) and (4) to limit funding under the applicable statute to new facility construction costs or to costs of renovation of an existing facility. The Department intends to disallow the use of grant funds for existing stadium construction costs, even if such costs were expended to facilitate the future recruitment of a "new professional sports franchise." The new requirements for certification contained in Proposed Rule 8E-4.003 are considered by the Department to be substantive in nature.

   
   

7. The purpose of the funding program created pursuant to Sections 288.1162 and 212.20, Florida Statutes (1991), is to encourage the recruitment of professional sports franchises to Florida.

   
   

8. During the 1992 session of the Florida Legislature, amendments were proposed to Section 288.1162, Florida Statutes (1991), which would have had the effect of limiting funding under the program to a reimbursement of costs of new construction. In Senate Bill 216-H, the Legislature proposed authorizing the Department to require that information be submitted regarding

   
   

   cost estimates verified by the Department for the new construction, reconstruction or renovation of the facility. This estimate shall include the costs of debt service on, or the costs to fund debt service reserve

   funds, costs for arbitrage rebate obligations, and other costs payable with respect to, bonds issued for the new construction, reconstruction or renovation of the facility. (e.s)

   The amendments proposed in Senate Bill 216-H would have eliminated as an approved use of the funds payment of costs of refinancing construction bonds and would have limited the use of funds only to newly incurred costs. In addition, the proposed bill provided that

   
   

   upon certification of an applicant, the Department shall also certify to the Department of Revenue the amount to be paid monthly to the applicant. In the case of a professional sports franchise facility, such amount shall be the lesser of $166,667 per month for a 30 year period, or the costs of the project verified by the Department pursuant to paragraph (4)(g) [which is the language cited directly above] and amortized over a 30 year period.

   
   

   The statutory limitation proposed by Senate Bill 216-H is consistent with, if not identical to, the limitation intended by the Department of Commerce through the promulgation of Proposed Rule 8E-4. Senate Bill 216-H failed to be enacted into law.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sections 120.54 and 120.57, Florida Statutes.

   
   

10. Pursuant to stipulation of the parties and by virtue of the fact that the Petitioner is an applicant for certification as a "facility for a new professional sports franchise," Petitioner is a substantially affected person as that term is used in Section 120.54(4)(a), Florida Statutes, and, therefore, has standing to maintain this action.

    
    

11. In 1988, the Florida Legislature created a mechanism by which applicants could receive state funding

    
    

    for the public purpose of paying capital and other costs in connection with the use of the professional sports franchise facility and the location or relocation of a professional sports franchise.

    
    

    Section 288.1162(3), Florida Statutes (1989). The legislative program, codified as Sections 288.1162 through 288.1165, Florida Statutes (1989), authorized the Department of Commerce to "develop rules for the receipt and processing of applications for funding pursuant to 288.1164" and provided that "such rules shall require as a minimum that an application include the information set forth in this subsection...." (e.s.)

    
    

12. The 1988 funding program was contingent upon legislative approval of the professional sports franchise project and specific approval of a level of funding to be provided to any eligible applicant certified pursuant to the Act. See, Section 288.1164, Florida Statutes (1989).

    
    

13. The method of funding authorized by the 1988 Legislature contained a variable, as opposed to a fixed, level of funding based upon the approved

    professional sports facility sales tax revenues. The program provided that "no governmental entity shall receive more than $2 million in any state fiscal year" and provided that the Professional Sports Facility Sales Tax Revenues were to be transferred to units of local government in monthly installments "for a period not to exceed thirty years...." (e.s.) Section 288.1164, Florida Statutes (1989). The program also provided that any professional sports franchise facility receiving funding, which generated a net after tax profit, would be obligated to refund a portion of the state grant money to the state in an amount equal to the net after tax profit. Section 288.1164, Florida Statutes (1989).

    
    

14. In 1991, the Legislature passed Senate Bill 2040, which substantially amended the provisions of Section 288.1162, Florida Statutes, repealed the provisions of Section 288.1164, Florida Statutes, and created Section 212.20(6)(g)4.

    
    

15. Section 288.1162, Florida Statutes (1991), now serves as the exclusive mechanism for certification of applicants as a "facility for a new professional sports franchise." Section 288.1162, Florida Statutes (1991), reads as follows:

    
    

    1. The Department of Commerce shall serve as the state agency for screening applicants for state funding pursuant to s. 212.20 and for certifying an applicant as a "facility for a new professional sports franchise" or a "new spring training franchise facility."

    2. The Department of Commerce shall develop rules for the receipt and processing of applications for funding pursuant to s. 212.20.

    3. As used in this section, the term "new professional sports franchise" means a professional sports franchise that is not based in this state prior to July 1, 1990.

    4. Prior to certifying an applicant as a "facility for a new professional sports franchise", the Department of Commerce must determine that:

       1. A "unit of local government" as defined in s. 218.369 is responsible for the construction, management, or operation of the professional sports franchise facility or holds title to the property on which the professional sports franchise facility is located.

       2. The applicant has a verified copy of a signed agreement with a new professional sports franchise for the use of the facility for a term of at least 5 years.

       3. The applicant has a verified copy of the approval from the governing authority of the league in which the professional sports franchise exists authorizing the location of the professional sports franchise in this state after July 1, 1990. The term "league" means the National League or the American League of Major League Baseball, the National Basketball Association, the National Football

          League, or the National Hockey League.

       4. The applicant has projections, verified by the Department of Commerce, which demonstrate that the new professional sports franchise will attract a paid attendance of more than 300,000 annually.

       5. The applicant has an independent analysis or study, verified by the department, which demonstrates that the amount of the revenues generated by the taxes imposed under part 1 of chapter 212 with respect to the use and operation of the professional sports franchise facility will equal or exceed $2 million annually.

       6. The municipality in which the facility for a new professional sports franchise is located, or the county if the facility for a new professional sports franchise is located in an unincorporated area, has certified by resolution after a public hearing that the application serves a public purpose.

       7. The applicant has demonstrated that it has provided, is capable of providing, or has financial or other commitments to provide more than one-half of the costs incurred or related to the improvement and development of the facility.

    5. As used in this section, the term "new spring training franchise" means a spring training franchise that is not based in this state prior to July 1, 1990.

    6. Prior to certifying an applicant as a "new spring training franchise facility," the Department of Commerce must determine that:

       1. A "unit of local government" as defined in s. 218.369 is responsible for the construction, management, or operation of the new spring training franchise facility or holds title to the property on which the new spring training franchise facility is located.

       2. The applicant has a verified copy of a signed agreement with a new spring training franchise for the use of the facility for a term of at least 15 years.

       3. The applicant has a financial commitment to provide 50 percent or more of the funds required by an agreement for the use of the facility by the new spring training franchise.

       4. The proposed facility for the new spring training franchise is located within 20 miles of an interstate or other limited-access highway system.

       5. The applicant has projections, verified by the Department of Commerce, which demonstrate that the new spring training franchise facility will attract a paid attendance of at least 50,000 annually.

       6. The new spring training franchise facility is located in a county that is levying a tourist development tax pursuant to s. 125.0104(3)(b), (c), (d), and (l), at the rate of 4 percent by March 1, 1992, and 87.5 percent of the proceeds from such tax are dedicated for the construction of a spring training complex.

    7. An applicant certified as a facility for a new professional sports franchise or as a new spring training franchise facility may use funds provided pursuant to s. 212.20 only for the public purpose of paying for the construction, reconstruction, or renovation of a facility for a new professional sports franchise or new spring training franchise facility or to pay or pledge for the payment of debt service on, or to fund debt service reserve funds, arbitrage rebate obligations, or other amounts payable with respect to, bonds issued for the construction, reconstruction, or renovation of such facility or for the reimbursement of such costs or the refinancing of bonds issued for such purposes.

    8. The Department of Commerce shall notify the Department of Revenue of any facility certified as a facility for a new professional sports franchise or as a new spring training franchise facility. The department may certify no more than six facilities as facilities for a new professional sports franchise or as new spring training franchise facilities. The department may make no more than one certification for any facility.

    9. The Department of Revenue may audit as provided in s. 213.34 to verify that the distributions pursuant to this section have been expended as required in this section. Such information is subject to the confidentiality requirements of chapter 213.

       
       

16. Section 212.20(6)(g)4, Florida Statutes (1991), establishes a non- discretionary fixed distribution of funds to any facility that has been certified by the Department of Commerce. The cited statutory provision reads as follows:

    
    

    4. Beginning July 1, 1992, of the remaining proceeds, $166,667 shall be distributed monthly by the [D]epartment [of Revenue] to each applicant that has been certified by the Department of Commerce as a "facility for a new professional sports franchise" pursuant to s. 288.1162 and $41,667 shall be distributed monthly by the [D]epartment [of Revenue] to each applicant that has been certified by the Department of Commerce as a "new spring training franchise facility"

    pursuant to s. 288.1162. Distributions shall begin 60 days following such certification and shall continue for 30 years.

    
    

17. Pursuant to Section 120.54(4), Florida Statutes (1992 Supp.), any substantially affected party may seek an administrative determination of the invalidity of a proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority. Section 120.52(8), Florida Statutes (1992 Supp.), contains the following pertinent definition:

    
    

    1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

       2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

       3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

       4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

       5. The rule is arbitrary or capricious.

    
    

18. Since the Petitioner is challenging the validity of the Department's proposed rule, it has the burden of proving in this proceeding that the proposed rule constitutes an invalid exercise of delegated legislative authority as that term is defined in Section 120.52(8), Florida Statutes. Specifically, the Petitioner has alleged that the agency has exceeded its grant of rulemaking authority; that the rule enlarges, modifies or contravenes the specific provisions of law implemented; and that the rule is arbitrary or capricious.

    
    

19. In Section 288.1162(1), Florida Statutes, the Legislature charged the Department of Commerce with the responsibility to screen applicants for certification as a facility for a new professional sports franchise.

    
    

20. Section 288.1162(2), Florida Statutes, describes the rulemaking authority of the Department of Commerce with respect to the certification process. Specifically, Section 288.1162(2), Florida Statutes, provides that "the Department of Commerce shall develop rules for the receipt and processing of applications for funding pursuant to s. 212.20." That statement provides the full and complete grant of rulemaking authority for the promulgation of Proposed Rule 8E-4. The Department of Commerce has not been provided with any broader grant of authority for administering, implementing, or enforcing the certification process.

    
    

21. In this case, the specific authority in the provisions of law implemented that were identified by the Department in its published notice are clear and unambiguous. The Department's rulemaking authority is limited to

    rules regarding the receipt and processing of applications and may not be extended to rules establishing substantive eligibility and funding criteria. As noted in Steinbrecher v. Better Construction Co., 587 So.2d 492, 493 (Fla. 1st DCA 1991), in cases where, as here, the statute is clear and unambiguous,

    
    

    courts may not resort to rules of statutory construction. Rather, the statute must be given its plain and ordinary meaning....

    [F]urther, courts are "without power to construe an unambiguous statute in a way which would extend, modify or limit its express terms or its reasonable and obvious implication." (Citations omitted.)

    
    

22. By attempting to create a class of "eligible costs" to restrict the levels of funding that may be made available to an applicant for certification as a new professional sports franchise and to establish eligibility criteria beyond those created by statute, the Department of Commerce has ventured outside the realm of its rulemaking authority and has, therefore, promulgated a rule that is contrary to law. See, State v. Jenkins, 469 So.2d 733, 734 (Fla. 1985); Department of Administration v. Albanese, 445 So.2d 639, 641 (Fla. 1st DCA 1984). The situation presented in Albanese is very similar to this case. In Albanese, the Division of Retirement attempted to create a class of part-time members of the Florida Retirement System that was not authorized by statute.

    The statute only recognized creditable service on the basis of the position filled and time period worked. When the Division of Retirement created a class of service based on the amount earned in a pay period, the Court found that the Division had exceeded its authority. In that regard, it is significant that the Court's ruling recognized the Legislature's very broad grant of authority to the Division to "make such rules as are necessary for the effective and efficient administration of this system." Albanese compares with this case in that the Department of Commerce has similarly created a class of eligible costs that is not recognized in the statute. However, this case is even more compelling than Albanese given the Department's very limited authority to promulgate "rules for the receipt and processing of applications for funding. "

    
    

23. As stated in Board of Trustees of the Internal Improvement Trust Fund

    v. Board of Professional Land Surveyors, 566 So.2d 1358, 1360 (Fla. 1st DCA 1990),

    
    

    all rulemaking authority delegated to administrative agencies is of course limited by the statute conferring the power....

    According to Section 120.52, Florida Statutes, a proposed rule is an invalid exercise of delegated legislative authority if it "goes beyond the powers, functions and duties delegated by the legislature." If the agency has exceeded its grant of rulemaking authority or if the rule enlarges, modifies or contravenes the specific provisions of law implemented such infractions are among those requiring a conclusion that the proposed rule is an invalid exercise of delegated legislative authority. s. 120.52, F.S.

24. Similarly, in Cataract Surgery Center v. Health Care Cost Containment Board, 581 So.2d 1359, 1361 (Fla. 1st DCA 1991), the court said that

    
    

    an agency may not enlarge, modify or contravene legislative pronouncements....

    This court held ... that proposed rules which expand the authority of the state agency beyond that established by the statutory scheme were invalid. Any attempt by an agency to extend or enlarge its jurisdiction beyond its statutory authority will be declared to be invalid.

    
    

25. In this case, the Department of Commerce, through admittedly substantive rule requirements, has attempted to expand its agency jurisdiction by its attempt to limit funding that has been specifically authorized by statute, by attempting to impose additional non-statutory eligibility criteria, and by attempting to extend the period within which applications must be granted or denied to a period greater than that provided by law. The agency's attempt to do these things exceeds its grant of rulemaking authority and also enlarges, modifies, or contravenes the specific provisions of law implemented. To the extent the proposed rules have such effects, they are an invalid exercise of delegated legislative authority.

    
    

26. The fact that the Legislature used different language in defining a "facility for a new professional sports franchise" and a "new spring training franchise facility" is persuasive evidence that a "facility for a new professional sports franchise" is not limited to new construction. The legislative language describing the two types of facilities is clearly different. The courts have held that "[t]he legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended." Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984). For the Department to construe the two definitions in the same manner is incorrect, and to incorporate that construction into its rule enlarges, modifies, or contravenes the statute and exceeds the Department's legislative authority.

    
    

27. The fact that the Legislature changed the variable rate funding program that existed from 1988 to 1991 to a mandatory, fixed funding program indicates that restrictions of funding based on applicant specific criteria were intended to be eliminated. In general, when a statutory program is amended, "we may assume ... that the legislature intended the amended statute to have a meaning different from that accorded to it before the amendment." Hall v. Oakley, 409 So.2d 93, 97 (Fla. 1st DCA 1982). In this case the assumption would appear to be strengthened by the fact that in the 1992 legislative session efforts to further amend Section 288.1162, Florida Statutes (1991), were unsuccessful.

    
    

28. With regard to the provisions of Proposed Rule 8E-4.003(9), (10) and (11), there does not appear to be any rulemaking authority at all. Such being the case, those proposed provisions are arbitrary and capricious.

    
    

29. With regard to the provisions of Proposed Rule 8E-4.005(1) and (2) establishing time periods for the Department processing of applications for certification, these proposed time periods violate the provisions of Section 120.60, Florida Statutes, which specify the time periods within which agencies must dispose of applications. The Department of Commerce has not been given

statutory authority to violate Section 120.60, Florida Statutes. Therefore, these provisions exceed the Department's grant of delegated legislative authority and are arbitrary and capricious.

On the basis of all the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:

That the following provisions of the Department of Commerce's proposed rules are invalid exercises of delegated legislative authority: Proposed Rule 8E-4.003(3), (4), (9), (10), and (11), and 8E-4.005(1) and (2).

DONE AND ORDERED this 25th day of March, 1993, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 25th day of March, 1993.

APPENDIX TO FINAL ORDER, CASE NO. 92-6935RP

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

Paragraphs 1, 2, 3, 4, 5, and 6: Rejected as constituting conclusions of law, rather than proposed findings of fact. (Most of these conclusions have been incorporated into the conclusions of law portion of this Final Order.)

Paragraph 7: Accepted.

Paragraphs 8, 9, and 10: Rejected as constituting legal arguments and conclusions of law, rather than proposed findings of fact. (Much of the information in these paragraphs has been included in the conclusions of law portion of this Final Order.)

Paragraph 11: Accepted.

Paragraphs 12, 13, 14, and 15: Rejected as argument or as subordinate and unnecessary commentary regarding the language of the challenged rule provisions. (The full text of the proposed rules is included in the findings of fact.)

Paragraphs 16 and 17: Accepted in substance.

Paragraphs 18, 19, 20, 21, 22, 23, 24, 25, and 26: Rejected as constituting argument or conclusions of law, rather than proposed findings of fact.

Paragraphs 27 and 28: Rejected as subordinate and unnecessary details. Paragraphs 29 and 30: Rejected as irrelevant.

Paragraph 31: The historical information in this paragraph regarding Senate Bill 216-H is accepted. The remainder of this paragraph is rejected as constituting argument, rather than proposed findings of fact.

Paragraph 32: Rejected as constituting argument, rather than proposed findings of fact.

Paragraphs 33, 34, 35, 36 and 37: Rejected as constituting mixtures of argument and subordinate and unnecessary details, rather than proposed findings of fact.

Paragraph 38: Rejected as statement of position, rather than proposed findings of fact.

Paragraphs 39, 40, 41, and 42: Rejected as consisting primarily of argument, rather than proposed findings of fact.

Paragraph 43: First sentence accepted in substance. Last sentence rejected as constituting argument, rather than proposed finding of fact.

Paragraph 44: Rejected as consisting primarily of argument, rather than proposed findings of fact.

Paragraph 45: First sentence accepted in substance. Last sentence rejected as constituting argument or conclusion of law, rather than a proposed finding of fact.

Paragraph 46: Rejected as constituting argument or conclusions of law, rather than proposed findings of fact.

Findings submitted by Respondent:

Paragraph 1: Rejected as constituting a conclusion of law, rather than a proposed finding of fact.

Paragraphs 2 and 3: Accepted in substance.

Paragraph 4: Rejected as constituting legal argument or a conclusion of law, rather than a proposed finding of fact.

Paragraphs 5, 6, and 7: Rejected as constituting a conclusion of law, rather than a proposed finding of fact.

Paragraphs 8 and 9: Rejected as constituting legal arguments or conclusions of law, rather than proposed findings of fact.

COPIES FURNISHED:

H. Lee Moffitt, Esquire Mark Herron, Esquire

E. Gary Early, Esquire

Akerman, Senterfitt & Eidson, P.A. Post Office Box 10555

Tallahassee, Florida 32302-2555

William S. Stevens III, Esquire Department of Commerce

Collins Building, Room 535

107 West Gaines Street Tallahassee, Florida 32399

Greg Farmer, Secretary Department of Commerce

536 Collins Building

107 West Gaines Street Tallahassee, Florida 32399-2000

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

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.

Docket for Case No: 92-006935RP

Orders for Case No: 92-006935RP