STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH H. CHANCY, )

)

Petitioner, )

)

vs. ) Case No. 97-1627RU

) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge Don W. Davis, held a formal hearing in the above-styled case on June 16, 1997, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Jerry G. Traynham, Esquire

Post Office Box 4289 Tallahassee, Florida 32315-4289

For Respondent: Enoch J. Whitney, Esquire

Judson M. Chapman, Esquire Department of Highway Safety and Motor Vehicles

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

STATEMENT OF THE ISSUE

Whether proposed rules of Respondent constitute invalid exercises of delegated legislative authority.

PRELIMINARY STATEMENT

By Petition To Determine The Invalidity Of Rules, dated April 2, 1997, Petitioner challenged certain unpromulgated rules of Respondent.

By notice published April 18, 1997, Respondent commenced the process of promulgation of the subject rules and moved to dismiss Petitioner’s challenge. Following hearing on Respondent’s motion, an order was entered by the undersigned on May 9, 1997, construing the Petition To Determine The Invalidity Of Rules to be a challenge to proposed rules pursuant to Section 120.56(2), Florida Statutes.

Respondent’s challenge is directed to five regulations contained within the Florida Highway Patrol (FHP) Policy Manual. The adoption of the manual is the subject of Respondent’s proposed rule.

At the final hearing, Petitioner offered five exhibits and testimony of one witness, Petitioner. Respondent presented seven exhibits and testimony of two witnesses. The transcript of the final hearing was filed with the Division of Administrative Hearings on June 26, 1997. Proposed final orders submitted by the parties have been reviewed in the course of preparation of this final order.

FINDINGS OF FACT

1. The Florida Highway Patrol (FHP), a division of Respondent, was accredited by the Commission On Accreditation For Law Enforcement Agencies, Inc. (CALEA) by notification received on November 16, 1996.

2. For a period of five years prior to receipt of accredited status, FHP had been involved in that process. Among FHP actions taken in the process of accreditation was the revision of a policy manual for FHP members which took effect on February 1, 1996.

3. The policy manual is issued to all FHP sworn officers and a copy is maintained at each FHP station. Chapter 3.03 of the policy manual contains the five policies challenged in this proceeding.

4. FHP Policy 3.03.06 A 6 provides, as follows:

   
   

   Members will conduct themselves on and off- duty in such a manner so that their actions and behavior reflect favorably on the Division. Members will not engage in conduct which discredits the integrity of the Division or its employees, or which impairs the operations of the Department/Division.

5. FHP policy 3.03.06 A 19 provides: Members will be courteous to the public.

   Members will be tactful in the performance of

   their duties, will control their tempers, and exercise the utmost patience and discretion and will not engage in argumentative discussions even in the face of extreme provocation. In the performance of their duties, members will not use coarse, violent,

   profane or insolent language or gestures, and will not express any prejudice concerning race, religion, politics, national origin, lifestyle or similar personal characteristics.

   
   

6. FHP policy 3.03.03 A 33 provides:

   
   

   Involvement in political activities will not be permitted during members’ on-duty time.

   Political activities include soliciting or receiving any contribution for any political party or cause, or storing, posting, carrying or distributing political literature of any nature. Specifically, Florida Statutes provide that members shall not

   
   

   1. Hold or be a candidate for public or political office while in the employment of the State or take any active part in a political campaign while on-duty or within any period of time during which they are expected to perform services for which they receive compensation from the State. However, when authorized by the agency head and approved by the Department of Management

      Services, employees in the career service may be a candidate for or hold a local public office which involves no interest which conflicts or interferes with that state employment.

      
      

   2. Use authority of their position to secure for or oppose, any candidate, party or issue in a partisan election or affect the results thereof.

      
      

   3. Use any promise of reward or threat of loss to encourage or cause any employee to support or contribute to any political issue, candidate or party.

      
      

   4. Perform any police duty connected with the conduct of any election.

      
      

      Subsections (a)-(c) were taken from Section 110.233(4) and (5), Florida Statutes.

7. FHP policy 3.03.03 A 50 provides:

   Members, while off-duty, will refrain from consuming intoxicating beverages to the extent that it results in impairment, intoxication, or obnoxious or offensive behavior which discredits them or the Division, or renders the members unfit to report for their next regular tour of duty.

   
   

8. FHP policy 3.03.03 A 54 provides:

   
   

   Personal activities or associations of a member that knowingly create an apparent or real conflict of interest with the conduct of official duties are prohibited. A “conflict of interest” arises when a member’s private interest, whether of a financial nature or otherwise, conflicts with the member’s impartial conduct of official duties and responsibilities.

9. Section 321.02, Florida Statutes, provides, in pertinent part, the following:

   [Respondent] shall set up and promulgate rules and regulations by which the personnel of the Florida Highway Patrol shall be examined, employed, trained, located, suspended, reduced in rank, discharged, recruited, paid and pensioned, subject to civil service provisions hereafter set out.

   
   

10. Respondent provides citation to this statutory provision as the law implemented by the challenged regulations. This authority sufficiently supports adoption by reference, pursuant to 120.54 (l)(i), Florida Statutes, of the conduct regulations which form the subject of Petitioner’s challenge.

11. Discipline for violation of the foregoing policies is applied to a member through application of Chapter 15-3, Florida Administrative Code, which contains Respondent’s disciplinary guidelines. Among those guidelines is listed the offense of

    violation of rules, regulations or policies.

    
    

12. Following Petitioner’s filing on April 2, 1997, of the Petition To Determine The Invalidity Of Rules, Respondent published, on April 18, 1997, a Notice of Development of Proposed Rules in compliance with requirements of Chapter 120, Florida statutes. The text of the notice documented Respondent’s intent to adopt the FHP policy manual as an administrative rule.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.56, Florida Statutes.

14. Section 120.52(8), Florida Statutes, reads as follows:

    
    

    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 of the following applies:

       
       

       1. The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter;

          
          

       2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;

          
          

       3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;

          
          

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

          
          

       5. The rule is arbitrary or capricious;

       6. The rule is not supported by competent substantial evidence; or

          
          

       7. The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.

    
    

    A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement, interpret, or make specific the particular powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than the particular powers and duties conferred by the same statute.

15. In reviewing the challenged regulations, it should be noted that Section 120.54(l)(i), Florida Statutes, provides for the incorporation by reference of material similar to that contained in Respondent’s manual. Section 120.54(l)(i), Florida Statutes, reads as follows:

    (i) A rule may incorporate material by reference but only as the material exists on the date the rule is adopted. For purposes of the rule, changes in the material are not effective unless the rule is amended to incorporate the changes. No rule may be amended by reference only. Amendments must set out the amended rule in full in the same manner as required by the State Constitution for laws.

16. Respondent, in post-hearing submissions, renews its request for dismissal of the Petition on the basis that this proceeding is mooted. Respondent maintains it has commenced rulemaking and relies upon Section 120.56(4)(e), Florida Statutes, which reads as follows:

    (e) Prior to entry of a final order that all or part of an agency statement violates s. 120.54(1)(a), if an agency publishes, pursuant to s. 120.54(3)(a), proposed rules which address the statement and proceeds expeditiously and in good faith to adopt rules which address the statement, the agency shall be permitted to rely upon the statement or a substantially similar statement as a basis for agency action if the statement meets the requirements of s. 120.57(1)(e). If an agency fails to adopt rules which address the statement within 180 days after publishing proposed rules, for purposes of this subsection, a presumption is created that the agency is not acting expeditiously and in good faith to adopt rules. If the agency's proposed rules are challenged pursuant to subsection (2), the 180-day period for adoption of rules is tolled until a final order is entered in that proceeding.

17. The gravamen of Respondent’s motion is a renewal of Respondent’s argument that Petitioner has challenged unpromulgated rules, and as a result of Respondent’s April 18, 1997, publication of a notice evincing Respondent’s intent to adopt the FHP manual, further proceedings are now unnecessary. Such argument not only ignores the May 9, 1997, order of the undersigned which, after telephone conference with counsel for all parties, determined that Petitioner’s challenge would thereafter be construed as a petition directed to proposed rules,

    but also fails to grasp the expressed intent of Section 120.56(4)(e), Florida Statutes, to permit an agency to continue using policy pending its formal adoption as a basis for agency action only where such de facto usage of a policy is found to meet the requirements of Section 120.57(1)(e), Florida Statutes. The circumstances of the present case predate such a situation and examines the agency’s attempt to formally adopt policies as rules when measured against provisions of Section 120.52(8), Florida Statutes.

18. Additionally, the May 9, 1997, order of the undersigned also effectively determined that the agency had noticed its formal policy adoption intentions sufficiently to escape a determination that the subject policies were violative of the requirement in Section 120.52(8)(a), Florida Statutes, that an agency’s policies must fall solely due to failure to materially “follow the applicable rulemaking procedures or requirements set forth in [Chapter 120, Florida Statutes].”

19. Reviewing provisions of FHP Policy 3.03.06 A 6 in accordance with requirements of Section 120.52(8), Florida Statutes, the absence of any language descriptive of the type of behavior proscribed leaves this regulation vague. The proposed rule vests unbridled discretion to interpret and determine what is behavior which “discredits the integrity” of the FHP.

20. Provisions of FHP policy 3.03.06 A 19, on the other hand, is not an unlawful exercise of delegated legislative

    authority. The rule implements, interprets or makes specific particular duties granted by the law implemented, Section 321.02, Florida Statutes.

21. FHP Policy 3.03.03 A 33 proscribes certain political activities as unsuitable for FHP members. The proposed rule tracks certain statutory provisions already applicable to career service employees of the State of Florida and makes those requirements a condition of employment with FHP. The proposed rule does not contravene provisions of Section 120.52(8), Florida Statutes.

22. The remaining proposed rules which are challenged in this proceeding, FHP policy 3.03.03 A 50 and FHP policy 3.03.03 A 54, implement, interpret or makes specific particular duties granted by the law implemented, Section 321.02, Florida Statutes, and do not contravene requirements of Section 120.52(8), Florida Statutes.

ORDERED

Based on the foregoing findings of fact and conclusions of law, FHP Policy 3.03.06 A 6 is found to be an unlawful exercise of delegated legislative authority in that it violates provisions of Section 120.52(8)(d), Florida Statutes, and the remaining challenges to the proposed rules are dismissed.

DONE AND ORDERED this 16th day of July, 1997, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9645

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1997.

COPIES FURNISHED:

Jerry G. Traynham, Esquire Patterson and Trayham

Post Office Box 4289 Tallahassee, Florida 32315-4289

Enoch Jon Whitney, Esquire Judson M. Chapman, Esquire Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399-0500

Charles J. Brantley, Director Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room B439 Tallahassee, Florida 32399-0500

Enoch Jon Whitney, Esquire Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399-0500

Carroll Webb, Executive Director Administrative Procedure Committee

120 Holland Building Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO APPEAL

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 the 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: 97-001627RU

Orders for Case No: 97-001627RU