STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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FINAL ORDER

On December 6, 2005, a final administrative hearing in this case was held in Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert R. Berry, Esquire

Eisenmenger, Berry & Peters, P.A. 5450 Village Drive

Viera, Florida 32955

For Respondent: Rafael Eduardo Madrigal, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

STATEMENT OF THE ISSUE

The issue in the case is whether certain forms related to inspection and operation of breath test instruments, and which are incorporated by reference into various rules adopted by the Florida Department of Law Enforcement (Respondent), must be published in their entirety in the Florida Administrative Weekly

during the rule adoption process.

PRELIMINARY STATEMENT

On November 7, 2005, the Petitioners filed a Petition Challenging Florida Department of Law Enforcement's Failure to Comply with the Requirements of Chapter 120, Florida Statutes, as it Relates to Promulgation of Breath Testing Forms.

The parties filed a Prehearing Stipulation on December 2, 2005. Pursuant to a Notice of Hearing dated November 9, 2005, the hearing commenced on December 6, 2005.

Neither party presented any witnesses at the hearing. The Petitioners had 26 exhibits identified as A through Z admitted into evidence.

An one-volume Transcript of the hearing was filed on December 27, 2005. The parties filed proposed recommended and proposed final orders on January 5, 2006. Based on the evidence presented during the hearing and the factual stipulation of the parties, the following findings of fact are set forth.

FINDINGS OF FACT

1. Each of the Petitioners has been arrested and charged with driving under the influence (DUI) in violation of

   Section 316.193, Florida Statutes (2005). The DUI cases are currently pending.

2. The Respondent is the state agency charged with adoption of rules related to operation of the alcohol testing program, including certification and operation of breath test instruments.

3. Apparently during the arrest process, the Petitioners were administered breath tests using instruments identified as Intoxilyzer breath machines. The machines were allegedly maintained, and the tests administered, pursuant to requirements set forth on various forms incorporated by reference into

   rules adopted by the Respondent under the provisions of Subsection 316.1932(1)(a)2., Florida Statutes (2005).

4. Florida Administrative Code Chapter 11D-8 sets forth rules applicable to the "Implied Consent Program," including rules related to breath testing administered to persons suspected of DUI.

5. Florida Administrative Code Rule 11D-8.017 includes a list of forms referenced within Chapter 11D-8, which are "hereby incorporated by reference."

6. Florida Administrative Code Rule 11D-8.017 states that all of the incorporated forms could "be obtained by contacting the Florida Department of Law Enforcement, Alcohol Testing Program, P. O. Box 1489, Tallahassee, Florida 32302."

7. Insofar as is relevant to this proceeding, the incorporated forms are as follows:

   FDLE/ATP Form 14 – Breath Test Result Affidavit – Revised March 2002.

   
   

   FDLE/ATP Form 16 – Agency Inspection Procedures – Revised March 2004.

   
   

   FDLE/ATP Form 24 – Agency Inspection Report

   – Revised March 2001

   
   

   FDLE/ATP Form 34 – Instrument Evaluation Procedures – Revised March 2004.

   
   

   FDLE/ATP Form 35 – Department Inspection Procedures – Revised March 2004.

   
   

8. FDLE/ATP Form 14 is titled "Breath Test Result Affidavit" and sets forth a series of 16 steps to be followed by a breath test operator in administering a breath test.

9. FDLE/ATP Form 16 is titled "Agency Inspection Procedures" and sets forth a series of 12 steps to be followed in cleaning and testing a breath machine.

10. FDLE/ATP Form 24 is titled "Agency Inspection Report" and is a form to be used by a permitted inspector to report machine inspection results to the Department of Highway Safety and Motor Vehicles.

11. FDLE/ATP Form 34 is titled "Instrument Evaluation Procedures" and sets forth the factors to be considered in evaluating breath testing equipment for approval for use in Florida.

12. FDLE/ATP Form 35 is titled "Department Inspection Procedures" and sets forth a series of 11 steps to be followed in cleaning and testing a breath machine.

13. The Respondent has not published the full text of the cited forms in the Florida Administrative Weekly at any time during the adoption, or subsequent amendment and re-adoption, of Florida Administrative Code Chapter 11D-8.

14. In the Petitioners' DUI cases, the State of Florida is seeking to present evidence of compliance with the rules and forms adopted by the Respondent related to maintenance of the machines and administration of the tests. The Petitioners assert that the rules and forms were improperly adopted and, therefore, are invalid.

15. The Petitioners are substantially affected by the rules and forms at issue in this proceeding.

16. There is no evidence that the Respondent was informed by the Department of State or the Administrative Procedures Committee during the rule adoption process that the process utilized in adopting the referenced rule was improper.

17. There is no evidence that the rules have not been readopted as necessary to accommodate revisions to the forms.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. § 120.56, Fla. Stat. (2005).

19. The Petitioners have the burden of establishing by a preponderance of evidence that the rules are an invalid exercise of delegated legislative authority as to the objections raised.

    § 120.56(3), Fla. Stat. (2005). The evidence fails to establish that the rules and forms referenced herein are an invalid exercise of delegated legislative authority.

20. Section 120.52, Florida Statutes (2005), provides the following relevant definitions:

    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. . . .

          
          

          * * *

          
          

          (15) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the 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:

          1. 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.

          2. Legal memoranda or opinions issued to an agency by the Attorney General or agency legal opinions prior to their use in connection with an agency action.

          3. The preparation or modification of:

          1. Agency budgets.

          2. Statements, memoranda, or instructions to state agencies issued by the Chief Financial Officer or Comptroller as chief fiscal officer of the state and relating or pertaining to claims for payment submitted by state agencies to the Chief Financial Officer or Comptroller.

          3. Contractual provisions reached as a result of collective bargaining.

          4. Memoranda issued by the Executive Office of the Governor relating to information resources management.

          
          

21. The forms cited in this case set forth various procedures established by the Respondent for collecting quantified evidence of DUI or for maintenance of the equipment used to perform alcohol breath testing. No challenge has been brought to the Respondent's authority to establish such rules.

22. The central issue in this case is whether the Respondent is required to publish the full text of each form in the Florida Administrative Weekly when providing notice that the

    forms are being incorporated into rules proposed for adoption. For purposes of this Final Order, the forms are presumed to meet the definition of "rule" because the forms constitute agency statements of general applicability that implement the provisions of Subsection 316.1932(1)(a)2., Florida Statutes (2005), the alcohol testing program, although it is unclear whether each element of each form could be so defined.

23. Section 120.54, Florida Statutes (2005), sets forth the applicable procedures to be followed by an agency in adopting administrative rules, including publication of notice in the Florida Administrative Weekly. Subsection 120.54(3)(a)1., Florida Statutes (2005), provides as follows:

    Prior to the adoption, amendment, or repeal of any rule other than an emergency rule, an agency, upon approval of the agency head, shall give notice of its intended action, setting forth a short, plain explanation of the purpose and effect of the proposed action; the full text of the proposed rule or amendment and a summary thereof; a reference to the specific rulemaking authority pursuant to which the rule is adopted; and a reference to the section or subsection of the Florida Statutes or the Laws of Florida being implemented, interpreted, or made specific.

    
    

24. The Petitioners assert that the reference in Subsection 120.54(3)(a)1., Florida Statutes (2005), to "full text" means that each form must be published in its entirety in the Florida Administrative Weekly during the rule adoption

    process and that in failing to publish the entire text of the forms, the Respondent failed to follow the applicable rulemaking procedures, rendering the related rules an invalid exercise of delegated legislative authority.

25. There is clearly no requirement that such forms be published in their entirety in the Florida Administrative Code. Subsection 120.54(1)(i)1., Florida Statutes (2005), provides as follows:

    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. A rule may not 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. The Department of State may prescribe by rule requirements for incorporating materials by reference pursuant to this paragraph.

    
    

26. The Department of State has, in fact, established rules related to incorporation of materials by reference in Florida Administrative Code Rule 1S-1.005, which provides in relevant part as follows:

    1S-1.005 Incorporation by Reference.

    1. Any ordinance, standard, specification or similar material may be incorporated by reference in a rule adopted pursuant to Section 120.54, F.S., and Rule 1S-1.002, F.A.C., subject to the following conditions:

       1. The material shall be generally available to affected persons.

       2. The material shall be published by a governmental agency or a generally recognized professional organization.

    2. The agency incorporating material by reference shall file with the Department of State a correct and complete copy of the referenced material with an attached certification page which shall state a description of the referenced material and specify the rule to which the referenced material relates. . . .

    3. Any amendments to material incorporated by reference must be promulgated under the rulemaking provisions of Section

    120.54, F.S., in order for the amended portions to be valid.

    
    

27. The Petitioners assert that the intent of a statutory amendment adopted in Chapter 84-203, Laws of Florida, was to require that the full text of all forms be published in the notice of proposed rule adoption set forth in the Florida Administrative Weekly. No evidence related to statutory intent was offered to support the assertion.

28. Prior to the 1984 amendment, the existing Subsection 120.55(1)(b)2., Florida Statutes (2005), included a prohibition on publication of forms in the Florida Administrative Weekly. The amendment deleted the prohibition. The statute also included a prohibition on publication of forms in the Florida Administrative Code, but the amendment required that such forms be filed with the Administrative Procedures Committee and that forms meeting the definition of "rule" be incorporated by reference into the appropriate rule.

29. The Petitioners suggest that deletion of the prohibition was indicative of the Legislature's intent that all forms be fully published in the Florida Administrative Weekly. Had the Legislature intended to require publication of all forms in the Florida Administrative Weekly, it could easily have done so in the amendment. No such requirement was enacted. It is not reasonable, absent other evidence of legislative intent, to presume that the Legislature intended to require that all forms be published in the Florida Administrative Weekly.

FINAL ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED that the Petition Challenging Florida Department of Law Enforcement's Failure to Comply with the Requirements of Chapter 120, Florida Statutes, as it Relates to Promulgation of Breath Testing Forms is DISMISSED.

DONE AND ORDERED this 24th day of January, 2006, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 2006.

COPIES FURNISHED:

Robert R. Berry, Esquire Eisenmenger, Berry & Peters, P.A. 5450 Village Drive

Viera, Florida 32955

Gregory W. Eisenmenger, Esquire Eisenmenger, Berry & Peters, P.A. 5450 Village Drive

Viera, Florida 32955

Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Rafael Eduardo Madrigal, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Scott Boyd, Executive Director and General Counsel

Joint Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Program Administrator Administrative Code

Department of State

R. A. Gray Building, Suite 101 Tallahassee, Florida 32399

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 the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a 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: 05-004068RU

Orders for Case No: 05-004068RU