vs. ) CASE NO. 75-2114RP
Respondent. )
This matter was submitted by Petition to the Division of Administrative Hearings challenging certain rules of the Florida Real Estate Commission.
For Petitioner: Cynthia S. Tunnicliff, Esquire
Law Office of Sam Spector, P.A. Post Office Box 82
The initial communication to this division was filed before the challenged rules had been adopted. Specifically, by letter of November 4, 1975, David W. Dalton, President of the petitioning corporation, indicated he was challenging the validity of proposed rules 21V-3.01 through 21V-3.07 of the Florida Real Estate Commission. By subsequent communication, the same petitioner again challenged the proposed rules which were re-noticed in the Florida Administrative Weekly by the Real Estate Commission. In response to a letter by the undersigned hearing officer, an appropriate petition was finally filed before this division complying with the requirements of Section 120.54(3),
F.S. The Real Estate Commission has challenged whether the petition challenging the above referenced rules was filed within fourteen (14) days of notice in the Administrative Weekly as is required by Section 120.54(3), F.S.
To further complicate these matters, when the final amended petition was actually filed in this case, apparently a copy of said petition was never served upon the Real Estate Commission. Consequently, the Real Estate Commission filed these rules with the Secretary of State and the rules appear to have been adopted pursuant to Section 120.54. Although Section 120.54 requires that where a petition challenging the validity of proposed rules has been filed with this division, such occurrence suspends the effectiveness of the rule until said petition is resolved. By failing to have been served with a copy of the
petition, however, the Florida Real Estate Commission was unaware that this matter was still pending before this division and was certainly under no obligation to delay filing these rules with the Secretary of State. Section 120.54(11) states that a rule becomes effective within 20 days after filing with the Secretary of State.
Although it is not necessary to reach a decision on the effectiveness of these rules questioned before this hearing officer, it is the opinion of this hearing officer that since the rules have been filed with the Secretary of State's Office, through no fault of the Real Estate Commission, they should be considered existing rules of that agency unless some other reason to determine their invalidity has been shown.
The petitioner, in its brief filed before this hearing officer, first alleges under 120.54(3) that the rules in question are an exercise of invalidly delegated legislative authority. At the hearing held in this matter on March 2, 1976, the petitioner submitted verified copies of the rules in question. This exhibit was marked "Petitioner's Exhibit No. 1." These rules establish educational requirements for real estate salesmen and brokers. The petitioner, being a corporation whose business is offering courses to members of the public to train them to take and pass licensing examinations for real estate brokers and salesmen, is a party who is substantially affected by these rules. Therefore, the petitioner does have standing to challenge the validity of these rules.
The petitioner's first argument is a challenge to the validity of a statute granting the Real Estate Commission the authority to adopt the instant rules. Section 120.54(13) states in part: "No agency has inherent rulemaking authority The legislative enactments ostensibly granting to the Florida Real Estate Commission the authority to adopt the rules in question are found in Section 475.04(2), F.S., and Section 475.17(4), F.S. Section 475.04(2) provides:
"(2) For the purpose of performing its duty to educate registrants under subsection
, the commission may conduct, offer, sponsor, prescribe or approve real estate educational courses for all persons registered with the commission as real estate brokers, or salesmen and the cost and expense of such courses shall be paid as provided for other expenses of the commission by Section 475.12."
(Emphasis added)
and Section 475.17(4), F.S., provides:
"(4) When the commission has established an educational course or series of educational courses to be regularly conducted, offered, or sponsored by it pursuant to Sec. 475.04(2), the commission may require the satisfactory completion of one or more of the educational courses or equivalent courses taken at an accredited college, university, or community college or in a real estate school registered pursuant to Sec. 475.451 as a condition precedent for any person to become registered
as a real estate broker or salesman which requirement shall be in addition to other qualifications required by this chapter . . ."
Petitioner maintains that the rule-making authority contained in the above quoted statutory sections lacks specific guidelines to be a valid delegation of legislative authority. Citing State ex rel. Davis v. Fowler, 114 So. 435 (1927), petitioner claims that these statutes give the Real Estate Commission unbridled discretion to regulate real estate educational courses and are, therefore, invalid attempts at delegating rule-making authority. A very thorough analysis of guidelines for determining the validity of a statute granting rule-making authority is found in Lewis v. Florida State Board of Health, 143 So.2d 867 (1962). In that case the Florida Supreme Court stated at p. 875-876:
"The legislature may not delegate the power to enact a law, to declare what a law shall be, or to exercise an unrestricted discretion in applying a law. The legislature in enacting a law complete in itself may especially authorize an administrative commission within fixed and valid limits to provide rules and regulations for the
complete operation and enforcement of the law within its express general purpose.
The true distinction, therefore, is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and the conferring of authority or discretion to make rules and
regulations as to the execution of a properly enacted law. A statute that is too
vague and incomplete as a law in itself cannot be used as the vehicle for an administrative body to proceed to establish, attempt and promulgate a code for regulating a particular industry. The rule-making power of the Board is limited to the making of rules and regulations necessary to the enforcement of the act. It is incumbent
upon an agency relying on an act as authority for its regulations to prescribe only such regulations as come within the specifications laid down. When regulations are to be imposed in order to promote health, welfare, safety and morals it is necessary that exactions be fixed in the ordinance with such certainty that they not be left to the whim or caprice of the administrative agency . . .
A more specific case dealing with a similar situation was found in Conner v. Joe Hatton, Inc., 216 So.2d 209 (1968). In that Case, legislation granting the Commissioner of Agriculture the right to enact certain marketing orders was challenged as an invalid delegation of legislative authority. The Supreme Court in that case specifically held that a statute granting the commissioner authority to determine the type of containers in which to ship vegetable products was a valid delegation of rule-making authority. That court
further stated that the fact that some authority, judgement or discretion is necessary to carry out an administrative duty does not invalidate the statute in question. It appears to this hearing officer that the same type of discretion that is used in an administrative determination regulating agricultural containers is also present in a determination by the Real Estate Commission as to the length, duration, form and content of courses educating the public for occupations as real estate salesmen or brokers.
Every delegation of legislative authority must involve some discretion and judgement on the part of the administrative agency seeking to implement the statute, either by adopting rules or by direct enforcement of the statute, or otherwise, all administrative duties would be purely ministerial acts. It does not appear to the hearing officer that the guidelines in the above sections quoted of Chapter 475, F.S., are so broad, vague and indefinite as to render the statutes invalid.
Finally, the petitioner argues that if the authorizing legislation is valid, the rules are an invalid exercise of this rule-making authority. Several arguments are presented as to why the form and content of these rules render them invalid. Without repeating these arguments, it is safe to say that the rules in question do no more than is authorized by statute. Chapter 475, F.S., permits the Real Estate Commission to prescribe approved real estate educational courses. None of the rules in question go beyond the statutory authority granted to the Real Estate Commission by Chapter 475, F.S.
It is, therefore, Ordered that the request for a declaration of the invalidity of these rules contained in the petition in this matter is hereby Denied.
DONE and ORDERED this 25th day of March, 1976, in Tallahassee, Florida.
KENNETH G. OERTEL, Director
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
P. O. Box 82
