STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOMEBUILDERS AND CONTRACTORS ) ASSOCIATION OF PALM BEACH )

COUNTY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 79-353RX

)

DEL-TRAIL FIRE CONTROL TAX )

DISTRICT NO. 9, )

)

Respondent. )

)

RECOMMENDED ORDER

The Homebuilders and Contractors Association of Palm Beach County, Inc.: ("Petitioner" hereafter) has filed a petition for administrative determination of the invalidity of certain rules of the Del-Trail Fire Control District No. 9 ("Respondent" hereafter). The petition was filed under authority of Section 120.56, Florida Statutes. Petitioner contends that fire prevention resolution number 78-1 adopted by the Respondent is a rule, that the Respondent did not properly promulgate the resolution as a rule in accordance with the provisions of Section 120.54, Florida Statutes, and that the resolution therefore constitutes an invalid exercise of legislative authority. The Respondent contends that it is not an "agency" within the contemplation of the Florida Administrative Procedure Act, and that it is therefore not governed by the procedures set out in Section 120.54.

The parties entered into certain stipulations which were received in evidence, and the facts are not in dispute. The parties have stipulated as follows:

1. Petitioners have the standing to bring a Petition for an Administrative Hearing under Florida Statutes 120.56.

   
   

2. The Respondent passed and adopted Resolution 78-1 (on December 13, 1978) and has been enforcing it from that day forward.

   
   

3. Respondent has not complied with Chapter

   120 in passing and adopting said Resolution 78-1.

   
   

4. If the Division of Administrative Hearings determines that the Del-Trail Fire Control Tax District No. 9 is an "agency" within the meaning of Section 120.52(1), Florida Statutes, then Resolution 78-1 is invalid in its

   entirety because of Respondent's failure to

   comply with the procedural provisions of Florida Statutes 120.

   
   

5. If the Division of Administrative Hearings determines that said Del-Trail Fire Control Tax District No. 9 is not an "agency" within the meaning of Section 120.52(1), Florida Statutes, then the Division of Administrative Hearings has no jurisdiction in this cause.

   
   

6. Neither party waive any rights or remedies of appeal by the foregoing stipulations.

   
   

7. That Petitioner is substantially affected by said resolution as stated in paragraphs 2 and 3 of the Petition for Administrative Determination and by reason thereof has standing to bring this action.

The issue that has been raised in this proceeding is whether the Respondent is an "agency" within the meaning of Section 120.52(1), Florida Statutes. If it is not an agency, it is not subject to the provisions of the Administrative Procedure Act. If it is an agency, its rules which have not been adopted in accordance with the procedures enunicated in the Act, would be invalid. State Department of Administration v. Harvey, 356 So.2d 323 (1 DCA Fla. 1978); Department of Environmental Regulation v. Leon County, 355 So.2d 297 (1 DCA Fla. 1977); State Department of Administration v. Stephens, 344 So.2d (1 DCA Fla.

1977).

The Respondent is a special tax district. It was created by the Board of County Commissioners in Palm Beach County, Florida, acting under authority of special acts of the Florida Legislature. Chapter 63-1747, Laws of Florida; Chapter 68-1421, Laws of Florida. The Respondent operates within specified borders that lie entirely within Palm Beach County. It performs fire control functions within its boundaries. Its affairs are conducted by a board, the members of which are appointed by the Governor of the State, unless the Governor fails to act to fill a vacancy within sixty days, in which case appointments are made by the Board of County Commissioners of Palm Beach County.

The term "agency" is defined at Section 120.52, Florida Statutes as follows:

1. "Agency" means:

   1. The Governor in the exercise of all executive powers other than those derived from the Constitution.

   2. Each other state officer and each state department, departmental unit described in s. 20.04, commission, regional planning agency, board, district, and authority, including, but not limited to, those described in Chapters 160, 163, 298, 373, 380, and 582, except any legal entity or agency created in whole or in part pursuant to Chapter 361, part II.

   3. Each other unit of government in the state, including counties and municipalities to the extent they are expressly made subject to this

act by general or special law or existing judicial decisions.

The Respondent is not an agency under paragraph (a). Although the Governor has authority to appoint members of the Respondent's board, he exercises no further control over its activities. Clearly the actions of the board are not the actions of the Governor. The Respondent is likewise not an agency within the meaning of paragraph (b). All of the various governmental entities enumerated in the paragraph are modified by the word "state". The Respondent's authority lies completely within the confines of Palm Beach County. It cannot be considered a "state district".

Whether the Respondent is an agency within the meaning of paragraph (c) is a more difficult inquiry. The punctuation of the paragraph renders the legislative intent unclear. The paragraph can be reasonably read to indicate that while counties and municipalities are subject to the provisions of the Administrative Procedure Act only to the extent that they are expressly made subject to it by other law, other local units of government are expressly included. The paragraph could also be read to provide that counties, municipalities, and other local units of government are covered only to the extent that they are expressly made subject to the Act by other law. There are not yet any judicial decisions squarely on point. The Respondent has cited Sweetwater Utility Corp. v. Hillsborough County, 314 So.2d 194 (2 DCA Fla.

1975); and Amerson v. Jacksonville Electric Authority, 362 So.2d 433 (1 DCA Fla. 1978) in support of its position. The cases are not determinative. In Sweetwater the court concluded that a board of county commissioners was not an agency under paragraph (b) of Section 120.52(1), and that no general or special law or existing judicial decision made the board subject to the act for the purposes of the subject proceeding. In Amerson, the court equated a municipal electric company with the municipality, and held that the municipality was not subject to the provisions of the Administrative Procedure Act. Neither case involved a determination of whether an "other unit of government" is generally subject to the act, or only to the extent provided in other law.

The Attorney General has confronted this precise issue in two opinions. Op. Atty. Gen. 077-142 (Dec. 30, 1977); and Op. Atty. Gen. 078-26 (Feb. 21, 1978). In 078-26, it was concluded that a county mosquito control district, which existed as a special tax district within one county, was not an agency within the meaning of the Administrative Procedure Act. In 077-142, it was concluded that a hospital district with jurisdiction in only one county or a part thereof was not subject to the Act. The discussion in 077-142 of the legislative intent of Section 120.52(1)(c) is instructive:

The import of the distinction drawn by the court, and of the particular punctuation appearing in s. 120.52(1)(c), is that the phrase "to the extent they are expressly made subject to this act by general or special law or existing judicial decisions" is in limitation of applicability of the Administrative Procedure Act only to counties and municipalities. Such a construction of the limiting clause in the agency definition would result in the conclusion that the act applies to every unit of government within the state, with the exception of counties and municipalities, and counties and

municipalities would be included only by legislative act or judicial decision.

The foregoing possible construction of

the provisions of s. 120.52(1)(c), F.S., led a former member of the Law Revision Council, who served as chairman of the council's Committee on the Administrative Procedure Act Project, to observe:

The punctuation of this provision is troublesome. If a comma had been inserted after the word "municipalities", the provision would be a reasonably clear expression of the intent of the Law Revision Council, as expressed in its Reporter's Comments to the similarly worded draft approved by the Council. [Footnote omitted.]

Under this interpretation, the Act would cover:

(1) the state and (2) each other unit of government (including but not limited to counties and municipalities) to the extent that they are made subject to the act by general or special law, or by existing judicial decisions (that is, decisions rendered before enactment of the 1974 revision of the APA, which declared the 1961 APA applicable). The absence of a comma in the location indicated could lead to a different interpretation, to the effect that the Act covers: (1) the state; (2) counties and municipalities to the extent that they are made subject to the Act by general or special law, or by "existing" judicial decisions; and

(3) all units of government in the state other than the state, counties and municipalities, without the need for a law or judicial decision to make the Act applicable--this last category can include such units as school boards and tax adjustment boards, which arguably do not fall within the categories of state, county or municipal government. No indication can be found that the legislature intended this latter interpretation. This author prefers to view the statutory language as a carelessly punctuated attempt to carry out the intent of the Law Revision Council. (Levinson, The Florida Administrative Procedure Act. 1974 Revision and 1975

Amendments, 29 U. Miami L. Rev. 617, 625 (1975).]

The Reporter's Comments, cited in the text above as a footnote, provide:

"Local and regional government units of all types are brought under the act to the extent

that the legislature chooses to do so. . ." Reporter's comments on Proposed Administrative Procedure Act for the State of Florida, submitted to the Florida Law Revision Council, March 9, 1975, at 9. . .These comments accompanied the Reporter's Draft of the proposed statute, dated March 1, 1974. The comments were generally available to legislators and others during the following few weeks while the legislative process

leading to the enactment of the APA took place. [Levinson at 625.]

Arguably, the lack of comma after the word "municipalities" within s. 120.52(1)(c), F.S. suggest that the provision requiring either legislative act or judicial decisions to extend application of the act is limited only to counties or municipalities. The Supreme Court has addressed the role of punctuation in construction:

We realize that punctuation is considered to be the most fallible and the least reliable indication of the legislative intent in interpreting a statute. Historically, parliamentary enactments originally were not punctuated at all. However, the Legislatures of our country have consistently attempted to follow the rules dictated by the grammar books with the result that statutes now are punctuated prior to enactment.

The better rule now seems to be that the punctuation is a part of the Act and that it may be considered in the interpretation of the Act but it may not be used to create doubt or to distort or to defeat the intention of the legislature. [Wagner v. Botts, 88 So.2d 611, 613 (Fla. 1956).]

The Petitioner has cited no authorities to indicate the legislative intent gleaned by Professor Levinson, which is confirmed in the Law Revision Counsel Reporter's Comments, are inaccurate. It appears, that whatever the portent of the failure of the legislature to place a comma after the words "counties and municipalities" in paragraph (c), that the intent was to include local units of government on a selective basis. It does not appear that the Respondent has been made expressly subject to the provisions of the Administrative Procedure Act by any general or special law, or by any judicial decision. Whereupon, it is,

ORDERED:

The Petition of the Homebuilders and Contractors Association of Palm Beach County, Inc. for administrative determination is hereby dismissed.

ENTERED this 5 day of April, 1979, in Tallahassee,

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Alan J. Miller, Esquire LEVY, PLISCO, PERRY, SHAPIRO, KNEEN, & KINCADE

Post Office Box 1151 Palm Beach, Florida

Carol Stanley, Esquire Post Office Box 820

Delray Beach, Florida 33444

Mr. Carroll Webb Executive Director

Administrative Procedures Committee Room 120 Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State

Room 1802, Capitol Building Tallahassee, Florida 32304

Docket for Case No: 79-000353RX

Orders for Case No: 79-000353RX