STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1933RX

)

DEPARTMENT OF CRIMINAL LAW ) ENFORCEMENT, POLICE STANDARDS ) AND TRAINING COMMISSION, )

)

Respondent. )

)

FINAL ORDER

This case was heard pursuant to notice on October 22, 1979, in Tallahassee, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on the Petitioner's petition to determine the invalidity of an existing rule adopted by the Department of Criminal Law Enforcement, Police Standards and Training Commission pursuant to Section 120.56, Florida Statutes. Upon review by the Director of the Division of Administrative Hearings a determination was made and an order entered that the petition appeared to comply with the requirements of law, and the case was assigned for hearing.

APPEARANCES

For Petitioner: Phyllis O. Douglas, Esquire

1410 North East 2nd Avenue, Suite 200 Miami, Florida 33132

For Respondent: John J. Rimes, Esquire

Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

The hearing in this cause was conducted within thirty (30) days of the order of assignment. At hearing both Counsel requested and were granted an extension of time to file their proposed findings and memoranda in support of their respective positions. These proposals were received on or about November 7, 1979, and have been thoroughly considered.

PRELIMINARY DETERMINATIONS

Prior to hearing, the Respondent's Motion to Dismiss was argued. The portion of the petition relating to the invalidity of Rules 11B-15.01 and 15.02, Florida Administrative Code, were dismissed because the parties agreed that these rules had been repealed on September 11, 1979. Count II of the petition was dismissed because it related solely to constitutional challenges to the rules in question over which this forum lacks subject matter jurisdiction.

Count III was dismissed because this challenge was based upon an allegedly

inaccurate economic impact statement issued when the rule was adopted. Errors in such statements have been held not to be fatal to the validity of a rule.

Lastly, Count IV of the petition was dismissed because it was founded upon the alleged conflict of interest of the members of the commission which adopted the rule. The composition of the commission is mandated by statute. This challenge is directed at the statute creating the commission and the statute vesting it with the rule making power over the profession which they regulate and of which they are members. This forum lacks subject matter jurisdiction over a challenge to the statutes.

ISSUES

The only remaining count, Count I, attacks Rules 11B-14.01 and 11B-14.02, Florida Administrative Code. The attack is twofold: (1) the agency's rule is not applicable to the Petitioner; and (2) the rule is an invalid exercise of validly delegated legislative authority.

FINDINGS OF FACT

1. Petitioner is a local school board and political subdivision of the State employing school security officers who meet the definition of Chapter 943,

   Florida Statutes, of law enforcement officers.

   
   

2. Respondent is the Department of Criminal Law Enforcement, Police Standards and Training Commission which has adopted Rules 11B-14.01 and 11B- 14.02, Florida Administrative Code, following the procedures required by law, and applies them to the Petitioner and its law enforcement employees.

   
   

3. Those rules substantially affect the Petitioner by mandating, in part, the salary which it must pay its school security officers.

   
   

4. The Petitioner has standing to challenge the rules in question under Section 120.56, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

5. Two (2) challenges are raised to the rules in question, Rules 11B-14.01 and 11B-14.02, Florida Administrative Code. Petitioner asserts: (1) the rules in question are not applicable to it and its employees, and (2) that the rules are an invalid exercise of delegated legislative authority. Because of the legislative history of the statutes which form the basis for these two (2) rules, they are discussed separately, first Rule 11B-14.01 and then Rule 11B- 14.02, Florida Administrative Code.

   
   

6. Authority to enact Rule 11B-14.01 is found in Section 943.22(2)(g), Florida Statutes. However, to the extent this rule carries into effect the provisions of Section 218.23, Florida Statutes, it is not applicable to the Petitioner. Section 218.23 permits qualified local units of government to participate in revenue sharing if they meet certain conditions. Among these are compliance with the provisions of Chapter 943, Florida Statutes. However, the units of local government defined in Section 218.21(1), Florida Statutes, are county or municipal governments. Clearly the Petitioner is not a municipal government or county government as defined in Section 1, Article VIII of the State Constitution. Therefore, Petitioner may not receive any revenue sharing pursuant to Chapter 218, Florida Statutes. Rule 11B-14.01 is not a mandate that Petitioner pay its employees a minimum annual gross salary of $6,000, but is a

   condition which eligible units of local government must meet to receive revenue sharing. Because the Petitioner is not eligible for this program, these conditions are not applicable to it. Rule 11B-14.01, Florida Administrative Code, is not invalid but has no applicability to to the Petitioner as a mandate to meet its minimum annual gross salary provisions.

   
   

7. Rule 11B-14.02 is based solely on Chapter 943.22, Florida Statutes. This statutory provision is applicable to "any municipality, county, or other political subdivision of this state employing law enforcement officers." The definition of law enforcement officers covers the school security officers employed by Petitioner. This rule implements the provisions of the statute and is applicable to the Petitioner. Therefore, it is necessary to address the Petitioner's second assertion that this rule is an invalid exercise of delegated legislative authority.

   
   

8. The Petitioner alleges specifically that the provisions of Rule 11B- 14.02, Florida Administrative Code, which mandate that specified sums, which are the maximums provided by law, be paid to qualified officers under the salary incentive program, are an invalid exercise of duly delegated legislative authority. Subparagraphs (a), (b), (c) and (d) of Subsection (2) of Section 943.22, Florida Statutes, set forth the statutory salary incentive benefits. Typically, these provide that "each officer who (criteria stated) shall receive a sum not to exceed (amount stated) in the manner provided for in paragraph (g)." Paragraph (g) provides that "the Division of Police Standards and Training through its Commission shall establish rules as necessary to provide effectively for the proper administration of the salary incentive program." The rules adopted by the Division through its Commission mandate that an eligible officer shall receive the maximum statutory incentive for the level of qualification attained. Petitioner asserts that setting a minimum acceptable salary payment goes beyond the Commission's delegated power of administering the program and infringes on the power inherent in the employer to pay any amount not to exceed the statutory maximum provided in the statutes. The Respondent argues that it has the authority to set these minimum salary incentives because the incentives are to be paid in the manner provided by the rules under which it administers the program.

   
   

9. Neither interpretation is strained, and effective arguments are marshalled to support both views; however, the Hearing Officer finds the Respondent's interpretation most persuasive on the following grounds. Legislative intent must be the key to all statutory interpretation and the interpretation of the rules which implement the statutes. Clearly, the legislature wanted to upgrade the qualifications of law enforcement officers and sought to encourage this by providing salary incentives. Payment of these incentives is absolutely necessary to the legislative scheme and to proper administration of the program. If employers could pay a negligible amount as a salary incentive, then the program would not reach its goal of raising police standards. Consequently, the provisions establishing the maximum statutory amount as the minimum amount to be considered in determining compliance with the salary incentive program in certifying eligibility for revenue sharing is not an invalid exercise of delegated legislative authority. Rule 11B-14.02, Florida Administrative Code, is thereby a valid rule applicable to the Petitioner.

In sum, the Hearing Officer finds that Rules 11B-14.01 and 11B-14.02, Florida Administrative Code, are valid.

DONE and ORDERED this 11th day of December, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Phyllis O. Douglas, Esquire 1410 North East Second Avenue Suite 200

Miami, Florida 33132

John J. Rimes, Esquire Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Richard J. Hackmeyer, Esquire Police Standards and

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

Docket for Case No: 79-001933RX

Orders for Case No: 79-001933RX