STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL CONSTRUCTION COMPANY, ) and CORVIN-MICHAEL, INC., )

)

Petitioner, )

)

1. ) CASE NO. 84-4103RX

   ) DEPARTMENT OF TRANSPORTATION, )

   )

   Respondent. )

   )

   
   

   FINAL ORDER

   
   

   For Petitioners: H. Michael Madsen, Esquire

   Anne Longman, Esquire Tallahassee, Florida

   
   

   For Respondent: Robert I. Scanlan, Esquire

   Tallahassee, Florida

   
   

   In this rule challenge proceeding, the issue is the validity of the second sentence of Rule 14-23.01(2), Florida Administrative Code. No final hearing was held in this case. Instead, the parties stipulated to petitioners' standing and to submission of the case to the Hearing Officer for determination on written argument.

   
   

   Section 334.02(6), Florida Statutes (1983), grants the Department of Transportation (Department) broad rule-making authority. But 334.02(5) makes the Department's authority and jurisdiction "subject to the limitations of . . . the legislative mandate hereinafter imposed."

   
   

   Rule 14-23.01(2), Florida Administrative Code, provides:

   
   

   1. Disqualification. Any contractor declared delinquent under the provisions of this

      Rule shall be disqualified from further bidding and shall be disapproved as a subcontractor during the period the contractor's certificate of qualification is suspended or revoked. Also, any individual, firm, partnership or corporation affiliated with a delinquent contractor to

      the extent that it is dependent upon the delinquent contractor for either personnel,

      equipment or finances, shall likewise be disqualified.

      
      

      Rule 14-23.01 implements Section 337.16, Florida Statutes (1983), which states:

      
      

      1. No contractor shall be qualified to bid when an investigation by the highway engineer

         discloses that such contractor is delinquent on a previously awarded contract, and in such case his certificate of qualification shall be suspended or revoked.

      2. The department may suspend, for a specified period of time, or revoke for good cause any certificate of qualification. Since Rule

14-23.01(2) sets out grounds for mandatory, not permissive, suspension or revocation,

it implements Subsection (1), not Subsection (2), of Section 337.16.

When an agency's rule affects the ability of an individual or corporation to engage in its business, the agency should strictly adhere to the rule. See White Construction Co. v. Department of Transportation, 281 So.2d 194, 197 (Fla. 1973). Although a statute such as Section 334.02(6) gives an agency a wide range of discretion in the exercise of its rule-making authority, the agency's rules may not "extend, modify or conflict with any law of this state or reasonable implications thereof." Department of Transportation v. Insurance Services Office, 434 So.2d 908, 910 (Fla. 1st DCA 1983). When the legislature provides both a general grant of authority and a specific provision, the specific provision controls. See Department of Health and Rehabilitative Services v. McTigue, 387 So. 2d 454 (Fla. 1st DCA 1980). This is especially true of a statute setting forth grounds for discipline of a licensee. Cf.

Capeletti Bros.v. Department of Transportation, 362 So. 2d 346, 347 (Fla. 1st DCA 1978) proceedings under Section 337.16 for revocation of a contractor's certificate of qualification are in effect license revocation proceedings).

In this case, Section 337.16(1), Florida Statutes (1983), describes only one occasion where mandatory suspension or revocation is appropriate -- mandatory suspension or revocation of a contractor who is delinquent on a previously awarded contract. By its terms, it does not authorize mandatory suspension or revocation of the certificate of an affiliate of the contractor, whether by rule or by otherwise. Because the second sentence of Rule 14- 23.01(2) attempts to extend mandatory suspension or revocation beyond the delinquent contractor to the contractor's affiliates, that part of the rule is an invalid exercise of delegated legislative authority. See Section 120.56, Florida Statutes (1983). 1/ Accordingly, the petition is granted, and the second sentence of Rule 14-23.01(2), Florida Administrative Code, is declared invalid.

DONE and ORDERED this 31st day of January, 1985, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 31st day of January, 1985.

ENDNOTE

1/ No opinion is intended to be expressed whether dependence upon an affiliated delinquent contractor for personnel, equipment or finances may be good cause for permissive suspension or revocation under Section 337.16(2), Florida Statutes (1983). That issue properly would be determined in proceedings under Section 120.57, Florida Statutes (1983).

COPIES FURNISHED:

Anne Longman, Esquire Carroll Webb, Esquire

H. Michael Madsen, Esquire Executive Director Messer, Rhodes and Vickers Administrative Procedures Post office Box 1876 Committee

Tallahassee, Florida 32302-1876 Room 120, Holland Building

Tallahassee, Florida 32301

Robert I. Scanlan, Esquire Department of Transportation Haydon Burns Building, MS 58 Tallahassee, Florida 32301

Paul Pappas, Secretary Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301

Ms. Liz Cloud, Chief Administrative Code Bureau Department of State

1802 The Capitol

Tallahassee, Florida 32301

Docket for Case No: 84-004103RX

Orders for Case No: 84-004103RX