STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH THYE SEXTON, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4022RU

) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, DIVISION ) OF DRIVER LICENSES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was conducted in this case on November 29, 1988, at Tallahassee, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

For Petitioner: Kathleen C. Fox, Esquire

16 South Main Street Post Office Box 2442

Gainesville, Florida 32602

For Respondent: Suzanne Printy, Esquire

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32399-0504

ISSUES AND INTRODUCTION

This is a case in which the Petitioner seeks a determination that a policy of the Respondent is a rule, and that such policy/rule is invalid because it has not been adopted pursuant to the procedures set forth at Section 120.54, Florida Statutes.

The challenged rule was described in the petition as a policy to the effect

that

. . . a man's middle name can be changed to his wife's maiden name on his driver's license only by court order and not by presenting a copy of his marriage certificate. However, a female may add her husband's name on her driver's license as a surname by presenting a copy of her marriage certificate. . . .

At hearing it was clarified that the policy to which the challenge is directed is the policy set forth in the last paragraph of page 7-3 of the Florida Examiner's Manual.

At the hearing both parties presented testimony and offered exhibits which were received in evidence. The parties were originally allowed until December 17, 1988, within which to file their proposed final orders. At the request of the parties that deadline was extended until December 22, 1988. Both parties filed proposed final orders containing proposed findings of fact and conclusions of law. All findings proposed by the parties are specifically addressed in the appendix to this final order.

FINDINGS OF FACT

Based on the evidence received at the hearing in this case, I make the following findings of fact.

1. Petitioner's birth name, which name he used until the time of his marriage, was Joseph Charles Sexton. On August 8, 1988, Petitioner was married to Beth-Anne (NMN) Thye. Since the marriage, the Petitioner has used the name Joseph Thye Sexton and his wife has used the name Beth-Anne Thye Sexton. The marriage certificate of the Petitioner and his wife does not state what name either of them intends to use after the marriage.

   
   

2. Following the marriage, Petitioner's wife was permitted to change her name on her driver license from Beth-Anne Thye to Beth-Anne Thye Sexton, using only her marriage certificate.

   
   

3. Following the marriage, Petitioner' attempted to change the name on his driver license from. Joseph Charles Sexton to Joseph Thye Sexton, using only his marriage certificate, but was told by employees of the Respondent that he would need a court order to make such a change.

   
   

4. The Respondent has published a manual with the title Florida Examiner's Manual. The manual has been distributed by the Respondent and is used by the Respondent's employees in the fulfillment of their duties related to the issuance of driver licenses. The manual contains the current policies of the Respondent. The portions of the manual quoted hereinafter have not been adopted as rules pursuant to the rulemaking procedures of Section 120.54, Florida Statues.

   
   

5. The Florida Examiner's Manual, at page 7-7, under the subheading Applicant With Name Established On Florida Computer Record, reads as follows:

   
   

   Name changes can be proven by the following documentation:

   1. Females:

      *Marriage certificate,

      *Court order,

      *Out-of-state license,

      *Naturalization papers,

      *Divorce decree (Dissolution of marriage),

      *Names already established on record, or

      --May go back to previous last name, such as a maiden name, without Court Order, etc., if name is already on record.

      *Two forms of identification in the same name as listed on page 7-1.

   2. M

      *Naturalization paper,

      *Court Order, or

      *Two forms of identification in the came name as listed on page 7-1.

      
      

6. Page 7-3 of the Florida Examiner's Manual, under the subheading Hyphenated Names, includes the

   
   

   2. Hyphenated first, second, and/or last names can be used.

   *Maiden-married or married-maiden names of female applicants can be hyphenated at the request of the female applicant without court order. Identification proving maiden and married names must be presented.

   *Male applicants may not assume the maiden name of their spouses or use a

   hyphenated combination of the husband's last name and the wife's maiden name unless authorized by Court Order (pursuant to a May 7, 1984 Departmental legal opinion.)

   
   

7. The Respondent's rationale for the policies quoted in paragraphs 5 and 6, above, is that it is "customary" for a woman to take her husband's surname upon marriage, but it is not "customary" for a man to take his wife's maiden name upon marriage. Those policies promote administrative convenience, because they are consistent with established custom.

   
   

8. It is very important for the Respondent to establish and maintain accurate information as to the identity of its licensees, in order to protect the business community, law enforcement officers, the motoring public and the public at large. To this end the Respondent operates an extensive fraud prevention program.

   
   

9. If a male driver changes his name and is issued a new driver license in his new name, the Respondent does not lose track of that driver's prior driver record. Rather, an inquiry under the new name will also access information under the prior name.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of

   law.

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

    
    

11. The first issue to be addressed is whether the language of the last paragraph of page 7-3 of the Florida Examiner's Manual is a "rule" subject to a Section 120.56, Florida Statutes, challenge. Section 120.52(16), Florida

    Statutes, defines the term "rule," with exceptions not relevant here, as follows:

    
    

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

    
    

12. As noted in Straughn v. O'Riordan, 338 So.2d 832, 834 n.3 (Fla. 1976), the foregoing definition is written "broadly . . . to reach . . . invisible policy-making." The manual language here, like the memoranda discussed in Florida State University v. Dann, 400 So.2d 1304 (Fla. 1st DCA 1981), is of "virtually self-executing," and as in State Department Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977), the language at issue here was "issued by the agency head for implementation by subordinates with little or no room for discretionary modification." The fact that the challenged language has not been denominated a rule by the agency is not dispositive. As noted in State Department of Administration, Division of Personnel v. Harvey, 356 So.2d 323 (Fla. 1st DCA 1977): "Whether an agency statement is a rule turns on the effect of the statement, not on the agency's characterization of the statement by some appellation other than `rule.'" To the same effect, see Amos v. Department of Health and Rehabilitative Services, 444 So.2d 43 (Fla. 1st DCA 1983). On the basis of the foregoing authorities, it must be concluded that the challenged language in the Florida Examiner's Manual is a rule.

    
    

13. Pursuant to Section 120.56, Florida Statutes, a rule may be challenged on the ground that it is an "invalid exercise of delegated legislative authority." Section 120.52(8), Florida Statutes, defines the quoted term as, follows, in pertinent part:

    
    

    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 or more of the following apply:

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54 . . . .

    
    

14. Here the agency has totally failed to follow the applicable rulemaking procedures set forth in Section 120.54, Florida Statutes. Therefore the challenged rule is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(a) and Section 120.56, Florida Statutes.

    
    

15. The Petitioner also asserts several other grounds for invalidation of the rule. These additional grounds are not specifically addressed here, because the agency has not attempted to adopt the challenged rule by Section 120.54 rulemaking procedures and, unless and until such adoption is initiated, it would serve no useful purpose to discuss the substance of the rule.

16. In addition to seeking a determination that the challenged rule is invalid, Petitioner also seeks the entry of an order requiring the agency to take certain action in the future. Such an order is beyond the scope of relief available in a proceeding under Section 120.56, Florida Statutes.

For all of the foregoing reasons, it is ORDERED:

1. That the language of the last paragraph of page 7-3 of the Florida Examiner's Manual is a rule within the meaning of Section 120.52(16), Florida Statutes.

   
   

2. That the language of the last paragraph of page 7-3 of the Florida Examiner's Manual is an invalid rule because it has not been adopted pursuant to the rulemaking procedures set forth in Section 120.54, Florida Statutes.

   
   

3. That all other relief requested by the Petitioner is denied because it is beyond the scope of relief available in a proceeding under Section 120.56, Florida Statutes.

DONE AND ORDERED this 20th day of January, 1988, at Tallahassee, Florida.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1988.

APPENDIX TO FINAL ORDER IN CASE NO. 88-4022RU

The following are my specific rulings on all of the proposed findings of fact submitted by all parties.

Findings proposed by Petitioner Paragraphs 1, 2, and 3: Accepted.

Paragraph 4: Rejected as constituting a conclusion of law rather than a proposed finding of fact.

Paragraph 5: Accepted.

Paragraph 6: Accepted with exception of last sentence of quoted material; last sentence does not appear in the original of the quoted material.

Paragraph 7: Accepted.

Paragraphs 8, 9, and 10: Rejected as repetitious. Paragraph 11: Rejected as subordinate and unnecessary. Paragraphs 12 and 13: Accepted in substance.

Paragraph 14: Rejected as repetitious.

Paragraphs 15 and 16: Rejected as constituting conclusions of law or argument rather than proposed findings of fact.

Findings proposed by Respondent

Paragraph 1: Rejected as irrelevant. Paragraph 2: Accepted in substance. Paragraph 3: Rejected as irrelevant. Paragraph 4: Accepted.

Paragraph 5: Accepted in substance with unnecessary details omitted. Paragraphs 6 and 7: Rejected as irrelevant.

Paragraph 8: Accepted in substance.

Paragraphs 9 and 10: Rejected as subordinate and unnecessary details.

COPIES FURNISHED:

Kathleen C. Fox, Esquire

16 South Main Street Post Office Box 2442

Gainesville, Florida 32602

Suzanne Printy, Esquire Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399-0504

Charles J. Brantley, Director Division of Driver Licenses Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399-0504

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 RULE'S OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND 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: 88-004022RU

Orders for Case No: 88-004022RU