STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN McNAMARA, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7525RX

) BROWARD COUNTY SHERIFF'S OFFICE, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

THIS CAUSE came on to be heard on the Motion to Dismiss filed by Respondent before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride. The Petitioner being advised of the motion, filed his response thereto, pursuant to Rule 22I-6.016(1), Florida Administrative Code, and on December 23, 1991, the parties presented evidence on the motion by telephone conference call. The following appearances were entered:

APPEARANCES

For Petitioner: John McNamara

2750 North 69th Avenue Hollywood, Florida 33024

For Respondent: Fern Rosenwasser, Esquire

Assistant Legal Counsel Broward County Sheriff 2600 Southwest 4th Avenue

Fort Lauderdale, Florida 33315 STATEMENT OF THE ISSUES

Whether the Division of Administrative Hearings has jurisdiction over the Respondent and/or the subject matter under the provisions of Section 120.56, Florida Statutes in order to conduct a formal hearing on a petition challenging the validity of the rules of the Broward County Sheriff's Office for the appointment of Special Process Servers.

PRELIMINARY STATEMENT

In the fall of 1985, Petitioner was denied appointment as a Special Process Server under the criteria established by Respondent on September 30, 1985.

Subsequently, Section 48.021, Florida Statutes, which authorizes county sheriff's to appoint special process servers, was amended by Chapter 91-306, Laws of Florida, effective July 1, 1991. On November 20, 1991, Petitioner filed with the Director of the Division of Administrative Hearings a Request for Administrative Determination Pursuant to Section 120.56(1), Florida Statutes.

After review, the document appeared to comply with the requirements for a petition for administrative determination of the invalidity of an existing rule

on the ground that the rule is an invalid exercise of delegated legislative authority, and was assigned to the undersigned Hearing Officer who scheduled the request for a formal hearing pursuant to the provisions of Section 120.57(1), Florida Statutes. Respondent filed a Motion for Protective Order and Stay and a Motion to Dismiss. Petitioner filed a response to the Respondent's motions.

After review of the motions and response, a hearing on the motion to dismiss was held, pursuant to Rule 22I-6.016(1),(4), Florida Administrative Code.

Based upon the stipulation of the facts and the arguments presented by the parties, the following findings of fact are determined:

FINDINGS OF FACT

1. On or about October 1, 1985, Nick Navarro, Sheriff of Broward County, set forth certain criteria for all persons who desired to be appointed special process servers for civil cases in the courts of Broward County. The criteria for appointment was revised in 1988.

   
   

2. On or about October 21, 1985, the Sheriff's Office denied Petitioner's application for appointment as a special process server in Broward County. His application was denied again in 1986.

   
   

3. In 1991, the Florida Legislature substantially revised the provisions of Section 48.021, Florida Statutes, which deals with the appointment of special process servers, in Chapter 91-306, Laws of Florida(1991). A Sheriff is authorized therein to prescribe additional rules and requirements directly related to the criteria and eligibility of a person to become a special process server.

   
   

4. On November 20, 1991, Petitioner filed a petition for an administrative determination of the validity of certain rules of the Broward County Sheriff, seeking to invoke the provisions of Sections 120.56 and 120.57(1), Florida Statutes(1991).

   
   

5. The challenged rules of the Sheriff's Office which relate to the appointment of special process servers were adopted in 1985 and revised in 1988.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings does not have jurisdiction over the subject matter of this proceeding, or the Respondent named in this proceeding pursuant to subsections 120.56 or 120.57(1), Florida Statutes.

   
   

7. In order to be entitled to a formal administrative hearing, Florida law requires that a party must be "substantially effected" by a "rule" of an "agency." Section 120.56, Florida Statutes(1991). Hearings held under this provision are conducted in the same manner as provided in Section 120.57(1), Florida Statutes, except that the hearing officer's order is final.

   
   

8. Under this law, the Division of Administrative Hearings is charged with the responsibility to conduct the formal hearing and review a challenged "rule" adopted by an "agency". However, the jurisdiction of this tribunal is limited to those cases where the Petitioner is a person "substantially effected" by a "rule" and the Respondent is an "agency" subject to the requirements of the Administrative Procedures Act, Chapter 120, Florida Statutes. As cogently stated by the First District Court of Appeal in Department of Environmental

   Regulation vs. Falls Chase Special Taxing District, 424 So.2d 787 (Fla. 1st DCA 1982), review denied 436 So.2d 98 (Fla. 1983):

   
   

   An agency has only such power as expressly or by necessary implication is granted by legislative enactment. An agency may not increase its own jurisdiction and, as a creature of statute, has no common law jurisdiction or inherent power such as might reside in, for example, a court of general jurisdiction. When acting outside the scope of its delegated authority, an agency acts illegally and is subject to the jurisdiction of the courts when necessary to prevent encroachment on the rights of individuals.

   
   

9. It is undisputed that the criteria, adopted in 1985 and revised in 1988 by the Broward County Sheriff, which implemented the provisions of Section 48.021, Florida Statutes relating to the appointment of special process servers are "rules" and that the Petitioner is a person "substantially effected" by those rules.

   
   

10. The crucial issue is whether the Broward County Sheriff is an "agency" within the meaning of Section 120.52(1), Florida Statutes, the Administrative Procedures Act.

    
    

11. Section 120.52(1), Florida Statutes provides in pertinent part:

    
    

    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 163, 298, 373, 380, and 582 and s. 186.504, 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. A judge of compensation claims shall not, in the adjudication of workers' compensation claims, be considered an agency or part of an agency for the purposes of this act.

       
       

12. The sheriffs of the various counties in Florida are constitutionally created county officers. Florida Constitution Article VIII, Section 1(d). Although the Sheriff is a county officer, he is not subject to the jurisdiction of the county commission but is an independent Constitutional officer. Sections 30.53, Florida Statutes. The sheriff has the duty, inter alia, to be the conservator of the peace within the county and to be the executive officer of

    the courts. The sheriff is also charged with the duty to execute all process, civil and criminal, within the county. Sections 34.07 and 48.021(1), Florida Statutes.

    
    

13. Under the provision of Section 48.021(2), Florida Statutes (1991) the sheriff of each county may, in his discretion, establish an approved list of natural persons designated as special process servers. Under subsection (b) of section (2) of section 48.021, the legislature has set forth minimum qualifications for appointment of persons applying to become special process servers. In addition, revised Section 48.021(2)(c), Florida Statutes provides that:

    
    

    (c) The sheriff may prescribe additional rules and requirements directly related to subparagraphs (2)(b)1.-8. regarding the eligibility of a person to become a special process server or to have his name maintained on the list of special process servers.

    
    

14. Section 120.52(1), Florida Statutes, the definitions section includes three types of "agencies" which are subject to the Administrative Procedures Act. Two are clearly inapplicable in the present case: (a) the governor in the exercise of all executive functions and (b) other state officers and state departments.

    
    

15. The third type is defined in Subsection 120.52(1)(c) which states:

    
    

    (c) 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.

    
    

16. The inclusion of the Sheriff in the requirements of the Administrative Procedures Act, as defined in subsection 120.52(1)(c), is restricted to the direct inclusion by reference to general or special law, or existing judicial decision. No judicial precedent subjects the Sheriff to the APA. Although Chapter 91-306, Laws of Florida (1991) grants the Sheriff rule making authority in regard to the appointment of special process servers, it does not directly "incorporate" the several sheriffs into Chapter 120. Thus, the Respondent is not subject to the APA and this tribunal lacks jurisdiction over the office of the Sheriff. Opinion of the Attorney General, 75-140 (1975); See: Rubinstein v. Sarasota County Public Hospital, 498 So.2d 1012 (Fla. 2d DCA 1986).

    
    

17. In view of the holding above, the Petitioner's other arguments are moot, including the alleged violations of the Government-in-the-Sunshine Law, specifically Section 286.011, Florida Statutes, and the Petitioner's right to an administrative hearing for Respondent's alleged violation of Section 112.011, Florida Statutes. Section 112.011(2)(a), Florida Statutes specifically exempts any law enforcement agency from the provisions of Chapter 120, and it is unquestioned that the Respondent is a law enforcement agency.

ORDER

Based on the foregoing findings of fact and conclusions of law, it is

ORDERED that the Request (Petition) for Administrative Determination of the invalidity of a rule of the Respondent, Broward County Sheriff, filed by the Petitioner, John McNamara, is DISMISSED with prejudice for the lack of jurisdiction of this tribunal over the Respondent.

DONE AND ENTERED this 17th day of February, 1992, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1992.

COPIES FURNISHED:

John P. McNamara 2750 N. 69th Avenue

Hollywood, Florida 33024

Broward County Sheriff's Office - Legal 2600 SW 4th Ave.

Ft. Lauderdale, Florida 33315

Phyllis Slater, Esquire General Counsel Department of State

The Capitol, PL-01

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

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 RULES 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: 91-007525RX

Orders for Case No: 91-007525RX