STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BILL COLON, )

)

Petitioner, )

vs. ) CASE NO. 94-0002RX

)

ETHICS COMMISSION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on February 26, 1994, by telephonic conference in Tallahassee, Florida.

APPEARANCES

For Petitioner: Bill Colon, Pro Se

11640 North West 30 Place

Sunrise, Florida 33323

For Respondent: Philip C. Claypoole, Esquire

Peter D. Ostreich, Esquire Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709

STATEMENT OF THE ISSUES

Whether Rule 34-5.029, Florida Administrative Code, is an invalid exercise of delegated legislative authority, as defined in Section 120.52(8), Florida Statutes.

PRELIMINARY STATEMENT

On January 5, 1994, Petitioner, Bill Colon (Colon), filed a petition to challenge the validity of Rule 34-5.029, Florida Administrative Code, alleging that the rule was in violation of the First and Fourteenth Amendments of the United States Constitution. The case was assigned to Hearing Officer Susan B. Kirkland. The final hearing was conducted by telephonic conference.

Neither Colon nor Respondent, State of Florida Commission on Ethics, presented sworn testimony or exhibits. Colon and Counsel for Respondent made legal arguments. No transcript was filed. The parties timely filed proposed final orders on March 7, 1994. The parties' proposed findings of fact are ruled on in the Appendix to this Final Order.

FINDINGS OF FACT

1. Petitioner, Bill Colon (Colon), resides in Sunrise, Florida.

   
   

2. Colon is substantially affected by Rule 34-5.029, Florida Administrative Code. The parties have stipulated to this finding.

   
   

3. Respondent, State of Florida Commission on Ethics (Commission), is a legislative agency governed in part by Chapter 120, Florida Statutes.

   
   

4. Rule 34-5.029 provides:

   
   

   1. Insofar as it may be applicable to the complaint, if the Commission determines that a person has filed a complaint alleging a

      violation of Chapter 112, F. S. against a public officer or employee with a malicious intent

      to injure the reputation of such officer or employee and that such complaint is frivolous and without basis in law or fact, the complainant shall be liable for costs plus reasonable attorney's fees incurred by the person complained against in the representation of him before the Commission.

   2. The commission shall make a determination only upon a petition for costs and attorney's fees filed with the Commission by the public officer or employee complained against within

      30 days following a dismissal of the complaint. Such petition shall state with particularity the facts and grounds which would prove entitlement to costs and attorney's fees.

      Staff shall forward a copy of said petition to the complainant by certified mail, return receipt requested. If the facts and grounds

      alleged in the complaint are not sufficient to state a claim for costs and reasonable attorney's fees, the Commission may dismiss the petition after an informal proceeding.

      If it appears that the facts and grounds may be sufficient, the Commission shall send a notice of hearing of the petition to both parties. In the discretion of the Chairman, the hearing may be held before the Division of Administrative Hearings, the full Commission, a single Commission member serving as hearing officer, or a panel

      of three Commission members serving as hearing officers; Commission hearing officers shall be appointed by the Chairman. The hearing shall be a formal proceeding under Section 120.57,

      F. S. and the model rules of the Administration Commission, Chapter 28, F. A. C. All discovery and hearing procedures shall be governed by

      the applicable provisions of Chapter 120,

      F. S. and Chapter 28, F. A. C. The parties to the hearing shall be the respondent and the

      complainant(s) who may be represented by counsel.

   3. The respondent has the burden of proving the grounds for an award of costs and attorney's fees by a preponderance of the evidence presented at the hearing. "Malicious intent to injure the reputation" may by proven by evidence showing ill will or hostility as well as by evidence showing that the complainant intended to bring discredit upon the name or character of the respondent by filing such complaint with knowledge that the complaint contained one or more false allegations or with reckless disregard

      for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics for Public Officers and Employees. Such reckless disregard exists

      where the complainant entertained serious doubts as to the truth or falsity of the allegations, where the complainant imagined or fabricated

      the allegations, or where the complainant filed an unverified anonymous tip or where

      there are obvious reasons to doubt the veracity of the information or that of the source of the information.

   4. If the petition is heard by the full Commission, the parties first shall present evidence going to, and the Commission may determine, the issue of whether the complaint was frivolous and without basis in law or fact. If the Commission finds that the complaint was not frivolous or was not without basis in law or fact, it shall direct staff to prepare an order complying with Section 120.59, F. S., denying the petition. The draft of that order shall be modified or adopted at the next Commission meeting. If the Commission finds that the complaint was frivolous and without basis in law or fact, it shall hear the evidence presented by the parties on the issue of whether the complaint was filed with a malicious intent to injure the reputation of the respondent. If the Commission finds that the complaint was not filed with a malicious intent to injure the reputation of the respondent, it shall direct staff to prepare

      an order complying with Section 120.59, F. S., incorporating its findings and denying the petition. A draft of that order shall be modified or adopted at the next Commission meeting. If the Commission finds that the complaint was filed with a malicious intent

      to injure the reputation of the respondent,

      it shall hear evidence presented by the parties on the amount of costs and attorney's fees to be awarded to the respondent and shall

      determine such amounts. The staff shall be directed to prepare an order complying with Section 120.59, F. S., incorporating its findings and granting the petition. The draft of the order shall be modified or adopted at the next Commission meeting.

   5. If the petition is heard by a hearing officer or a panel of hearing officers, evidence on all issues discussed above in (4) shall be presented by the parties at the hearing. The hearing officer(s) shall prepare a recommended order complying with

      Section 120.57, F. S., which shall be rejected, modified, or adopted by the full Commission.

   6. If the complainant fails to pay voluntarily such costs as may be assessed against him within 30 days following such finding by the Commission, the Commission shall so inform the Department of Legal Affairs, which shall bring a civil action to recover such costs.

      
      

5. The Commission cites as specific authority for promulgating the rule as Article II, Section 8(f), (h), Florida Constitution and Section 120.53, Florida Statutes. The Commission cites as the law implemented by Rule 34-5.029 as Section 112.317(8), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding as provided in Section 120.56, Florida Statutes.

   
   

7. Colon has standing to bring this rule challenge.

   
   

8. Section 120.56(1), Florida Statutes provides:

   
   

   Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

   
   

9. Section 120.52(8), Florida Statutes, provides:

   
   

   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;

   2. The agency has exceeded its grant of rulemaking authority, citation to which is

      required by s. 120.54(7);

   3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

   4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

   5. The rule is arbitrary or capricious.

   
   

10. Section 112.317(8), Florida Statutes, provides:

    
    

    In any case in which the commission determines that a person has filed a complaint against

    a public officer or employee with a malicious intent to injure the reputation of the officer or employee and in which such complaint is found to be frivolous and without basis in law or fact, the complainant shall be liable for costs plus reasonable attorney's fees incurred by the person complained against. If the complainant fails to pay such costs voluntarily within 30 days following such finding and dismissal of the complaint by the commission, the commission shall forward such

    information to the Department of Legal Affairs, which shall bring a civil action to recover such costs.

    
    

11. Petitioner's complaint with Rule 34-5.029 specifically deals with the following terms: "with a malicious intent to injure the reputation of a public officer"; "complaint is frivolous and without a basis in law or fact"; "intended to bring discredit upon the name or character"; a complaint containing "one or more false allegations or with a complete disregard as to whether the complaint contained false allegations of fact." (See page 2 of Petitioner's Proposed Recommended Order.)

    
    

12. The terms "with a malicious intent to injure the reputation of a public officer" and "frivolous and without a basis in law or fact" contained in Rule 34-5.029 are taken directly from Section 112.317(8), Florida Statutes. The terms "intended to bring discredit upon the name or character" and "one or more false allegations or with a complete disregard as to whether the complaint contained false allegations of fact" do not enlarge, modify, or contravene the provisions of Section 112.317(8). Thus, Petitioner is essentially challenging Section 112.317(8), the underlying statute on which the rule is based.

    
    

13. In Jax Liquors, Inc. v. State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 2 FALR 81-A (DOAH Final Order entered 12/13/79), aff'd, Jax Liquors v. Division of Alcoholic Beverages and Tobacco, 388 So. 2d 1306 (Fla. 1st DCA 1980), the hearing officer declined to invalidate rules that were based on a beverage law with a regulatory scheme similar to another beverage law that had been declared unconstitutional, stating ". . . the executive branch of government, of which the DOAH is an extension, is not empowered to make constitutional determinations on the validity of a statute and the Hearing Officer must proceed as if the subject provision is constitutional."

14. The facial constitutionality of a statute may not be determined in an administrative hearing. Key Haven v. Bd. of Trustees of Internal Imp., 427 So.2d 153, 157 (Fla. 1982). Nor may a hearing officer determine the facial constitutionality of an existing rule. Department of Environmental Regulation

    v. Leon County, 344 So.2d 297 (Fla. 1st DCA 1977).

    
    

15. Colon relies upon State Commission on Ethics v. Sullivan, 500 So.2d

    553 (Fla. 1st DCA 1986) for the proposition that the Commission does not have authority to promulgate substantive rules. Section 112.322(10), Florida Statutes, enacted after Commission v. Sullivan, provides:

    
    

    The commission is authorized to make such rules not inconsistent with law as are necessary to carry out the duties and authority conferred upon the commission by s. 8, Art. II of the State Constitution or by this part. Such rules shall be limited to:

    1. Rules providing for the practices and procedures of the commission.

    2. Rules interpreting the disclosure and prohibitions established by s. 8, Art. II of the State Constitution and by this part.

    
    

    Thus, the Commission does have authority to promulgate substantive rules to the extent provided in Section 112.322(10).

    
    

16. Colon argues that the Commission's rulings in Feren v. Colon, DOAH Case No. 92-2458, have violated his rights guaranteed by the First and Fourteenth Amendments of the United States Constitution. Mr. Colon's remedy would be judicial review of the final order in that case pursuant to Section 120.68, Florida Statutes, rather than the instant rule challenge.

    
    

17. Colon has failed to show that the Commission materially failed to follow applicable rulemaking procedures in the promulgation of Rule 34-5.029. Colon has not proved that the Commission exceeded its grant of rulemaking authority in the promulgation of Rule 34-5.029. There has been no showing that the rule enlarges, modifies, or contravenes Section 112.317(8), Florida Statutes. Colon has failed to prove that the rule is vague, fails to establish adequate standards for agency decisions, vests unbridled discretion in the Commission, or is arbitrary or capricious. Rule 34-5.019 is not an invalid exercise of delegated legislative authority.

ORDERED

The petition by Bill Colon is DENIED.

DONE AND ENTERED this 28th day of March, 1994, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 28th day of March, 1994

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0002RX

To comply with the requirements of Section 120.59(2), Florida Statutes, (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraph 1: Accepted in substance.

2. Paragraph 2: Accepted.

3. Paragraph 3: Rejected as constituting a conclusion of law.

4. Paragraphs 4-8: Rejected as constituting argument.

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-3: Accepted.

COPIES FURNISHED:

Bill Colon

11640 Northwest 30 Place

Sunrise, Florida 33323

Peter D. Ostreich, Esquire Phil Claypool, Esquire General Counsel

Ethics Commission

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahasee, Florida 32317-5709

Bonnie Williams Executive Director Ethics Commission

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahasee, Florida 32317-5709

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.

================================================================= MOTION FOR CORRECTED ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BILL COLON, )

)

Petitioner, )

vs. ) CASE NO. 94-0002RX

)

ETHICS COMMISSION )

)

Respondent. )

)

MOTION FOR CORRECTED ORDER

COMES NOW, the Petitioner BILL COLON, who after perusing the Final Order issued by the Hearing Officer and in accordance with paragraph 6OQ-2.032, files this motion for a corrected order based on the errors found. In Justification the following is submitted:

1. The Hearing Officer erred when the following was announced in the Final Order:

   
   

   1. Section 112.322(10) FS was enacted after the Commission v Sullivan ruling was enacted and therefore the Sullivan case was not applicable. The Hearing Officer failed to find that Chapter 34-5 was revised in February 1991 and cited in paragraph 34- 5.0001 and specifically in the annotation and legal citations, the Sullivan case was cited and stated as law that the Commission does not have a constitutional grant of authority to adopt rules procedural or

      substantive, except as rules might relate to financial disclosure statements. Therefore, an error was made when the Hearing Officer stated that the Commission vs Sullivan was not cognizable. It was still the applicable and governing law.

      
      

   2. The Hearing Officer in the final order stated that the Petitioner failed to prove that the Commission had in fact exceeded their authority by promulgating a rule which in fact permits a new class of petitioners. Rule 34-

      5.029 in fact proscribes that only a public officer can file a petition requesting attorney's fees and costs. Yet, the Hearing Officer fails to note that the Commission is allowing a new class of petitioners who are not necessarily public officers which is in fact substituting a public officer for an agency or municipality. The Hearing Officer erred when it was stated that the Petitioner failed to note that such change was substantive and that the change was not arbitrary and capricious. In fact the Commission not only made a substantive change by adding a new class of petitioners but change the rules and guidelines and failed to establish new rules and guidelines which would establish the procedures and method that could be utilized by this new class of petitioners in filing a petitioner for attorney's fees and costs.

      
      

      NOTE: Rule is defined for purposes of the Administrative Procedure Act to include an agency statement of general or particular applicability and future effect . . . that implements law or policy. (Generally see Black's Law Sixth Edition)

      
      

      In the final order the Hearing Officer quotes Section 112- 322(10)FS and cites this as the Commission authority to make a substantive change. But, the Commission v Sullivan ruling, still applicable conflicts with this provision and under the law the Commission v Sullivan takes precedent. The Commission does not have a constitutional grant of authority to make substantive changes. Rule 34-5.029 only provides that a public officer can file a petition to request attorney's fees or cost and when the Commission added a new class of petitioners it was changing the rules and adding to those who were permitted under the rule to file such petition.

      
      

   3. The Hearing Officer erred in failing to note that the legal citations concerning Rule 39-5.029 were all Supreme Court decisions and concerned the 1st and 14th Amendment to the Constitution of the United States. These Supreme Court ruling are the law of the land and take precedent over all State Statutes and Rules promulgated by the State. In fact, under the 14th Amendment, laws promulgated by a State which impinge upon a Citizens constitutional rights is considered sedition.

      
      

   4. The Hearing Officer erred in failing to note that there are Federal laws which impose a greater restriction in administrative proceedings and that a Hearing Officer must determine the questions in light of the factual and legal issues presented and in light of the applicable principles of Federal law. It should be noted that these principles are applied in 60Q-2.008 which concerned the qualifications of a representative before a Hearing Officer. Then how much more important it is when a Hearing Officer is reviewing the applicable laws involved in any proceeding. State Statute do not take precedent over Federal law or the Constitution of the United States. Under the rules the Commission has a legal duty to notify the Legislative Body of the State of Florida whenever a rule promulgated in facts violates a Federal Law or the Constitution of the United States. There are many Supreme Court decisions throwing out State Statutes because they violate Federal Law.

   5. The Hearing Officer erred by quoting and utilizing rules and procedures which were not in effect at the time the initial hearing involving Feren vs Colon was decided.

JURISDICTION

The Division of Administrative Hearings has jurisdiction over the parties and subject matter. Citing 60Q-1.001.

THEREFORE, the Petitioner BILL COLON, respectfully request that the Hearing Officer revisit the Final Order and issue an amended order which will reflect the issues cited in this motion.

NOTE: The Hearing Officer cites court rulings which were announced in 1977, 1979, 1980 and 1982. Chapter 60Q-1 was revised on 10/92 and therefore the cases cited were known to those who promulgated Chapter 60Q-1. The Division of Administrative Hearings may take official recognition of

any matters which may be judicially noticed by the courts of this state. Therefore, the Hearing Officer had a duty to take Judicial notice of the Supreme Court rulings which effect the final decision in this matter. (Citing 60Q-2.020)

SUBMITTED BY THE PETITIONER BILL COLON Pro Se

11640 NW 30 Place

Sunrise, Florida 33323

By:

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was mailed to Phil Claypool, General Counsel Ethics Commission POD 15709, Tallahassee, Florida 32317

4 April 1994

By: Bill Colon Esq

================================================================= ORDER DENYING MOTION FOR CORRECTED ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BILL COLON, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0002RX

)

ETHICS COMMISSION, )

)

Respondent. )

)

ORDER DENYING MOTION FOR CORRECTED ORDER

Petitioner, Bill Colon, filed a Motion for Corrected Order, citing Rule 60Q-2.032, Florida Administrative Code, which provides for the filing of a motion to correct any clerical mistake or error arising from oversight or

omission. Petitioner is not seeking to correct clerical mistakes but is seeking to change the substantive finding of the Hearing Officer. Accordingly, it is ORDERED that the Motion for Corrected Order is DENIED.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of May 1994.

SUSAN B. KIRKLAND

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 4th day of May 1994.

COPIES FURNISHED:

Bill Colon

11640 N.W. 30th Place Sunrise, Florida 33323

Peter D. Ostreich Staff Attorney

Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709

Docket for Case No: 94-000002RX

Orders for Case No: 94-000002RX