STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESTERO FIRE PROTECTION AND ) RESCUE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2752RX

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

Final hearing was held on July 11, 1996, in Ft. Myers, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Frank X. Kowalski, Jr.

Paulich, Slack and Wolff, P.A. 2150 Goodlette Road

Naples, Florida 33940

For Respondent: Amy M. Jones, Senior Attorney

Susan M. Scott, Senior Attorney Environmental Health Office Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUE

The issue is whether Rule 10D-4.024(21), Florida Administrative Code, is an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

By Petition dated June 3, 1996, Petitioner alleged that it is a special taxing district providing residents of the Estero area with fire protection and rescue services. The Petition alleges that Respondent advised Petitioner that it must apply for a permit to operate as a limited use community public water system under Section 381.0062(3), Florida Statutes. The Petition alleges that Petitioner operates as such a system due to the definition of a "rental residence" in Rule 10D-4.024(21).

At the hearing, Petitioner called two witnesses and offered into evidence one exhibit, which was admitted. Respondent called one witness and offered into evidence no exhibits.

Neither party order a transcript. Rulings on proposed findings are in the appendix.

FINDINGS OF FACT

1. Petitioner is a special taxing district providing fire protection and rescue services to the residents of the Estero area of Lee County. The fire station is located at 20241 Tamiami Trail, Estero, Florida.

   
   

2. Petitioner employs 14 employees, including administrative staff and firefighters. The firefighters work 24 hours straight and then are off-duty for

   48 hours. Two to four employees work each shift.

   
   

3. Firefighting requires a fast response. Thus, Petitioner requires that on-duty firefighters remain at the station for their entire 24-hour shift, unless they are out fighting fires or performing rescue duties.

   
   

4. The fire station contains an 8' x 13' bedroom with six mattresses located on three bunk beds. On-duty firefighters are allowed to bring pillows and sheets so they can sleep at the station while on duty. There are no dressers in the room, which contains small lockers that the firefighters may use to store a change of clothes.

   
   

5. Petitioner provides kitchen facilities at the fire station and well water. The well water is used for washing equipment, taking showers, and flushing the toilet. The well water is not used for any other purposes, nor is it used by any other persons. Petitioner provides bottled water for drinking and cooking.

   
   

6. All of the firefighters have residences apart from the fire station and within a reasonable commuting distance from the fire station. No firefighter has ever lived at the station.

   
   

7. Petitioner does not charge, or reduce the pay of, the firefighters for their use of the limited sleeping facilities. Petitioner lawfully does not treat the use of the limited sleeping facilities by firefighters as gross income for the purposes of withholding federal income tax or making social security contributions.

   
   

8. By letter dated July 18, 1995, Respondent informed Petitioner that the fire station's water system is a limited use community water system because the sleeping facilities constituted rental residences, as defined by Rule 10D- 4.024(21), Florida Administrative Code. Respondent advised Petitioner that it was therefore required to obtain a permit.

   
   

9. As noted in the following section, the statute authorizes Respondent to regulate as limited use community public water systems those systems serving a certain number of "rental residences." The statute does not define "rental residence."

   
   

10. In Rule 10D-4.024(21), Respondent defines a "rental residence" as follows:

    
    

    a dwelling unit, a structure or part of a structure that is rented for use, or furnished with or without rent as an incident of employ-

    ment, for use as a home, residence, sleeping place by one or more persons, a mobile home rented by a tenant. This term does not apply to facilities offering transient residency such as public lodging establishments. This term includes other facilities where residency or detention is incidental to the provision of medical, geriatric, educational, counseling, religious, or similar services.

    
    

11. Respondent equated a "rental residence" with a "dwelling unit" when it based its definition of "rental residence" on the statutory definition of "dwelling unit" in Chapter 83, Part II, Florida Statutes, which is the Florida Residential Landlord and Tenant Act.

    
    

12. A "dwelling unit" is a "residence." The American Heritage dictionary defines a "dwelling" as "a place to live in; residence; abode." Similarly, the same dictionary's first definition of "residence" is "the place in which one lives; a dwelling; an abode."

    
    

13. But the statutory definition qualifies "residential" with "rental." The word "rental" requires consideration of the nature of the relationship of the occupant to the dwelling and its owner.

    
    

14. Obviously, the Florida Residential Landlord and Tenant Act addresses rental transactions, but it does not do so in the definition of "dwelling unit." Other provisions of the Act describe the kind of activity that must take place for a person to be considered a tenant renting a dwelling unit. Most importantly, Section 83.43(6) defines "rent" as "periodic payments due the landlord from the tenant for occupancy under a rental agreement "

    
    

15. The facts of this case present a revealing illustration of the distinction between a "residence" or "dwelling unit," on the one hand, and a "rental residence," on the other hand. There is no rental relationship between the occupants of the sleeping quarters at the fire station and the residence or dwelling itself. The firefighters do not pay, directly or indirectly, for these beds or the rooms in which the beds are located. Their employer legitimately does not include the value of the use of these sleeping quarters in the compensation paid to the firefighters. The firefighters have residences within commuting distance of the fire station and use the meager sleeping quarters and kitchen facilities only because they are required to spend long hours continuously at the fire station.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter. Sections 120.56(5) and 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

    
    

17. Section 120.56(1) authorizes any person substantially affected by a rule to challenge the rule as an "invalid exercise of delegated legislative authority." Petitioner is substantially affected by Rule 10D-4.024(21).

18. Section 120.52(8) provides that an "invalid exercise of delegated legislative authority" includes a rule that "enlarges . . . the specific provisions of law implemented . . .." Section 120.56(3) authorizes the hearing officer to find all or part of a rule invalid.

    
    

19. Section 381.0062 provides that the Legislature intends "to protect the public's health by requiring permits or establishing standards for limited use community and limited use commercial public water systems . . ..

    
    

20. Section 381.0062(2)(f) defines a "limited use community public water system" as a "public water system not covered or included in the Florida Safe Drinking Water Act, which serves five or more private residences or two or more rental residences, and provides piped potable water."

    
    

21. The relevant statutes do not define "rental residences." Respondent adopted Rule 10D-4.024(21) to define the statutory term by drawing on the following statutory definition of "dwelling unit" found in Section 83.43(2):

    
    

    1. A structure or part of a structure that is rented for use as a home, residence, or sleeping place by one person or by two or more persons who maintain a common household.

    2. A mobile home rented by a tenant.

    3. A structure or part of a structure that

       is furnished, with or without rent, as an incident of employment for use as a home, residence, or sleeping place by one or more persons.

       
       

22. The sleeping and kitchen facilities at the fire station do not constitute rental residences for the firefighters sleeping and eating at the fire station. Parts of Rule 10D-4.024(21) represent a clearly erroneous interpretation of the statutory term, "rental residences." Respondent's interpretation of this statutory term is not within the range of possible interpretations.

    
    

23. However, part of the rule is not invalid because it links the concepts of "rental" and "residence." Referring to Section 83.43(2) as a guide through the grammatical thicket of Rule 10D-4.024(21), it is possible to identify the parts of the rule that fail to link "rental" and "residence."

    
    

24. The invalid portions of the rule are stricken* through in the following paragraph:

    
    

    [[a dwelling unit,]] a structure or part of a structure that is rented for use, [[or furnished with or without rent as an incident of employ- ment, for use]] as a home, residence, sleeping place by one or more persons, a mobile home rented by a tenant. . . .

    
    

    * Note: Text within the brackets [[ ]] indicates stricken through portions of the rule.

    
    

25. Invalidating this part of the rule does not mean that Respondent is precluded from applying the valid part of the rule to situations in which there is deemed, imputed, or constructive rent, such as where a migrant worker

    effectively pays rent to his employer or a third party through reduced pay or pay deductions.

    
    

26. But the underlying statute does not authorize a rule that fails to link in some manner the use of a residence with the payment of rent, even if through the receipt of reduced compensation. In the present case, the use of the "residence," though tied to employment, is not linked to rent because the firefighters are not charged for the use of the facilities and do not receive imputed compensation in the right (or requirement) to use the facilities.

ORDER

It is

ORDERED that the part of Rule 10D-4.024(21) stricken through in Paragraph

24 of this Final Order is an invalid exercise of delegated legislative authority.

ENTERED on August 14, 1996, in Tallahassee, Florida.

ROBERT E. MEALE

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 14th day of August, 1996.

APPENDIX

Rulings on Petitioner's Proposed Findings

1-11: adopted or adopted in substance. 12-16: rejected as irrelevant.

17: adopted.

18-19: rejected as legal argument. 20: adopted or adopted in substance.

Rulings on Respondent's Proposed Findings

1-8: adopted or adopted in substance. 9-11: rejected as irrelevant.

12-13: rejected as subordinate. 14: adopted.

15-16 rejected as subordinate. 17: rejected as irrelevant.

18-24: adopted or adopted in substance. 25: rejected as irrelevant.

COPIES FURNISHED:

Frank X. Kowalski, Jr. Paulich, Slack and Wolff, P.A. 2150 Goodlette Road

Naples, Florida 33940

Amy M. Jones, Senior Attorney Susan M. Scott, Senior Attorney Environmental Health Office Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Elliott Building Tallahassee, Florida 32399-0250

Richard Doran, General Counsel Department of Health and

Rehabilitative Services

1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services 1317 Winewood Boulevard Building 2, Room 204-X

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO APPEAL

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 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: 96-002752RX

Orders for Case No: 96-002752RX