STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIRIAM OLIPHANT, )
)
Petitioner, )
)
vs. ) Case No. 06-2886RX
) FLORIDA ELECTIONS COMMISSION, )
)
Respondent. )
)
SUMMARY FINAL ORDER
Pursuant to the request of the parties, the instant case has been decided summarily, without an evidentiary hearing, there being no disputed issues of material fact.
APPEARANCES
For Petitioner: Mark Herron, Esquire
E. Gary Early, Esquire
Messer, Caparello, & Self, P.A.
215 South Monroe Street, Suite 701 Tallahassee, Florida 32308
Henry C. Hunter, Esquire
219 East Virginia Street Tallahassee, Florida 32301
For Respondent: Edward A. Tellechea, Esquire
Claudel Pressa, Esquire Department of Legal Affairs The Capitol, Plaza Level 01
Tallahassee, Florida 32399-1050
STATEMENT OF THE ISSUE
Whether Florida Administrative Code Rule 2B-1.002 is an "invalid exercise of delegated legislative authority," as alleged by Petitioner.
PRELIMINARY STATEMENT
On August 11, 2006, Petitioner filed a petition with the Division of Administrative Hearings (DOAH) requesting that Respondent's "proposed [Florida Administrative Code] Rule 2B-
be declared to be an invalid exercise of delegated legislative authority." By order issued August 14, 2006, DOAH's Chief Judge determined that the petition was in compliance with the applicable requirements of Section 120.56, Florida Statutes,1 and he assigned the case to the undersigned.
On August 15, 2006, the parties filed a motion jointly requesting that the matter be held in abeyance for 15 days "to allow for filing of the [challenged] rule with the Secretary of State [for adoption]." The motion was granted by order issued August 16, 2006.
On August 24, 2006, Petitioner filed an unopposed Motion to Amend Petition to Determine Invalidity of Existing Rule.
Accompanying the motion was an Amended Petition to Determine Invalidity of Existing Rule (Amended Petition) alleging that that Florida Administrative Code Rule 2B-1.0022 is an "invalid exercise of delegated legislative authority" because it "exceeds
[Respondent's] grant of rulemaking authority"; because it "enlarges, modifies, or contravenes the specific provisions of the law implemented"; and because it "is arbitrary and capricious, and is not supported by competent substantial evidence." In her Amended Petition, in addition to asking that Florida Administrative Code Rule 2B-1.002 be declared invalid, Petitioner further requested that she "be awarded reasonable costs and attorney's fees pursuant to Section 120.595(3), Florida Statutes." An Order Granting Motion to Amend was issued on August 25, 2006.
On September 6, 2006, following a telephone conference call they had with the undersigned, the parties filed a Joint Stipulation of Hearing Schedule, which read as follows;
Petitioner, Miriam Oliphant, and Respondent, Florida Elections Commission, upon consultation with the Administrative Law Judge in this case, hereby stipulate to the following schedule for the conduct of this proceeding.
The parties agree that this case may be decided as a matter of law, and it is not necessary to introduce testimony or factual exhibits in support of either party's position. The parties shall file a Prehearing Stipulation of factual background information no later than the date of filing of their Proposed Final Orders.
The parties shall file Proposed Final Orders with the DOAH no later than September 25, 2006. Each party shall then have the opportunity to respond to the
other's PFO, with such response due no later than October 12, 2006.
The parties shall have an opportunity to present oral argument in support of their PFOs, with such argument set, subject to final approval by the ALJ, for October 19, 2006, at 9:30 a.m.
WHEREFORE, Petitioner, Miriam Oliphant, and Respondent, Florida Elections Commission, request that the ALJ enter an order establishing a hearing procedure and schedule consistent with the stipulations herein.
On September 1, 2006, the undersigned issued an order in which he accepted the parties' Joint Stipulation of Hearing Schedule and indicated that the instant matter would proceed in accordance therewith.
On September 21, 2006, Petitioner filed a Notice of Withdrawal of Issue, which read, in pertinent part, as follows:
Please accept this letter as notice of [Petitioner's] withdrawal of paragraph 14 of the Amended Petition filed in this case.[3] Thus, the only issues remaining for consideration in this proceeding will be a) whether the rule exceeds the FEC's grant of rulemaking authority, and b) whether the rule enlarges, modifies, or contravenes the specific provisions of the law implemented.
The parties filed their Proposed Final Orders on September 25, 2006, and their responsive submittals on October 12, 2006.
Oral argument was heard by telephone conference call on October 19, 2006. During the telephone conference call, the
parties entered into a "[s]tipulation of factual background information."
STIPULATED FACTS
The following are the facts set forth in the parties' "[s]tipulation of factual background information:"
Petitioner, Miriam Oliphant, is the subject of a complaint filed with [Respondent] wherein it is alleged that she committed multiple willful violations of Section 104.051(2), Florida Statutes (2002) in September of 2002.
These allegations were initially heard by Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings in January of 2005 and a recommended order was issued on August 29, 2005. In his recommended order the ALJ used the definition of the term "willful violation" as it appears in Section 106.37, Florida Statutes (2002) when making his determination that Ms. Oliphant had willfully violated Section 104.051(2).
The recommended order was considered by [Respondent] on November 18, 2005 and it too found that Ms. Oliphant had willfully violated Section 104.051(2).
However, prior to the issuance of the final order, the First District Court of Appeal issued its opinion in the matter of John J. Fugate v. Florida Elections Commission, 924 So. 2d 74 (Fla. 1st DCA 2006) wherein it found that the definition of the term "willful violation" as it appears in Section 106.37, Florida Statutes (2002) was not applicable to violations of provisions of Chapter 104. As a result thereof, on May 18, 2006, [Respondent] reconsidered its prior findings and remanded the Oliphant matter to DOAH with a request
that in light of the Fugate opinion the ALJ make new findings as to whether Ms. Oliphant willfully violated Section 104.051(2).
On May 19, 2006, [Respondent] commenced rulemaking and approved rule language that is now the subject of this rule challenge. Rule 2B-1.002, of Florida Administrative Code became effective on September 11, 2006.
For purposes of this proceeding, the parties stipulate that Petitioner is subject to the rule, and is therefore substantially affected.[4]
CONCLUSIONS OF LAW
Petitioner is challenging Florida Administrative Code Rule 2B-1.002 pursuant to Section 120.56, Florida Statutes, which allows substantially affected persons to challenge a rule's facial validity. See Fairfield Communities v. Florida Land and Water Adjudicatory Commission, 522 So. 2d 1012, 1014 (Fla. 1st DCA 1988)("At the outset, we note that we are being asked [in this appeal of a final order in a DOAH rule challenge proceeding] to determine the facial validity of these two rules [being challenged], not to determine their validity as applied to specific facts, or whether the agency has placed an erroneous construction on them."); and Advantage Therapy and Nursing Center (Beverly Health and Rehabilitative Services, Inc.) v. Agency for Health Care Administration, No. 97-1625RX, 1997 Fla. Div. Adm. Hear. LEXIS 5550 *17 (Fla. DOAH July 29, 1997)(Final Order)("Additionally, in a rule challenge, the issue to be
determined is whether the rule, either proposed or adopted, is valid on its face.").
Subsections (1) and (3) of Section 120.56, Florida Statutes, provide as follows:
GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A RULE OR A PROPOSED RULE.--
Any person substantially affected by a rule or a proposed 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.
The petition seeking an administrative determination must state with particularity the provisions alleged to be invalid with sufficient explanation of the facts or grounds for the alleged invalidity and facts sufficient to show that the person challenging a rule is substantially affected by it, or that the person challenging a proposed rule would be substantially affected by it.
The petition shall be filed with the division [DOAH] which shall, immediately upon filing, forward copies to the agency whose rule is challenged, the Department of State, and the committee. Within 10 days after receiving the petition, the division director shall, if the petition complies with the requirements of paragraph (b), assign an administrative law judge who shall conduct a hearing within 30 days thereafter, unless the petition is withdrawn or a continuance is granted by agreement of the parties or for good cause shown. Evidence of good cause includes, but is not limited to, written notice of an agency's decision to modify or withdraw the proposed rule or a written notice from the chair of the committee stating that the committee will
consider an objection to the rule at its next scheduled meeting. The failure of an agency to follow the applicable rulemaking procedures or requirements set forth in this chapter shall be presumed to be material; however, the agency may rebut this presumption by showing that the substantial interests of the petitioner and the fairness of the proceedings have not been impaired.
Within 30 days after the hearing, the administrative law judge shall render a decision and state the reasons therefor in writing. The division shall forthwith transmit copies of the administrative law judge's decision to the agency, the Department of State, and the committee.
Hearings held under this section shall be de novo in nature. The standard of proof shall be the preponderance of the evidence. Hearings shall be conducted in the same manner as provided by ss. 120.569 and 120.57, except that the administrative law judge's order shall be final agency action. The petitioner and the agency whose rule is challenged shall be adverse parties. Other substantially affected persons may join the proceedings as intervenors on appropriate terms which shall not unduly delay the proceedings. Failure to proceed under this section shall not constitute failure to exhaust administrative remedies.
* * *
CHALLENGING EXISTING RULES; SPECIAL PROVISIONS.--
A substantially affected person may seek an administrative determination of the invalidity of an existing rule at any time during the existence of the rule. The petitioner has a burden of proving by a preponderance of the evidence that the existing rule is an invalid exercise of
delegated legislative authority as to the objections raised.
The administrative law judge may declare all or part of a rule invalid. The rule or part thereof declared invalid shall become void when the time for filing an appeal expires. The agency whose rule has been declared invalid in whole or part shall give notice of the decision in the Florida Administrative Weekly in the first available issue after the rule has become void.
An existing rule may be challenged pursuant to Section 120.56, Florida Statutes, only on the ground that it is an "invalid exercise of delegated legislative authority." An administrative law judge is without authority to declare a existing rule invalid on any other basis. To do so would be an impermissible extension of the administrative law judge's authority beyond the boundaries established by the Legislature. See Schiffman v. Department of Professional Regulation, Board of
Pharmacy, 581 So. 2d 1375, 1379 (Fla. 1st DCA 1991) ("An administrative agency has only the authority that the legislature has conferred it by statute."); Lewis Oil Co., Inc. v. Alachua County, 496 So. 2d 184, 189 (Fla. 1st DCA 1986)("Administrative agencies have only the powers delegated by statute."); and Fiat Motors of North America, Inc. v. Calvin,
356 So. 2d 908, 909 (Fla. 1st DCA 1978)("Administrative agencies are creatures of statute and have only such powers as statutes confer."). For example, an administrative law judge may not
invalidate an existing rule simply because, in the judge's opinion, it does not represent the wisest or best policy choice. See Board of Trustees of Internal Improvement Trust Fund v.
Levy, 656 So. 2d 1359, 1364 (Fla. 1st DCA 1995)("The issue before the hearing officer in this [rule challenge] case was not whether the Trustees made the best choice in limiting the lengths of docks within the preserve, or whether their choice is one that the appellee finds desirable for his particular location.").
As the First District Court of Appeal observed in Southwest Florida Water Management District v. Save the Manatee Club, Inc., 773 So. 2d 594, 597-98 (Fla. 1st DCA 2000):
This phrase ["invalid exercise of delegated legislative authority," as used in Section 120.56, Florida Statutes] is defined in section 120.52(8), Florida Statutes, as an "action that goes beyond the powers, functions, and duties delegated by the Legislature." Section 120.52(8) then lists seven circumstances in which a rule is an invalid exercise of delegated legislative authority:
* * *
In addition to the seven enumerated grounds for challenging a rule, section 120.52(8) provides a set of general standards to be used in determining the validity of a rule in all cases. These standards are contained in the closing paragraph of the
statute. . . .
In the instant case, Petitioner contends that Florida Administrative Code Rule 2B-1.002 is an "invalid exercise of delegated legislative authority," within the meaning of Subsections (8)(b) and (c) of Section 120.52, Florida Statutes, which provide as follows:
"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 of the following applies:
* * *
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;[5]
Subsections (8)(b) and (c) of Section 120.52, Florida Statutes, although they are "interrelated," "address two different problems" or "issues." Board of Trustees of Internal Improvement Trust Fund v. Day Cruise Association, Inc., 794 So. 2d 696, 701 (Fla. 1st DCA 2001); and St. Johns River Water Management District v. Consolidated Tomoka Land Co., 717 So. 2d 72, 81 (Fla. 1st DCA 1998). Subsection (8)(b) "pertains to the adequacy of the grant of rulemaking authority," including any statutory qualifications upon the exercise of such authority.
Day Cruise Association, 794 So. 2d at 701; Department of Business and Professional Regulation v. Calder Race Course,
Inc., 724 So. 2d 100, 104 (Fla. 1st DCA 1998); and Consolidated Tomoka Land Co., 717 So. 2d at 81. "Under section 120.52(8)(c), the test is whether a . . . rule gives effect to a 'specific law to be implemented,' and whether the . . . rule implements or interprets 'specific powers and duties.'" Day Cruise Association, 794 So. 2d at 704.
Subsections (8)(b) and (c) of Section 120.52, Florida Statutes, must be read in pari materia with the "closing paragraph of the statute," which is known as the "flush left paragraph"6 and provides as follows:
A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the same statute.[7]
The evolution of the "flush left paragraph," which was last amended in 1999, was discussed in Day Cruise Association, 794 So. 2d at 698-700:
Recent amendments to the APA have tightened and clarified rulemaking restrictions. In 1996, the Legislature enacted the following:
"A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement, interpret, or make specific the particular powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than the particular powers and duties conferred by the same statute."
Ch. 96-159, § 3, at 152, Laws of Fla. (codified at § 120.52(8), Fla. Stat. (Supp. 1996)). The precise effect of this then new statutory language was at least originally a matter of some debate. We considered the import of the 1996 amendments in St. Johns River Water Mgmt. Dist. v. Consolidated- Tomoka Land Co., 717 So. 2d 72, 80 (Fla. 1st DCA 1998)(interpreting "particular" as requiring only that a (proposed) rule be "within the range of powers" statutorily granted to the agency, and deeming (proposed) rules valid if "within the class of powers and duties identified in the statute to be implemented"), rev. denied, 727 So. 2d 904 (Fla. 1999). But see Dep't of Bus. & Prof'l Regulation v. Calder Race
Course, Inc., 724 So. 2d 100, 102 (Fla. 1st DCA 1998)(applying the 1996 amendments in invalidating as beyond the scope of the enabling statute an agency rule that would have allowed warrantless searches at a pari- mutuel facility); St. Petersburg Kennel Club v. Dep't of Bus. & Prof'l Regulation, 719 So. 2d 1210, 1211 (Fla. 2d DCA
1998)(applying the 1996 amendments in invalidating rules defining poker because the enabling statute did not specifically authorize them).
In apparent response to the decision in Consolidated-Tomoka, the Legislature again amended section 120.52(8) in 1999, stating its intent "to clarify the limited authority of agencies to adopt rules in accordance with chapter 96-159, Laws of Florida,
and . . . to reject the class of powers and duties analysis." Ch. 99 379, § 1, at 3789, Laws of Fla. The legislative history of the 1999 amendments reflects a legislative intent that the standard for agency rulemaking be more restrictive than the standard explicated in what the Legislature deemed inappropriately broad judicial interpretations of the 1996 amendments to the APA, expressly including Consolidated- Tomoka:
"[The bill] rejects a judicial interpretation of this standard which created a functional test to determine whether a challenged agency rule is directly within the class of powers and duties identified in the statute to be implemented." [specifically citing Consolidated-Tomoka]
Fla. H.R. Comm. on Govtl. Rules & Regs., CS/HB 107 (1999)(ch. 99-379, Laws of Fla.)
Final Staff Analysis 5 (June 30, 1999); see also Kent Wetherell, Sour Grapes Make Sweet Wine, Fla. Bar Environ. and Land Use Law Section, Section Reporter, (Dec. 1999)
<http://www.eluls.org/dec1999--
wetherell.html> ("Consolidated-Tomoka . . . did not survive the legislative session following its rendition as it was effectively overruled[8] by legislation adopted in the 1999 Session. . . . The 1999 legislation explicitly rejects the 'class of powers and duties' test created by the court in Consolidated-Tomoka. . . ."). "[T]he Legislature has rejected the standard we adopted in Consolidated-Tomoka." Southwest Florida Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So. 2d 594, 599 (Fla. 1st DCA 2000).
Implementing this legislative intent to cabin agency rulemaking authority, the 1999 Legislature amended the "flush left" paragraph of section 120.52(8) and parallel language in section 120.536(1), by replacing the phrase "particular powers and duties" with the phrase "specific powers and duties," and by expressly rejecting the judicial "class of powers and duties"
gloss . . . .
The court went on to state that, "[u]nder the 1996 and 1999 amendments to the APA, it is now clear, agencies have rulemaking authority only where the Legislature has enacted a specific statute, and authorized the agency to implement it, and then only if the . . . rule implements or interprets specific powers or duties, as opposed to improvising in an area that can be said to fall only generally within some class of powers or duties the Legislature has conferred on the agency." Id. at 700. Finding that the proposed rule at issue "would not implement specific enabling legislation (or any specific constitutional power or duty) as contemplated by section 120.52(8)(c)," the court
affirmed the invalidation of the challenged proposed rule. Id. at 704. On Motion for Clarification, Rehearing, Certification, or Rehearing En Banc, the court rejected the Trustees' argument that the court's decision conflicted with Save the Manatee Club, 773 So. 2d at 598, and it reiterated the following statement it had made in Save the Manatee Club:
The question is whether the statute contains a specific grant of legislative authority for the rule, not whether the grant of authority is specific enough. Either the enabling statute authorizes the rule at issue or it does not. . . . [T]his question is one that must be determined on a case-by- case basis.
Board of Trustees of Internal Improvement Trust Fund v. Day Cruise Association, Inc., 798 So. 2d 847 (Fla. 1st DCA 2001). Subsequently, in Board of Medicine v. Florida Academy of Cosmetic Surgery, Inc., 808 So. 2d 243, 253 (Fla. 1st DCA 2002), the First District Court of Appeal again quoted language it had used in Save the Manatee Club:
"[T]he authority to adopt an administrative rule must be based on an explicit power or duty identified in the enabling statute.
Otherwise, the rule is not a valid exercise of delegated legislative authority." Southwest Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So. 2d 594, 599 (Fla. 1st DCA 2000). Moreover, "the authority for an administrative rule is not a matter of degree. The question is whether the statute contains a specific grant of legislative authority for the rule, not whether the grant of authority is specific enough." Id. (emphasis in original).
See also Hennessey v. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, 818 So. 2d 697, 701 (Fla. 1st DCA 2002), a more recent opinion concerning the scope of agency rulemaking authority, wherein the First District Court of Appeal once again repeated language it had used in Save the Manatee Club:
[S]ubsequent to the amendment [in 1999 of Section 120.52(8), Florida Statutes], an agency can only adopt rules which implement or interpret specific powers and duties granted by the enabling statute:
"[I]t is clear that the authority to adopt an administrative rule must be based on an explicit power or duty identified in the enabling statute. Otherwise the rule is not a valid exercise of delegated legislative authority."
Id. at 599. In Save the Manatee, we expressly found that in reviewing for the specific authority for a rule, the issue is not whether the grant of authority is "specific enough," but whether the enabling statute grants legislative authority for the rule at issue . . . ;
and Frandsen v. Department of Environmental Protection, 829 So. 2d 267, 269 (Fla. 1st DCA 2002), a more recent case, in which the First District Court of Appeal reiterated that "[t]he question is whether the statute contains a specific grant of legislative authority for the rule, not whether the grant of authority is specific enough."
Having "[c]onsider[ed] Section 120.52(8), Florida Statutes, in conjunction with the trilogy of [Save the] Manatee
Club, Day Cruise, and Cosmetic Surgery," Administrative Law Judge John G. Van Laningham, in his Final Order in Food Safety Training, Inc. v. Department of Business and Professional Regulation, Division of Hotels and Restaurants, No. 01-3753RP, 2002 Fla. Div. Adm. Hear. LEXIS 209 *26-28 (Fla. DOAH
February 14, 2002), "articulate[d] [the following appropriate] analytical framework for resolving questions regarding rulemaking authority" in a rule challenge case:
The threshold question, of course, is whether the agency has been delegated the power to make rules. That issue will rarely be disputed since most agencies have been granted general rulemaking powers.[9] As both Manatee Club and Day Cruise make clear, however, if the agency has been empowered or directed specifically to make particular rules or kinds of rules, it will be necessary, in defining the specific powers or duties delegated to the agency, to pay close attention to any pertinent restrictions or limitations on the agency’s rulemaking authority.
After it has been determined that the agency has the necessary grant of rulemaking authority, the next question is: What is the specific power or specific duty that the agency claims to have implemented or interpreted through the challenged rule? Logically, one needs to know what to look for before searching the enabling statute for the requisite grant. Ordinarily, it will be possible to derive the specific power or duty claimed from studying the language of the challenged rule. However,
it must be recognized that the framing of the power or duty is potentially outcome- determinative. . . . In defining the power or duty, one must be careful to avoid begging the question.
The next analytical step is to examine the enabling statute to determine whether the specific power or duty claimed by the agency is among the specific powers or duties delegated by the legislature. As Cosmetic Surgery demonstrates, this step may involve statutory interpretation. In addition, it is here that any qualifications or limitations on the agency’s rulemaking power must be taken into account. If the enabling statute, properly interpreted, either does not contain the specific power or duty claimed, or contains limitations or qualifications that are incompatible with the existing or proposed rule, then the rule is invalid.[10]
If, on the other hand, the specific power or duty claimed has indeed been granted to the agency, then the last question is whether the rule at issue implements or interprets such power or duty. Where the power or duty claimed was defined by derivation from the rule, the conclusion here will probably be foregone. This step, however, cannot be overlooked, for a rule, to be valid, must implement or interpret the specific powers granted.
In applying this "analytical framework," as Judge Van Laningham suggested, it is necessary for the administrative law judge to attempt to understand the meaning of the statutory provisions relied upon by the agency (as "rulemaking authority" and the "law implemented"). If these statutory provisions are among those the agency is specifically responsible for
administering, the agency's construction of these provisions (as incorporated in the rule) "should be upheld when it is within the range of permissible interpretations." Board of Podiatric Medicine v. Florida Medical Association, 779 So. 2d 658, 660 (Fla. 1st DCA 2001); see also Gulfstream Park Racing Association v. Tampa Bay Downs, No. SC05-251, 2006 Fla. LEXIS 2207 *11 (Fla. 2006)("As the federal district court correctly reasoned, '[i]n Florida, courts give great deference to the interpretation of a statute by an administrative agency charged with the statute's enforcement.'"). The agency's construction need not be the sole possible construction, or even the most desirable one, but must only be within the range of possible and reasonable constructions. See Cagle v. St. Johns County School District, No. 5D05-1380, 2006 Fla. App. LEXIS 14626 *9 (Fla. 5th DCA
September 1, 2006); Florida Department of Education v. Cooper, 858 So. 2d 394, 396 (Fla. 1st DCA 2003); Republic Media v.
Department of Transportation, 714 So. 2d 1203, 1205 (Fla. 5th DCA 1998); Orange Park Kennel Club, Inc., v. Department of
Business and Professional Regulation, 644 So. 2d 574, 576 (Fla. 1st DCA 1994); Florida League of Cities v. Department of Environmental Regulation, 603 So. 2d 1363, 1369 (Fla. 1st DCA 1992); Levy, 656 So. 2d at 1363; Escambia County v. Trans Pac,
584 So. 2d 603, 605 (Fla. 1st DCA 1991); and Department of
Professional Regulation v. Durrani, 455 So. 2d 515, 517 (Fla. 1st DCA 1984).11
"Legislative intent is the 'polestar' in interpretation of statutory provisions." Blinn v. Florida Department of Transportation, 781 So. 2d 1103, 1107 (Fla. 1st DCA 2000). Accordingly, an agency's construction of a statute that is contrary to the plain legislative intent is not entitled to any deference and must be rejected.
"Legislative intent must be derived primarily from the words expressed in the statute. If the language of the statute is clear and unambiguous," these words must be given effect. Florida Department of Revenue v. Florida Municipal Power Agency, 789 So. 2d 320, 323 (Fla. 2001). In attempting to ascertain the meaning of statutory language (and thereby legislative intent), the entire statute, along with related provisions, must be examined. See Woodham v. Blue Cross and Blue Shield of Florida, Inc., 829 So. 2d 891, 899 (Fla. 2002); Florida Jai Alai, Inc., v. Lake Howell Water and Reclamation District, 274 So. 2d 522,
524 (Fla. 1973); Barrington v. State, 199 So. 320 (Fla. 1941; Grant v. State, 832 So. 2d 770, 773 (Fla. 5th DCA 2002); Fleischman v. Department of Professional Regulation, 441 So. 2d 1121, 1123 (Fla. 3d DCA 1983); and Weitzel v. State, 306 So. 2d 188, 192 (Fla. 1st DCA 1974).
Guidance in ascertaining the meaning of an undefined statutory term may be obtained by looking at definitions of the same term found elsewhere in Florida Statutes, notwithstanding that these definitions are not directly applicable. See Dufresne v. State, 826 So. 2d 272, 275 (Fla. 2002)("I]n cases where the exact meaning of a term was not defined in a statute itself, we have ascertained its meaning by reference to other statutory provisions . . . . Further, 'while the legislature may direct that statutes be read in pari materia, the absence of such a directive does not bar construing two statutes in that manner.'"); In re McCollam, 612 So. 2d 572, 574 (Fla. 1993)("Because the legislature did not define 'annuity contracts' in chapter 222, we look to other chapters of the Florida Statutes for guidance as to the meaning of the word."); State v. Hagan, 387 So. 2d 943, 945 (Fla. 1980)("In the absence of a statutory definition, resort may be had to . . .related statutory provisions which define the term . . . ."); Sullivan v. Department of Health, Board of Chiropractic Medicine, 885 So. 2d 873, 876 (Fla. 3rd DCA 2004)("The fact that Section 460.403(9) lacks a separate definition for the term 'legend drug' does not empower the Board to ignore the definitions set forth in other sections of the Florida Statutes. At the time the 1986 legislation was passed, the term 'legend drug' was employed in Chapter 465 and in the various professional
licensure statutes cited above and was explicitly defined in Chapter 499. The Legislature must be presumed to have been aware of these uses and definitions when it employed the term 'legend drug' in Chapter 86-285, Laws of Florida, and to have intended the Board to make reference to them in implementing the legislation."); and Krause v. Reno, 366 So. 2d 1244, 1252 (Fla. 3rd DCA 1979)("The Sunshine Law itself contains no definition of 'agency' or 'authority.' Therefore, this court may look to similar or analogous statutory provisions which give effect to the same public policy underlying the Sunshine Law or which also concern the processes of state and local government.").
The administrative law judge must not only construe the statutory provision(s) relied upon by the agency in adopting the rule provision under attack, but must also ascertain the meaning of the challenged rule provision(s) as well. In doing so, the administrative law judge is obligated to accept the agency's interpretation of its own rule12 unless the agency's interpretation is clearly erroneous or unreasonable, given the language contained in the rule. See Falk v. Beard, 614 So. 2d 1086, 1089 (Fla. 1993); Citizens of State of Florida v. Wilson,
568 So. 2d 1267, 1271 (Fla. 1990); and Miles v. Florida A and M University, 813 So. 2d 242, 245 (Fla. 1st DCA 2002).
The rule that is being challenged in this case, Florida Administrative Code Rule 2B-1.002, is the product of
rulemaking engaged in by Respondent, a state agency13 created by Section 106.24, Florida Statutes.
The Legislature, in Subsection (1) of Section 106.25, Florida Statutes, has granted Respondent "[j]urisdiction to investigate and determine violations of this chapter [Chapter 106] and [C]hapter 104," Florida Statutes, explaining, in Subsection (3) of the statute, that, "[f]or the purposes of [Respondent's] jurisdiction, a violation shall mean the willful performance of an act prohibited by this chapter [Chapter 106] or [C]hapter 104 or the willful failure to perform an act required by this chapter [Chapter 106] or [C]hapter 104."14 Respondent, however, in accordance with Subsection (2) of Section 106.25, may exercise its legislatively-granted jurisdiction over such "willful" violations "only after having received either a sworn complaint or information reported to it under this subsection by the Division of Elections."
Respondent has also been legislatively delegated the authority to adopt, in accordance with Chapter 120, Florida Statutes, rules pursuant to which it must "consider all sworn complaints filed with it and all matters reported to it by the Division of Elections." This legislative delegation of rulemaking authority is found in Subsection (1) of Section 106.26, Florida Statutes, which provides, in pertinent part, as follows:
[Respondent] shall, pursuant to rules adopted and published in accordance with chapter 120, consider all sworn complaints filed with it and all matters reported to it by the Division of Elections. . . .
Respondent must necessarily construe and interpret the language used in Subsection (3) of Section 106.25, Florida Statutes, including the term "willful," when it considers a sworn complaint or matter reported by the Division of Elections to determine whether there has been a violation of Chapter 104 and/or 106, Florida Statutes, of the type (described in Subsection (3)) over which it has jurisdictional authority. Cf.
National Cotton Oil Co. v. Texas, 197 U.S. 115, 131 (1905)("[T]he courts of the State are the tribunals appointed to administer the statutes and impose their penalties, and to do so they must necessarily interpret them.").
Chapter 106, Florida Statutes (which, as noted above, authorizes Respondent to exercise jurisdiction over "willful" violations of both that chapter and Chapter 104, Florida Statutes) contains (in Section 106.37, Florida Statutes) the following definition of "willful violations":
A person willfully violates a provision of this chapter if the person commits an act while knowing that, or showing reckless disregard for whether, the act is prohibited under this chapter, or does not commit an act while knowing that, or showing reckless disregard for whether, the act is required under this chapter. A person knows that an act is prohibited or required if the person
is aware of the provision of this chapter which prohibits or requires the act, understands the meaning of that provision, and performs the act that is prohibited or fails to perform the act that is required. A person shows reckless disregard for whether an act is prohibited or required under this chapter if the person wholly disregards the law without making any reasonable effort to determine whether the act would constitute a violation of this chapter.
In Fugate, 924 So. 2d at 75, 77, the case referenced in the parties' "[s]tipulation of factual background information," the First District Court of Appeal held that "the definition of 'willful' set forth in section 106.37 cannot, by its plain terms, be applied to alleged violations of any chapter other than 106" and that therefore Respondent's "application of section 106.37 to alleged violations of Chapter 104 [was] clearly erroneous." In so holding, the court stated:
[Respondent] may promulgate by rule a definition of "willful" to be applied to alleged violations of Chapter 104. However, deference is not due [Respondent's] election to apply section 106.37 to alleged violations of Chapter 104, because section
106.37 states six times, in plain terms, that section 106.37 applies only to violations of Chapter 106. Had the Legislature intended for section 106.37 to apply to alleged violations of Chapter 104, it could have plainly stated this intention. Accordingly, [Respondent] erred by rejecting the ALJ's correct conclusion that section 106.37, Florida Statutes (2003), is inapplicable to alleged violations of Chapter 104 and by applying the definition of "willful" set forth in 106.37 to
appellant's alleged violation of section 104.31(1)(a).
Id. at 76 (citations omitted). The court noted that the administrative law judge in the proceedings below, in finding a "non-willful" (rather than a "willful") violation of Section 104.31(1)(a), Florida Statutes, had "relied on Metropolitan Dade County v. Dep't of Envtl. Prot., 714 So. 2d 512, 516-17 (Fla. 3d DCA 1998), as well as the cases, treatises, and dictionaries cited therein, to define a willful act as one that is voluntarily and intentionally performed with specific intent and bad purpose to violate or disregard the requirements of the law," a definition the court found, "[i]n the absence of a statute or properly promulgated rule defining the term" otherwise, to be "reasonable." Id. at 75.
The Metropolitan Dade County case (which was relied upon by the administrative law judge in Fugate) contained the following discussion regarding the meaning of the term "willful violation," as used in Section 376.3078(3)(c), Florida Statutes:
Although the legislature did define "gross negligence" in section 376.3078(3)(c), it did not define "willful violation." In construing an undefined term, we must look to the common or usual meaning of the term. State Dept. of Administration v. Moore, 524 So. 2d 704 (Fla. 1st DCA 1988). The hearing officer relied on the definition of "willful violation" in Thunderbird Drive-In, and FDEP adopted this definition. The court in Thunderbird Drive-In, relied on W. Page Keeton, et al., Prosser & Keeton Handbook of
the Law of Torts § 34, at 213 (5th ed. 1984), in concluding that the usual meaning assigned to "willful" "is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow "
Thunderbird Drive-In, 571 So. 2d at 1344 (quoting Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193 (7th Cir. 1987)).
Thus, the Thunderbird Drive-In court concluded that when the legislature uses the word "willful" in a statute it demonstrates the legislature's intention that the actor possess "more than mere knowledge or awareness" for the statute to be applicable. Thunderbird Drive-In, 571 So. 2d at 1344.
Although the County derides FDEP's use of the Thunderbird Drive-In definition, appellees correctly observe that the County offers no alternative definition that it deems more appropriate. The Thunderbird Drive-In definition is not an unusual or extraordinary interpretation of the term "willful." Black's Law Dictionary defines "willful" as:
"An act or omission is 'willfully' done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law."
Black's Law Dictionary 1434 (5th ed. 1979)(same definition at 1599 (6th ed. 1990)). This definition mirrors the Thunderbird Drive-In definition.
Other courts have ascribed to a similar definition of "willful violation." In Hazen Paper Co. v. Biggins, 507 U.S. 604, 617, 123
L. Ed. 2d 338, 113 S. Ct. 1701 (1993), the
Supreme Court determined that a "willful" violation, as the term is used in federal
statutes, requires a showing that the actor "either knew or showed reckless disregard for the matter of whether its conduct was prohibited . . . ." This definition conveys the same idea that the act be intentional and accompanied by the "actor's intent and purpose that the prohibited conduct take place." Thunderbird Drive-In, 571 So. 2d at 1344. This definition has been applied to other statutory schemes. See McLaughlin v. Richland Shoe Co., 486 U.S. 128, 100 L. Ed.
2d 115, 108 S. Ct. 1677 (1988); Trans World
Airlines, Inc. v. Thurston, 469 U.S. 111, 83
L. Ed. 2d 523, 105 S. Ct. 613 (1985); United
States v. Baldwin, 770 F.2d 1550 (11th Cir. 1985), cert. denied, 475 U.S. 1120 (1986),
and state statutes, see Lewek v. State, 702 So. 2d 527 (Fla. 4th DCA 1997). We
therefore hold that FDEP did not err in applying this definition to the term "willful violation."
Metropolitan Dade County, 714 So. at 516-17.
Following the issuance of the First District Court of Appeal's opinion in Fugate, Respondent did what the court said (in dicta15) Respondent could do: "promulgate by rule a definition of 'willful' to be applied to alleged violations of Chapter 104," Florida Statutes. The rule Respondent promulgated, Florida Administrative Code Rule 2B-1.002, which is the subject of the instant rule challenge, provides as follows:
2B-1.002 Definitions.
For purposes of imposing a civil penalty for violating Chapter 104, F.S, the following definitions shall apply:
A person acts "willful" or "willfully" when he or she showed reckless disregard for
whether his or her conduct was prohibited or required by Chapter 104, F.S.
"Knew" means that the person was aware of a provision of Chapter 104, F.S., understood the meaning of the provision, and then performed an act prohibited by the provision or failed to perform an act required by the provision.
"Reckless disregard" means that the person disregarded the requirements of Chapter 104, F.S., or was plainly indifferent to its requirements, by failing to make any reasonable effort to determine whether his or her acts were prohibited by Chapter 104, F.S., or whether he or she failed to perform an act required by Chapter 104, F.S.
Respondent, as part of the rulemaking process, cited Section 106.26, Florida Statutes, as the "specific authority" for the rule and Subsection (3) of Section 106.25, Florida Statutes, as the "law implemented" by the rule.
In her challenge to Florida Administrative Code Rule 2B-1.002, Petitioner contends that the rule is an "invalid exercise of delegated legislative authority" because, in adopting the rule, Respondent "exceeded its grant of rulemaking authority" (as described in Subsection (8)(b) of Section 120.52, Florida Statutes) and further because the rule "enlarges, modifies, or contravenes the specific provisions of law implemented" (as described by Subsection (8)(c) of Section 120.52). This contention is unpersuasive.
Contrary to the position taken by Petitioner, the statutory provision cited by Respondent as the "specific authority" for Florida Administrative Code Rule 2B-1.002, Section 106.26, Florida Statutes (specifically Subsection (1) of the statute), is reasonably susceptible to the construction that it grants Respondent the authority to adopt a rule that describes (as does Florida Administrative Code Rule 2B-1.002) what constitutes a "willful" violation of Chapter 104, Florida Statutes, within the meaning of Subsection (3) of Section 106.25, Florida Statutes (which specifically empowers Respondent to exercise jurisdiction over such a violation). It is apparent, when Subsection (1) of Section 106.26 is read in pari materia with the other provisions of Chapter 106 detailing Respondent's powers and duties, that the "sworn complaints" and "matters" that Subsection (1) of Section 106.26 mandates Respondent "consider" "pursuant to rules adopted and published [by Respondent] in accordance with chapter 120" include those alleging violations of Chapter 104. Because the exercise of its duty to "consider" such "sworn complaints" and "matters" necessarily involves application of statutory language in Subsection (3) of Section 106.25, Florida Statutes, Respondent has the authority, pursuant to Subsection (1) of Section 106.26, to adopt a rule defining that statutory language, which it has done in adopting Florida Administrative Code Rule 2B-1.002.16
Respondent's defining this statutory language by rule is not only within the scope of the rulemaking authority granted it in Subsection (1) of Section 106.26, Florida Statutes, it is also consistent with the Legislature's "selection of rulemaking over adjudication as the primary means of policy development." Department of Highway Safety & Motor Vehicles v. Schluter, 705 So. 2d 81, 86 (Fla. 1st DCA 1997); see also Reiff v. Northeast Florida State Hospital, 710 So. 2d 1030, 1033 (Fla. 1st DCA 1998)("[R]ulemaking is the [legislatively] preferred means of issuing agency statements. . . ."). The Legislature has proclaimed that "[r]ulemaking is not a matter of agency discretion" and that "[e]ach agency statement defined as a rule by s. 120.52[17] shall be adopted by the rulemaking procedure provided by this section [Section 120.54, Florida Statutes] as soon as feasible and practicable." § 120.54(1)(a), Fla. Stat.18 Making rulemaking mandatory where it is "feasible and practicable" furthers what is "[p]erhaps the most important goal of rule adoption[:] fair notice to the public of the agency's [policy]." Florida Public Service Commission v. Central Corp.,
551 So. 2d 568, 572 (Fla. 1st DCA 1989)(Ervin, J., dissenting).
By exercising its rulemaking authority to define what constitutes a "willful" violation of Chapter 104, Florida Statutes, Respondent has "provide[d] fair notice to affected persons" of what definitional "standard" it will apply to
determine willfulness when it "considers" "sworn complaints" and "matters" involving alleged violations of Chapter 104, thereby "clos[ing] the gap between what [Respondent] and its staff know about [Respondent's] law and policy and what an outsider can know." Peoples Bank v. State, 395 So. 2d 521, 525 (Fla. 1981).
Petitioner contends that "[Respondent's] argument that it has the authority to define a term through its general authority to 'consider' complaints is similar to that struck down by the First DCA in Ortiz v. Department of Health, 882 So. 2d 402 (Fla. 4th DCA 2004)." Petitioner's reliance on Ortiz, however, is misplaced inasmuch as in that case, unlike in the instant case, "the section cited as the ground for rulemaking authority [was] specifically limited by another statute" and was interpreted by the agency "in such a way as to negate [the] restrictions on [its] rulemaking authority set out in [the other statute]." Petitioner seems to suggest that the Legislature, by defining in Section 106.37, Florida Statutes, what constitutes a "willful" violation of Chapter 106, Florida Statutes, has limited Respondent's rulemaking authority under Subsection (1) of Section 106.26, Florida Statutes, in such a way that it cannot be said to authorize the adoption of a rule defining what constitutes a "willful" violation of Chapter 104, Florida Statutes. The undersigned does not view Section 106.37 as having such a limiting effect on the rulemaking authority
delegated to Respondent pursuant to Subsection (1) of Section
106.26. Without question, the Legislature's enactment of Section 106.37 restricts Respondent's interpretative authority in that it leaves Respondent powerless to define, either through rulemaking or adjudication, a "willful" violation of Chapter 106 in a manner that is inconsistent with the definition of that term contained in Section 106.37. See Department of Revenue v. American Telephone & Telegraph Co., 431 So. 2d 1025, 1030 (Fla. 1st DCA 1983), citing Department of Health and Rehabilitative Services v. Florida Psychiatric Society, Inc., 382 So.2d 1280, 1285 (Fla. 1st DCA 1980)("[W]e note that '[a]dministrative regulations must be consistent with the statutes under which they are promulgated, and they may not amend, add to, or repeal the statute.' We will therefore not apply a rule which clearly is inconsistent with the statutory definition of affiliated groups."). It, however, does not have the effect of preventing Respondent from exercising its Section 106.26(1) rulemaking authority to adopt a rule that refines, fine-tunes, amplifies, or simply recites the definition of "willful" violation set forth in Section 106.37, nor, more importantly for purposes of the instant case, does it bar Respondent from using its Section 106.26(1) rulemaking authority to fill the void created by the absence of a statutory definition of the term "willful" that is directly applicable to violations of Chapter 104.
Having determined that Subsection (1) of Section 106.26, Florida Statutes, grants Respondent the authority to engage in such definitional rulemaking, the undersigned next turns to the question of whether the product of that rulemaking, Florida Administrative Code Rule 2B-1.002, "enlarges, modifies, or contravenes," and is therefore inconsistent with, the statutory language in Subsection (3) of Section 106.25, Florida Statutes, that it interprets and implements. Petitioner claims that there is such an inconsistency, arguing that the rule's definition of the term "willful," contrary to what the Legislature intended, "goes beyond the normal [interpretation] of the term, and thereby has enlarged or modified the specific provisions of the law implemented."
To withstand this inconsistency challenge, Respondent's definition of "willful" (a term that has been said to be "'a word of many meanings' whose construction is often dependent on the context in which it appears"19) must be within the range of possible and reasonable constructions of the term, as it is used in Subsection (3) of Section 106.25, Florida Statutes, concerning violations of Chapter 104, Florida Statutes. One need look no further to find support for the reasonableness of Respondent's definition than Section 106.37, Florida Statutes, which contains a similar definition of the term for purposes of determining violations of Chapter 106,
Florida Statutes. See Dufresne, 826 So. 2d at 275; In re McCollam, 612 So. 2d at 574; Hagan, 387 So. 2d at 945; Sullivan, 885 So. 2d at 876; and Krause, 366 So. 2d at 1252. While it is true that Section 106.37 directly applies only to violations of Chapter 106, Florida Statutes, it nonetheless, in absence of a definitional statutory provision applicable to violations of Chapter 104, provides guidance as to what the Legislature meant in Subsection (3) of Section 106.25 when it referred to "willful" violations of Chapter 104 (there being no apparent reason why the Legislature would intend "willful," as that term is used in Subsection (3) of Section 106.25, to mean one thing with respect to violations of Chapter 106 and another with respect to violations of Chapter 104). See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 126 S. Ct. 1503, 1513 (2006)("Generally, 'identical words used in different parts of the same statute are . . . presumed to have the same meaning.'"); United States v. Torres, 383 F.3d 92, 96 (3d Cir.
2004)("As a general canon of construction, the same words in the same statute are interpreted in the same way."); United States v. Hernandez-Avalos, 251 F.3d 505, 509 (5th Cir. 2001)("We fail to see the validity of interpreting this statute differently based on this distinction between sentencing and immigration cases; it is, after all, the same words of the same phrase from the same statute that is being interpreted in each instance.");
United States v. Balogun, 146 F.3d 141, 145 (2d Cir. 1998)("[W]e presume that Congress does not employ the same word to convey different meanings within the same statute . . . ."); and Everhart v. People, 54 Colo. 272, 276 (Colo. 1913)("We must ascribe the same meaning to the same words occurring in different parts of the same statute, unless it clearly appears therefrom that a different meaning was intended.").
Moreover, Respondent's definition of "willful" in Florida Administrative Code Rule 2B-1.002 (with its "reckless disregard" standard) is not in any way unusual or extraordinary. There are a host of cases in which courts, in various contexts, have employed a "reckless disregard" standard in defining or describing "willful" conduct. E.g., Gregory v. McKesson & Robbins, Inc., 54 So. 2d 682, 686 (Fla. 1951)("Willful misconduct involves conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences."); Dyals v.
Hodges, 659 So. 2d 482, 485 (Fla. 1st DCA 1995)("[I]n our opinion, defining willful and wanton misconduct as applied to punitive damages, is altogether consistent with the Restatement's definition of conduct which is in reckless disregard of the rights of others."); Williams v. Minneola, 619 So. 2d 983, 986 (Fla. 5th DCA 1993)("[R]eckless conduct is the
equivalent of willful and wanton conduct."); Bothmann v. Harrington, 458 So. 2d 1163, 1171 (Fla. 3rd DCA 1984)("'[A]ctual malice' necessary for punitive damages (or to overcome a privilege, . . . ) means ill will, bad or evil motive, or such gross indifference to or reckless disregard of the rights of others as will amount to a willful or wanton act."); Hazen Paper
Co. v. Biggins, 507 U.S. 604, 617 (1993)("We therefore reaffirm that the Thurston definition of 'willful' -- that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute -- applies to all disparate treatment cases under the ADEA."); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126 (1985)("The court below stated that a violation of the Act was 'willful' if 'the employer . . . knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.' . . . Given the legislative history of the liquidated damages provision, we think the 'reckless disregard' standard is reasonable."); United States v. Illinois Central Railroad Co., 303 U.S. 239, 243 (1938)("The significance of the word 'willfully' as used in § 3 [of the Act, 45 U. S. C. §§ 71-74] now before us, was carefully considered by the circuit court of appeals for the eighth circuit in St. Louis & S. F. R. Co. v. United States, 169 Fed.
Speaking through Circuit Judge Van Devanter, now
Mr. Justice Van Devanter, the court said (p. 71): 'Willfully
means . . . purposely or obstinately and is designed to describe the attitude of a carrier, who, having a free will or choice, either intentionally disregards the statute or is plainly indifferent to its requirements.' That statement has been found a useful guide to the meaning of the word 'willfully' and to its right application in suits for penalties under § 3."); Palmer v.
Stewart County School District, 178 Fed. Appx. 999, 1005 (11th Cir. 2006)("To establish a willful violation [of] the FLSA [Fair Labor Standards Act], Palmer must show that the [school district] either knew or showed a reckless disregard for the matter of whether its conduct was prohibited by the statute."); Reynolds v. Hartford Financial Services Group, Inc., 435 F.3d 1081, 1099 (9th Cir. 2006)("Reliance on such implausible interpretations may constitute reckless disregard for the law and therefore amount to a willful violation of the law."); Henson v. Bell Helicopter Textron, Inc., 128 Fed. Appx. 387, 393 (5th Cir. 2005)("To establish a willful violation of the FMLA [Family Medical Leave Act], a plaintiff must show that his employer 'either knew or showed reckless disregard for the matter of whether its conduct was prohibited by statute.'"); Conte v. Gautam, 33 F.3d 303, 305 (3d Cir. 1994)("In common law tort cases, willfulness has generally been equated with recklessness, which requires taking an action in disregard of a significant risk."); Brock v. Morello Brothers Construction,
Inc., 809 F.2d 161, 164 (1st Cir. 1987)("In civil cases such as this one, the standard is weaker in that an act may be 'willful' if the offender shows 'indifference' to the rules; he need not be consciously aware that the conduct is forbidden at the time he performs it, but his state of mind must be such that, if he were informed of the rule, he would not care."); Godfrey v.
United States, 748 F.2d 1568, 1578 (Fed. Cir. 1984)("The willfulness requirement [of 26 USCS § 6672] is satisfied 'if the responsible person acts with a reckless disregard of a known or obvious risk that trust funds may not be remitted to the Government, . . . such as by failing to investigate or to correct mismanagement after being notified that withholding taxes have not been duly remitted.'"); and L. R. Willson & Sons v. Donovan, 685 F.2d 664, 667 (D.C. Cir. 1982)("A willful violation is one done with an 'intentional disregard of, or plain indifference to, OSHA regulations. '").
While Florida Administrative Code Rule 2B-1.002's definition of "willful" is not identical to the Fugate
definition (with its "specific intent" standard), it is its substantial equivalent. As the First District Court of Appeal stated in Metropolitan Dade County, 714 So. 2d at 517, the case upon which the administrative law judge in Fugate relied, a definition of "willful" violation that "requires a showing that the actor 'either knew or showed reckless disregard for the
matter of whether its conduct was prohibited'" "conveys the same idea that the act be intentional and accompanied by the 'actor's intent and purpose that the prohibited conduct take place.'" See also, e.g., Russ v. State, 191 So. 296, 299 (Fla.
1939)("[R]eckless indifference to the rights of others . . . is equivalent to an intentional violation of them."); Nesbitt v.
Auto-Owners Insurance Co., 390 So. 2d 1209, 1211 (Fla. 5th DCA 1980)("It is appellant's position, with which we agree, that willful or wanton conduct or conduct which displays a reckless indifference to the rights of others is tantamount to intentional conduct for the purposes of this statute [Section 768.31, Florida Statutes, dealing with contribution among tortfeasors]. It is understandable there may be a lack of proof that a tortfeasor formed a specific intent to injure another, but his conduct may be of such a willful, wanton or reckless degree as to amount to the 'intention' mentioned in the statute."); United States v. Krimsky, 230 F.3d 855, 861 (6th Cir. 2000)("Krimsky asserts that the government must prove that a defendant acted with the purpose of violating § 664 and that reckless disregard for the plan's interests is insufficient to establish culpability. Decisions in prior cases, however, establish that reckless disregard satisfies the intent requirement of similar statutes. . . . The specific intent required for finding a violation of § 664 includes reckless
disregard for the interests of the plan."); and Heinen v. Healthline Management, Inc., 982 S.W.2d 244, 248 (Mo.
1998)("Finding a juror had a 'reckless disregard' for the responsibility to disclose information during voir dire is tantamount to intentional nondisclosure.").
Inasmuch as Florida Administrative Code Rule 2B-1.002 represents a reasonable construction of the statutory language of the "law implemented," Subsection (3) of Section 106.25, Florida Statutes, Petitioner's inconsistency challenge must be rejected.
Because Florida Administrative Code Rule 2B-1.002 is supported by an adequate grant of rulemaking authority (which Respondent has cited to as required by Section 120.54(3)(a)1., Florida Statutes); because it implements or interprets a specific power (to wit: the power to exercise jurisdictional authority over "willful" violations of Chapter 104, Florida Statutes) granted to Respondent by the Legislature in the statutory provision Respondent has cited as the "law implemented" (Subsection (3) of Section 106.25, Florida Statutes); and because it does so in a manner that neither enlarges, modifies, nor contravenes the "law implemented," it cannot be said that this rule is an "invalid exercise of delegated legislative authority," within the meaning of either
Subsection (8)(b) or Subsection (8)(c) of Section 120.52, Florida Statutes.
Since Petitioner has not met her burden of establishing that Florida Administrative Code Rule 2B-1.002 is an "invalid exercise of delegated legislative authority," within the meaning of Subsection (8) of Section 120.52, Florida Statutes, as alleged in her Amended Petition, she is not entitled to the award of "reasonable costs and attorney's fees pursuant to Subsection (3) of Section 120.595, Florida Statutes,"20 she has requested.
In view of the foregoing, Petitioner's Amended Petition is hereby DISMISSED.
DONE AND ORDERED this 24th day of October, 2006, in Tallahassee, Leon County, Florida.
S
STUART M. LERNER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2006.
ENDNOTES
1 All statutory references are to the 2006 version of Florida Statutes unless otherwise indicated.
2 At the time of the filing of the motion and Amended Petition, Florida Administrative Code Rule 2B-1.002 had been filed with the Secretary of State for adoption.
3 Paragraph 14 of the Amended Petition read as follows:
In addition to the foregoing, the FEC's Rule establishes a standard of willfulness that is significantly broader than the term has otherwise been defined by the Legislature or construed by the courts thus making it simpler for the FEC to meet its statutorily created burden of proof. There is no valid purpose for the Rule, the Rule is not supported by logic or the necessary facts, and the Rule was adopted without thought or reason and is irrational. As such, the Rule is arbitrary and capricious, and is not supported by competent, substantial evidence in the record of the rulemaking proceeding or otherwise.
4 Because it was not raised by Respondent, the issue of whether Petitioner has standing to challenge Florida Administrative Code Rule 2B-1.002 notwithstanding that her alleged "multiple willful violations of Section 104.051(2), Florida Statutes (2002)" were committed prior to the effective date of the rule is not before the undersigned. See Krivanek v. Take Back Tampa Political Committee, 625 So. 2d 840, 842 (Fla. 1993)("[W]e find that Krivanek has waived the right to raise the issue of standing because this issue has been raised for the first time in her petition to this Court. The issue of standing should have been raised as an affirmative defense before the trial court, and Krivanek's failure to do so constitutes a waiver of that defense, precluding her from raising that issue now."); and Island Marina, Inc. Department of Environmental Protection, No. 95-5593RP, 1996 Fla. ENV LEXIS 75 *39 (Fla. DOAH April 26, 1996)(Final Order)("Standing is not an issue. An affirmative defense, the issue of standing is waived if not timely raised.").
5 Section 120.54(3)(a)1., Florida Statutes, provides, in pertinent part, as follows:
Prior to the adoption, amendment, or repeal of any rule other than an emergency rule, an agency, upon approval of the agency head, shall give notice of its intended action, setting forth . . . a reference to the specific rulemaking authority pursuant to which the rule is adopted; and a reference to the section or subsection of the Florida Statutes or the Laws of Florida being implemented, interpreted, or made specific.
6 See Day Cruise Association, 794 So. 2d at 698 n.1.
7 This same language is also found in Section 120.536(1), Florida Statutes.
8 In a footnote, the Court noted that, "[w]hile the Legislature disavowed any intention 'to reverse the result of any specific judicial decision,' Ch. 99-379, § 1, Laws of Fla., it explicitly rejected the rule of decision that had yielded the result in St. Johns River Water Mgmt. Dist. v. Consolidated-Tomoka Land Co., 717 So. 2d 72, 80 (Fla. 1st DCA 1998)."
9 As the First District Court of Appeal observed in Day Cruise Association, 794 So. 2d at 702-03, quoting from a law review article:
"Under the statutory scheme, a grant of power to adopt rules is certainly required, but normally should be of little interest. Almost all agencies have a general grant-- usually found in the first part of their enabling statute--which basically states that the agency 'may adopt rules necessary to carry out the provisions of this chapter.' The first sentence [of section 120.536] emphasizes that such a general grant is sufficient to allow an agency to adopt a rule only when relied upon in conjunction with a specific provision of law to be implemented. "
10 In an endnote, Judge Van Laningham stated the following:
In carrying out the legislative intent to restrict rulemaking to the implementation and interpretation of "specific powers and duties," administrative law judges need to be on guard against thwarting the legislature’s will by construing an enabling statute too liberally; doing so may effectively resurrect the rejected "class of powers" test under the guise of interpretation. Conversely, construing an enabling law too narrowly risks hamstringing an agency in the performance of its proper role as administrator of broadly stated legislative policies, a result that should also be avoided.
11 "Florida law is consistent with the general law on the subject of deference to an agency's interpretation of the statute it is charged with enforcing." Bolam v. Mobil Oil Corporation, 893 F.2d 311, 313 n.3 (11th Cir. 1990).
12 This interpretation is "binding on the agency." See Kearse v. Department of Health and Rehabilitative Services, 474 So. 2d 819, 820 (Fla. 1st DCA 1985); see also American Iron and Steel Institute v. E.P.A., 115 F.3d 979, 989 (D.C. Cir. 1997)("This is a permissible reading of the regulation, and we will hold the agency to it. So long as the agency adheres to this reading, the petitioners' challenge to these procedures is not ripe. Should the agency ever adopt the interpretation the petitioners describe, this court will of course have jurisdiction to revisit the issue.").
13 Respondent is administratively situated within the Department of Legal Affairs, Office of the Attorney General. See § 106.24(1)(a), Fla. Stat.
14 Chapters 104 and 106, Florida Statutes, are grouped together in Title IX of Florida Statutes, which is entitled "Electors and Elections." The title of Chapter 104 is "Election Code: Violations; Penalties." The title of Chapter 106 is "Campaign Financing"; however, contrary to the assertion made by Petitioner in this proceeding, Chapter 106 does not "pertain[] solely and exclusively to campaign financing." It also deals with violations of the "Election Code" (Chapter 104), as a reading of Sections 106.023, 106.25, 106.26, 106.265, and
106.27, Florida Statutes, readily reveals. See Carter v. Government Employees Insurance Co., 377 So. 2d 242, 243 (Fla. 1st DCA 1979)("We recognize that courts may look to an act's title in interpreting the intent of the Legislature. However, the title's primary purpose is to give notice of the subject matter contained in the act, and the language of the title is not binding as to the meaning and application of the act.")(citations omitted); Brotherhood of Railroad Trainmen v. Baltimore & Ohio Railroad, 331 U.S. 519, 529 (1947)("That the heading of § 17 fails to refer to all the matters which the framers of that section wrote into the text is not an unusual fact. That heading is but a short-hand reference to the general subject matter involved. While accurately referring to the subjects of Commission procedure and organization, it neglects to reveal that § 17 also deals with judicial review of administrative orders and with intervention by employee representatives. But headings and titles are not meant to take the place of the detailed provisions of the text. Nor are they necessarily designed to be a reference guide or a synopsis.
Where the text is complicated and prolific, headings and titles can do no more than indicate the provisions in a most general manner; to attempt to refer to each specific provision would often be ungainly as well as useless. As a result, matters in the text which deviate from those falling within the general pattern are frequently unreflected in the headings and titles. Factors of this type have led to the wise rule that the title of a statute and the heading of a section cannot limit the plain meaning of the text. For interpretative purposes, they are of use only when they shed light on some ambiguous word or phrase. They are but tools available for the resolution of a doubt. But they cannot undo or limit that which the text makes plain.")(citations omitted); Strathearn Steamship Co. v. Dillon,
252 U.S. 348, 354 (1920)("[T]he title of an act cannot limit the plain meaning of its text, although it may be looked to to aid in construction in cases of doubt."); and Minnesota Transportation Regulation Board v. United States, 966 F.2d 335,
339 (8th Cir. 1992)("The MTRB also points to the title of section 11343 -- 'Consolidation, merger, and acquisition of control' -- and to the title of Subchapter III (49 U.S.C. §§ 11341-11351) -- 'Combinations' -- to prove that § 11343(a)(2) should be limited to transactions involving consolidations of carriers. This argument is unavailing. Section and subchapter titles cannot alter the plain meaning of a statute; they can only assist in clarifying ambiguity.").
15 Although dicta does not constitute binding precedent, it may be considered persuasive authority in the absence of controlling precedent to the contrary. See Stafford v. Meek, 762 So. 2d 925, 927 n.1 (Fla. 3rd DCA 2000)("Although the quoted language is dicta, we accord it the weight of persuasive authority."); Sims v. State, 743 So. 2d 97, 99 (Fla. 1st DCA 1999)("While dicta from the Florida Supreme Court may afford welcome guidance, such passages lack the binding force of precedent.")(citation omitted); Griffin v. State, 705 So. 2d 572, 574 n.3 (Fla. 4th DCA 1998)("Although that portion of Berry holding that merely moving robbery victims to another room for the duration of the robbery does not support a kidnapping conviction is dicta, dicta from the supreme court is persuasive authority."); and Lantana v. Pelczynski, 290 So. 2d 566, 568 (Fla. 4th DCA 1974)("Since the Supreme Court held that the statute did not apply to the acts complained of, the remainder of the decision pertaining to the constitutionality of the statute is obiter dictum, and we would be justified in finding that, though persuasive, it is not binding precedent.").
16 Petitioner posits that the rulemaking authority granted by Subsection (1) of Section 106.26, Florida Statutes, "extends no further than the procedure by which complaints are to be considered by [Respondent]." The language used by the Legislature, however, does not support such a narrow construction of this statutory provision. See Chaffee v. Miami Transfer Co., 288 So. 2d 209, 215 (Fla. 1974)("To say, as the employer would have us do, that in merger cases the true meaning of § 440.15(3)(u) is that disability for purposes of that section is the greater of physical impairment or loss of earning capacity only if there is a loss of earning capacity is to invoke a limitation or to add words to the statute not placed there by the Legislature. This we may not do."); Commercial Coating v. State, Department of Environmental Regulation, 548 So. 2d 677, 678 (Fla. 3rd DCA 1989)("In construing statutes courts may not invoke a limitation or add words to the statute not placed there by the legislature."); Carson v. Jackson, 466 So. 2d 1188, 1191 (Fla. 4th DCA 1985)("Petitioners urge that we construe section 415.512 to apply only to activities conducted by the State Department of Health and Rehabilitative Services. We cannot agree that the broad language used in the statute by the legislature warrants such narrow construction."); and James Talcott, Inc. v. Bank of Miami Beach, 143 So. 2d 657, 659 (Fla. 3rd DCA 1962)("[W]e are not free to add words to steer [the statute] to a meaning and limitation which its plain wording does not supply.").
17 "Rule" is defined in Subsection (15) of Section 120.52, Florida Statutes, as follows:
"Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the 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. The term also includes the amendment or repeal of a rule. The term does not include:
Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum.
Legal memoranda or opinions issued to an agency by the Attorney General or agency legal opinions prior to their use in connection with an agency action.
The preparation or modification of:
Agency budgets.
Statements, memoranda, or instructions to state agencies issued by the Chief Financial Officer or Comptroller as chief fiscal officer of the state and relating or pertaining to claims for payment submitted by state agencies to the Chief Financial Officer or Comptroller.
Contractual provisions reached as a result of collective bargaining.
Memoranda issued by the Executive Office of the Governor relating to information resources management.
18 The Legislature has further stated in Subsection (1)(a) of Section 120.54, Florida Statutes, that:
Rulemaking shall be presumed feasible unless the agency proves that:
The agency has not had sufficient time to acquire the knowledge and experience reasonably necessary to address a statement by rulemaking;
Related matters are not sufficiently resolved to enable the agency to address a statement by rulemaking; or
The agency is currently using the rulemaking procedure expeditiously and in good faith to adopt rules which address the statement.
Rulemaking shall be presumed practicable to the extent necessary to provide fair notice to affected persons of relevant agency procedures and applicable principles, criteria, or standards for agency decisions unless the agency proves that:
Detail or precision in the establishment of principles, criteria, or standards for agency decisions is not reasonable under the circumstances; or
The particular questions addressed are of such a narrow scope that more specific resolution of the matter is impractical outside of an adjudication to determine the substantial interests of a party based on individual circumstances.
19 See Bryan v. United States, 524 U.S. 184, 191 (1998).
20 Subsection (3) of Section 120.595, Florida Statutes, provides that "if the court or administrative law judge declares a rule or portion of a rule invalid pursuant to s. 120.56(3), a judgment or order shall be rendered against the agency for
reasonable costs and reasonable attorney's fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust."
COPIES FURNISHED:
Scott Boyd, Executive Director and General Counsel
Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
Mark Herron, Esquire
E. Gary Early, Esquire
Messer, Caparello, & Self, P.A.
215 South Monroe Street, Suite 701 Tallahassee, Florida 32308
Henry C. Hunter, Esquire
219 East Virginia Street Tallahassee, Florida 32301
Edward A. Tellechea, Esquire Claudel Pressa, Esquire Department of Legal Affairs The Capitol, Plaza Level 01
Tallahassee, Florida 32399-1050
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Summary 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 the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a 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.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 29, 2007 | Mandate | |
| Mar. 13, 2007 | Opinion | |
| Oct. 24, 2006 | DOAH Final Order | Rule defining "willful" for purposes of Chapter 104, Florida Statutes, not an "invalid exercise of delegated legislation authority," as alleged by Petitioner. |
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SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT vs AMBER SUGGS, 06-002886RX (2006)
