STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FINAL ORDER

Pursuant to notice, a final hearing was held in this case in Tallahassee, Florida, on January 27, 2010, before Jeff B. Clark, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Emmett Mitchell, IV, Esquire

200 West College Avenue, Suite 311B Tallahassee, Florida 32301

For Respondent: Edward A. Tellechea, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue presented is whether Florida Administrative Code Rule 2B-1.002 is an "invalid exercise of delegated legislative authority."

PRELIMINARY STATEMENT

On August 27, 2009, Petitioner filed a Petition with the Division of Administrative Hearings ("DOAH") requesting an administrative hearing to determine the validity of Florida Administrative Code Rule 2B-1.002, effective December 25, 2009, alleging that the rule is an invalid exercise of delegated legislative authority. By Order dated August 28, 2009, DOAH's Chief Judge determined that the Petition was in compliance with the requirements of Section 120.56, Florida Statutes, and assigned the case to the undersigned.

On September 2, 2009, a Notice of Hearing was entered scheduling the case for October 13, 2009, in Tallahassee, Florida. On September 30, 2009, an agreed Motion to Continue was filed; and on October 6, 2009, an Order Granting Continuance was entered requiring the parties to advise within ten days the dates of their mutual availability for the final hearing. On October 16, 2009, the parties filed a Joint Response to Order Granting Continuance, and the final hearing was rescheduled for January 12, 2010.

On November 4, 2009, the parties jointly filed a Proposed Schedule agreeing to the following:

1. Parties shall submit proposed final orders by December 22, 2009.

2. Parties shall submit responses to the proposed final orders by January 5, 2010.

3. Parties shall proceed with oral arguments on the law at a brief hearing on January 12, 2010.

Based on the foregoing agreed schedule, a Notice of Hearing was entered scheduling oral arguments on the law for January 12, 2010.

On December 18, 2009, the parties filed a Joint Motion for Continuance proposing the following schedule:

1. Parties shall submit proposed final orders by January 8, 2010.

2. Parties shall submit responses to the proposed final orders by January 19, 2010.

3. Parties shall proceed with oral arguments on the law at a brief hearing on January 27, 2010.

On December 22, 2010, an Order Granting Continuance and Rescheduling Hearing was entered scheduling oral argument on the law for January 27, 2010, as agreed by the parties.

The hearing (arguments on the law) took place as rescheduled. The parties were given an opportunity to submit additional written arguments on the law following the hearing. Respondent filed a Memorandum in Support of Petitioner's Rule Challenge on February 10, 2010.

All statutory references are to Florida statutes (2008), unless otherwise noted.

STIPULATED FINDINGS OF FACT

The following facts have been stipulated by the parties:

1. Petitioner, Brian L. Blair, is a Respondent in a case before DOAH styled, Florida Elections Commission v. Brian L. Blair, Case No. 09-2069, wherein the Florida Elections Commission ("Commission") has charged Mr. Blair with two counts of willfully accepting campaign contributions in excess of

   $500.00 in violation of Subsection 106.19(1)(a), Florida Statutes.

2. Petitioner filed a Petition to Determine Invalidity of Existing Rule on August 28, 2009, wherein he alleges that the Commission Rule, Florida Administrative Code Rule 2B-1.002, constitutes an invalid exercise of delegated legislative authority.

3. As a person subject to Chapter 106, Florida Statutes, and accused of willfully violating one of its prohibitions,

   Mr. Blair is substantially affected by the Commission's application of Florida Administrative Code Rule 2B-1.002 to his case and, therefore, has the requisite standing to bring this action.

4. In 2007, the Florida Legislature repealed Section 106.37, Florida Statutes (2006), which contained a definition of

   "willfulness" for purposes of Chapter 106, Florida Statutes. That section was repealed by CS/HB 537 (Section 51, Chapter 2007-30, Laws of Florida), effective January 1, 2008.

5. Contemporaneous with the repeal of Section 106.37, Florida Statutes, the same legislation amended Subsection 106.25(3), Florida Statutes, to provide that willfulness is "a determination of fact." (§ 48, Chap. 2007-30, Laws of Florida, effective January 1, 2008). Subsection 106.25(3), Florida Statutes, currently provides:

   (3) For the purposes of commission jurisdiction, a violation shall mean the willful performance of an act prohibited by this chapter or chapter 104 or the willful failure to perform an act required by this chapter or chapter 104. Willfulness is a determination of fact; however, at the request of the respondent, willfulness may be considered and determined in an informal hearing before the commission. (Emphasis added.)

   
   

6. The 2007 Legislative Session ended on May 4, 2007; CS/HB 537 was signed and approved by the Governor on May 22, 2007.

7. On May 24 and 25, 2007, Barbara Linthicum, executive director of the Commission at the time, engaged in the following exchange via email with the Commission's attorney, Edward A. Tellechea, counsel of record in this case, regarding Florida Administrative Code Rule 2B-1.002:

   Ms. Linthicum: "Do you think we have authority to add chapter 106 to the willfulness rule?"

   
   

   Mr. Tellechea: ". . . Someone will challenge it[,] but what the heck[,] I'm game."

   
   

   Ms. Linthicum: "But, if you are game, I think we should definitely go ahead before January 1 comes along. You certainly do have a good track record defending our rules"

   
   

8. The amendment of Florida Administrative Code Rule 2B-1.002 was effective December 25, 2007. The repeal of the

   definition of "willfulness" in Section 106.37, Florida Statutes, became effective January 1, 2008.

9. The proposed rule amendment to Florida Administrative Code Rule 2B-1.002 that is the subject of this proceeding was reviewed in 2007 by the Joint Administrative Procedures Committee of the Florida Legislature, pursuant to Section 120.545, Florida Statutes, prior to its adoption, and the Committee made no written comments or filed any written objections.

10. In order to determine whether willful violations of Chapter 106, Florida Statutes, have occurred, the Commission employs the definition of "willful" contained in Florida Administrative Code Rule 2B-1.002, when making the factual determination of willfulness.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the parties and subject matter. § 120.56, Fla. Stat. (2009).

12. Petitioner is challenging Florida Administrative Code Rule 2B-1.002, which provides:

    Definitions.

    
    

    For purposes of imposing a civil penalty for violating Chapter 104 or 106, F.S., the following definitions shall apply:

    
    

    1. A person acts “willful” or “willfully” when he or she knew that, or showed reckless disregard for whether his or her conduct was prohibited or required by Chapter 104 or 106, F.S.

       
       

    2. “Knew” means that the person was aware of a provision of Chapter 104 or 106, 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.

       
       

    3. “Reckless disregard” means that the person disregarded the requirements of Chapter 104 or 106, 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 or 106, F.S., or whether he or she failed to perform an act required by Chapter 104 or 106, F.S.

       
       

13. Section 120.56, Florida Statutes, allows a substantially affected person to challenge a rule's facial validity. Petitioner's standing is not in dispute.

14. An existing rule may be challenged pursuant to Section 120.56, Florida Statutes, on the grounds that it is an "invalid exercise of delegated legislative authority." § 120.56(3)(a), Fla. Stat. (2009).

15. A duly-promulgated agency rule will be considered presumptively valid until it is shown that it is invalid by way of a rule challenge. Petitioner bears the burden of proving by a preponderance of the evidence that the challenged rule is an invalid exercise of delegated legislative authority.

    § 120.56(3)(a), Fla. Stat. (2009).

    
    

16. Subsection 120.52(17), Florida Statutes, defines "rulemaking authority" as follows:

    "Rulemaking authority" means statutory language that explicitly authorizes or requires an agency to adopt, develop, establish, or otherwise create any statement coming within the definition of the term "rule."

    
    

17. Petitioner asserts that Florida Administrative Code Rule 2B-1.002 is an "invalid exercise of delegated legislative authority," which means the action goes beyond the powers, functions, and duties delegated by the Legislature. Petitioner asserts Florida Administrative Code Rule 2B-1.002 is an invalid exercise of delegated legislative authority, pursuant to Subsection 120.52(8)(b), (c), Florida Statutes, which provides:

    1. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;

       
       

    2. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.

    
    

18. Subsections (8)(b) and (c) of Section 120.52, Florida Statutes, must be read in pari materia with the closing paragraph of Subsection (8), which 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 enabling statute.

    
    

19. In discussing the interpretation of Subsection 120.52(8), Florida Statutes, the court in Board of Trustees of the Internal Improvement Fund v. Day Cruise Association, Inc., 794 So. 2d 696, 700 (Fla. 1st DCA 2001), stated:

    [A]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 rehearing, the court clarified its opinion and stated:

    
    

    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 or it does not . . . [T]his question is one that must be determined on a case-by-case basis. (Emphasis in original.)

    
    

    Board of Trustees of Internal Improvement Fund v. Day Cruise Association, Inc., 798 So. 2d 847 (Fla. 1st DCA 2001).

20. The Legislature's restrictive delegation of rulemaking authority is further emphasized by the 2008 revision of Subsection 120.52(17), Florida Statutes, where the definition of rulemaking authority now includes the term "explicitly," and states:

    "Rulemaking authority" means statutory language that explicitly authorizes or requires an agency to adopt, develop, establish, or otherwise create any statement coming within the definition of the term "rule."

    
    

21. An agency is required by Subsection 120.54(3)(a)1., Florida Statutes, to "reference to the grant of rulemaking authority pursuant to which the rule is adopted"; Respondent relies on Section 106.26, Florida Statutes, as the "authority"

    for Florida Administrative Code Rule 2B-1.002. Section 106.26, Florida Statutes, grants rulemaking authority in Subsections (1) and (12).

22. Subsection 106.26(1), Florida Statutes, provides, in pertinent part:

    The commission 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.

    
    

23. If the statutory provisions are among those Respondent is specifically responsible for administering, Respondent's construction of these provisions (as incorporated in the rule) "should be upheld when it is within the rule of permissible interpretations." Board of Podiatric Medicine v. Florida Medical Association, 779 So. 2d 658, 660 (Fla. 1st DCA 2001).

24. "Legislative intent is the 'polestar' in interpretation of statutory provisions." Blinn v. Department of Transportation, 781 So. 2d 1103, 1106 (Fla. 1st DCA 2001). 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.

25. "Legislative intent must be derived primarily from the words expressed in the statute. If the language 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 legislative intent), the entire statute, along with related provisions, must be examined. Woodham v. Blue Cross and Blue Shield of Florida, 829 So. 2d 891 (Fla. 2002).

26. The Legislature's 2007 repeal of Section 106.37, Florida Statutes (2006), containing the definition of "willfulness" and the contemporaneous amendment of Subsection 106.25(3), Florida Statutes, making willfulness "a determination of fact," is a clear indication that the Legislature did not perceive a need to define the term, nor did it foresee the necessity of defining "willfulness" by rule. In fact, by statute, it made the finding of "willfulness" a determination of fact. "[I]t is presumed the Legislature intends to change the law when it repeals or amends a statute." Smith v. Department of Corrections, 961 So. 2d 1050 (Fla. 1st DCA 2007).

27. The clear intent of Subsection 106.26(1), Florida Statutes, is to require Respondent to "consider all sworn complaints filed with it and all matters reported to it by the Division of Elections." Even though Subsection 106.26(1), Florida Statutes, authorizes the adoption of rules by which Respondent is to consider sworn complaints, Respondent's reliance on this as its statutory authority is ill-advised. There is no "explicit" statutory authority to define “willful”

    or "willfulness" that can be read into the clear statutory language.

28. By defining "willfulness" in Florida Administrative Code Rule 2B-1.006, Respondent "enlarges, modifies, or contravenes the specific provisions of law implemented." The clear legislative intent in making "willfulness" a determination of fact is to allow the trier of fact to make a determination of "willfulness" based on the factual situation presented in each case. By imposing its definition of "willfulness," Respondent challenges the Legislature's decision to remove the definition from the statute and modifies or contravenes the specific provisions of the statutory revision by imposing its own definition.

29. Ruling on Petitioner's request for reasonable attorney's fees and costs is deferred for separate hearing where Respondent shall have the opportunity to demonstrate

that its actions were substantially justified or special circumstances exist which would make the award unjust.

FINAL ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that Florida Administrative Code Rule 2B-1.002 constitutes an invalid exercise of delegated legislative authority, because in promulgating this rule, Respondent

exceeded its delegated legislative authority; and because the rule enlarges, modifies, or contravenes the specific provisions of the law being implemented.

DONE AND ORDERED this 5th day of March, 2010, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2010.

COPIES FURNISHED:

Eric Lipman, Acting Executive Director Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

Patricia Rushing, Clerk Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

Scott Boyd, Executive Director and General Counsel

Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

Liz Cloud, Program Administrator Administrative Code

Department of State

R.A. Gray Building, Suite 101 Tallahassee, Florida 32399

Emmett Mitchell, IV, Esquire

200 West College Avenue, Suite 311B Tallahassee, Florida 32301

Edward A. Tellechea, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

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 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.

Docket for Case No: 09-004732RX

Orders for Case No: 09-004732RX