06-003968RU Florida Hometown Democracy, Inc. vs. Department Of State Status: Closed DOAH Final Order on Thursday, January 25, 2007.

Summary: Petitioner did not demonstrate that the agency statement on the Department`s website regarding spanish translations was a rule as defined in section 120.52(15), Florida Statutes.

Case No. 06-3968RU

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA HOMETOWN ) ) ) ) ) ) ) ) ) ) )

DEMOCRACY, INC.,

FINAL ORDER

Petitioner,

vs.

DEPARTMENT OF STATE,

Respondent.

On December 12, 2006, a hearing was held in Tallahassee,

Florida, pursuant to the authority set forth in Sections 120.569

and 120.57(1), Florida Statutes (2006). The case was considered

by Lisa Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Ross Stafford Burnaman, Esquire

1018 Holland Drive

Tallahassee, Florida 32301

For Respondent: Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether the agency statement listed on the Department of

State's (DOS or the Department's) webpage under "Frequently Asked

Questions" regarding translation of petitions for constitutional

amendment is an unpromulgated rule.

PRELIMINARY STATEMENT

On October 12, 2006, Florida Hometown Democracy, Inc.

(Hometown Democracy) filed a Petition for Administrative

Determination of Agency Statement Defined as a Rule, asserting

that the Department's statement regarding translation of

petitions for constitutional amendments is an unpromulgated rule.

On October 16, 2006, the case was assigned to the undersigned and

on that same day was set for hearing November 14, 2006. On

October 24, 2006, Respondent filed a Motion for Continuance

requesting that the case be continued until January, stating that

the State of Florida would be conducting a statewide election

Tuesday, November 7, 2006, and that the staff for the Division of

Elections would be involved in the certification process for the

election through November 18, 2006. Petitioner opposed the

continuance. On November 1, 2006, Respondent's request for

continuance was granted based upon good cause shown, and the

hearing was rescheduled for December 12, 2006.

The Petitioner filed four sets of Answers from Requests for

Admissions, and in the Pre-Hearing Stipulation the parties have

stipulated to certain facts that, to the extent they are relevant

to resolve the issues raised in the Petition, have been

incorporated into the findings of fact below.

The hearing was conducted December 12, 2006. Petitioner

presented the testimony of Ion Sancho, Leslie Blackner, Denise

Holh and Dawn Roberts, and Petitioner's Exhibits numbered 1-8

were admitted into evidence. Joint Exhibit 1 was also admitted.

The Respondent presented no witnesses or exhibits. Official

Recognition was granted without objection to Sections 20.10,

97.012, 100.371 and 101.161(2), Florida Statutes (2006); United

States Code provisions 42 U.S.C. § 1973aa-1a, 42 U.S.C.

§ 1973(a), and 42 U.S.C. § 1973b(f)(4); 67 Federal Register 48871

- 48873 (July 26, 2002)(Excerpt from the Bureau of Census' Notice

of Determination); Department of State Advisory Opinion DE-94-06;

Spanish Guide to the Proposed Constitutional Amendments on the

2006 General Election Ballot: "Propuesta de Reforma

Constitucional para Someter a Votacion el 7 de Noviembre de

2006," published by the Division of Elections; Florida

Administrative Code Rules 1S-2.009 and 1S-2.0091; and the

November 7, 2007 request by the Florida Attorney General to the

Supreme Court of Florida regarding the citizens' initiative to

amend the constitution in Petition Serial Number 05-22, filed in

Case No. SC05-2183.

The parties were given until January 12, 2007, to file

recommended orders, and the transcript used in this case was

filed with the Division of Administrative Hearings on January 18,

2007. 1/ Both parties filed Recommended Orders which have been

considered in the preparation of the Final Order.

FINDINGS OF FACT

1. DOS has general supervision and administration of

Florida's election laws. As Florida's chief election officer,

the Secretary of State has a responsibility to obtain and

maintain uniformity in the interpretation and implementation of

the election laws. This function is accomplished through the

Division of Elections.

2. Hometown Democracy is a Florida corporation and

political action committee. It is the sponsor of a citizen's

initiative to amend the Florida Constitution, with an approved

petition serial number 05-18 (the Petition).

3. DOS is responsible for the content of the website at

http://election.dos.state.fl.us/initiatives/faq.shtml.

4. The website contains a section entitled "Frequently

Asked Questions." One of the questions (and answer) included on

the website is the following:

5. Can we print our petition in Spanish?

Yes. However, the Division of Elections does

not proof it; that is the committee's

responsibility.

5. On or about March 24, 1994, the Division of Elections

issued Advisory Opinion DE94-06. In that Advisory Opinion, the

Division stated in part:

As to your second question, a Spanish

translation of a previously approved

initiative petition in English need not be

submitted in writing to the Division for

format review. The Division has neither the

responsibility nor the authority to verify

that the wording of the Spanish translation

is the same as the English version. That

responsibility rests with the sponsor of the

initiative. To reduce potential differences

in interpretation that could result from a

language translation, however, it is

suggested that the Spanish language version

be printed on the reverse side of the

approved English language form.

6. DOS provided the text of proposed constitutional

amendments, including citizens' initiatives, to various Florida

newspapers for publication prior to the 2004 general election.

The citizens' initiatives were those for which the requisite

number of signatures had been collected and which had been

approved for placement on the ballot.

7. DOS has published the text of proposed constitutional

amendments being placed on a statewide ballot in both English and

Spanish, including citizens' initiatives where the sponsor has

not submitted a Spanish version of the petition to the Department

of State for review.

8. On or about September 22, 2005, Floridians for Stem Cell

Research and Cures, Inc., submitted a Spanish version of a

citizens' initiative, serial number 05-22, to the Division of

Elections.

9. On December 13, 2005, the Division of Elections

responded to the Floridians for Stem Cell Research and Cures,

Inc., that it would not undertake review of the format of the

Spanish version of citizens' initiative serial number 05-22.

10. The Department of State has adopted Florida

Administrative Code Rule 1S-2.009, "Constitutional Amendment by

Initiative Petition." The Rule was adopted to implement Sections

100.371 and 101.161, Florida Statutes, and has been in existence

in some form since 1979. Relevant portions of the current

version of the Rule state:

1S-2.009 Constitutional Amendment by

Initiative Petition.

(1) Submission of Initiative Petition. Any

proposed initiative amendment to the State

Constitution to be placed on the ballot

shall be submitted by the sponsoring

political committee to the Division of

Elections for approval as to format prior to

circulation of the proposed initiative

amendment. Such submission shall be in

writing and shall include a copy or a

facsimile of the proposed form to be

circulated. No initiative petition form for

signatures may be circulated unless approved

by the Division of Elections.

(2) Requirements and Approval of Initiative

Form. The Division shall review the

initiative petition form solely for

sufficiency of the format and shall render a

decision within the seven (7) days following

receipt. The Division shall not review the

petition form for legal sufficiency. The

format of the petition form is deemed

sufficient only if the petition form:

(a) Is printed on separate cards or

individual sheets of paper. The minimum size

of such forms shall be 3 inches by 5 inches

and the maximum shall be 8 1/2 inches by 11

inches.

(b) Is clearly and conspicuously entitled

at the top of the form "Constitutional

Amendment Petition Form."

(c) Includes adequate space for the

signee's name, legal residential street

address, city, county, date of birth,

signature, and date of signature.

(d) Contains the ballot title that shall

not exceed 15 words and the ballot summary

of the proposed amendment or other public

measure that shall not exceed 75 words in

length as prescribed in subsection (4).

(e) Conspicuously contains the full text

of the amendment being proposed including

the article and section being created or

amended, preceded by a ballot title and

ballot summary. If the text must be printed

on both sides of the form, it shall be

clearly indicated that the text is continued

or begins on the other side.

(f) Contains space for only one elector's

signature. The Division will not approve

petition forms providing for multiple

signatures per page.

(g) Is marked, in accordance with Section

106.143, F.S., governing political

disclaimers, with "paid political

advertisement" or contains the abbreviation

"pd. pol. adv." and identifies the name of

the sponsoring political committee, and the

name of the entity paying for the

advertisement if different from the name of

the sponsoring political committee.

(h) Contains space, in accordance with

Section 106.19(3), F.S., for the name and

address of a paid petition circulator, in

the event the petition form is gathered by a

paid petition circulator.

11. In 2006, Rule 1S-2.009 was amended to include the

following subsection:

(7) Changes. Any change to a previously

approved petition form shall be submitted to

the Division of Elections for review. No

person or entity other than the sponsoring

political committee of the previously

approved petition form can submit a change or

changes to the previously approved petition

form. The Division of Elections must approve

any material change to a previously approved

petition form. A material change constitutes

a change in the wording of the text of the

proposed amendment, the ballot title, or

ballot summary, or a change in punctuation or

layout, or a change to the political

disclaimer. Any material change submitted

for approval to a previously approved

initiative petition constitutes a request for

approval of a new petition form and shall be

assigned a different serial number upon

approval by the Division of Elections.

[Emphasis supplied.]

12. The description of a "material change" contained in

subsection (7) does not include a translation of a previously

approved citizens' initiative. After the adoption of subsection

(7), a political action committee seeking to circulate a

translation of a previously submitted citizens' initiative would

need to submit the translation to the Division because it would

constitute a change, but a translation, standing alone, would not

constitute a material change.

13. Hometown Democracy hired a professional translation

service to prepare a certified Spanish translation of the

Hometown Democracy Petition. Hometown Democracy made an inquiry

of the Division of Elections to determine the accuracy of the

Spanish translation of the Petition. On August 30, 2006,

Hometown Democracy submitted the Spanish translation of the

Petition, seeking approval to circulate it for signatures of

registered voters and for verification by Supervisors of

Elections in order to qualify for the general election ballot.

14. On or about September 8, 2006, the Director for the

Division of Elections responded to Hometown Democracy's

August 30, 2006, letter and stated in part:

The format of the Spanish version of this

petition appears to follow the format of the

originally approved petition, with no evident

material change. No review of the legal

sufficiency of the text of the proposed

amendment has been nor will be undertaken by

the Division of Elections.

15. The Division has never approved a Spanish translation

of an approved citizens' initiative petition form.

16. As of the date of hearing, there has been no challenge

to the accuracy of the translation secured by Hometown Democracy.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

18. Petitioner has the burden of demonstrating by a

preponderance of the evidence that the agency statement is a rule

as defined by Section 120.52(15), Florida Statutes (2006).

§120.56(4)(b), Fla. Stat. (2006) The burden then shifts to the

agency to prove that rulemaking is not practicable or feasible.

Id.

19. The Department of State has general supervision and

administration of Florida's election laws. § 15.13, Fla. Stat.

(2006). Section 97.012(14), Florida Statutes (2006), authorizes

the Secretary to:

(14) Bring and maintain such actions at law

or in equity by mandamus or injunction to

enforce the performance of any duties of a

county supervisor of elections or any

official performing duties with respect to

chapters 97-102 and chapter 105 or to enforce

compliance with a rule of the Department of

State adopted to interpret or implement any

of those chapters.

20. Section 100.371, Florida Statutes (2006), provides in

pertinent part:

(1) Constitutional amendments proposed by

initiative shall be placed on the ballot for

the general election, provided the initiative

has been filed with the Secretary of State no

later than February 1 of the year the general

election is held. A petition shall be deemed

to be filed with the Secretary of State upon

the date the secretary determines that the

petition has been signed by the

constitutionally required number of electors.

(2) The sponsor of an initiative amendment

shall, prior to obtaining any signatures,

register as a political action committee

pursuant to s. 106.03 and submit the text of

the proposed amendment to the Secretary of

State, with the form on which the signatures

will be affixed and shall obtain the approval

of the Secretary of State of such form. The

Secretary of State shall adopt rules pursuant

to s. 120.54 prescribing the style and

requirements of such form. Upon filing with

the Secretary of State, the text of the

proposed amendment and all forms filed in

connection with this section must, upon

request, be made available in alternative

formats.

21. Section 101.161, Florida Statutes (2006), provides in

pertinent part:

(1) Whenever a constitutional amendment or

other public measure is submitted to the vote

of the people, the substance of such

amendment or other public measure shall be

printed in clear and unambiguous language on

the ballot after the list of candidates,

followed by the word "yes" and also by the

word "no," and shall be styled in such a

manner that a "yes" vote will indicate

approval of the proposal and a "no" vote will

indicate rejection. . . . Except for

amendments and ballot language proposed by

joint resolution, the substance of the

amendment or other public measure shall be an

explanatory statement, not exceeding 75 words

in length, of the chief purpose of the

measure. . . . The ballot title shall consist

of a caption, not exceeding 15 words in

length, by which the measure is commonly

referred to or spoken of.

(2) The substance and ballot title of a

constitutional amendment proposed by

initiative shall be prepared by the sponsor

and approved by the Secretary of State in

accordance with rules adopted pursuant to s.

120.54. The Department of State shall give

each proposed constitutional amendment a

designating number for convenient reference.

This number designation shall appear on the

ballot. Designating numbers shall be

assigned in the order of filing or

certification and in accordance with rules

adopted by the Department of State. The

Department of State shall furnish the

designating number, the ballot title, and the

substance of each amendment to the supervisor

of elections of each county in which such

amendment is to be voted on.

22. Section 120.52(15), Florida Statutes (2006), defines a

"rule" as "each agency statement of general applicability that

implements, interprets, or prescribes law or policy or describes

the procedure or practice requirements of an agency. . . ." An

agency statement or policy is a rule if its effect requires

compliance, creates certain rights while adversely affecting

others, or otherwise has the direct and consistent effect of law.

Jenkins v. State , 855 So. 2d 1219, 1225 (Fla. 1st DCA 2003);

Department of Revenue v. Novoa , 745 So. 2d 378, 380 (Fla. 1st DCA

1999); Department of Transportation v. Blackhawk Quarry Company

of Florida, Inc. , 528 So. 2d 447, 449 (Fla. 5th DCA 1988).

23. To challenge an agency statement as a rule, Petitioner

must demonstrate that its substantial interests are affected by

the agency statement. To do so, Petitioner must show that 1) the

rule or policy will result in a real or immediate injury in fact;

and 2) the alleged interest is within the zone of interest to be

protected or regulated. Jacoby v. Florida Board of Medicine , 917

So. 2d 358 (Fla. 1st DCA 2005); Florida Board of Medicine v.

Florida Academy of Cosmetic Surgery , 808 So. 2d 243 (Fla. 1st DCA

2002), superseded on other grounds , Department of Health v.

Merritt , 919 So. 2d 561 (Fla. 1st DCA 2006).

24. Petitioner has demonstrated standing to bring this

proceeding. Petitioner is a political action committee seeking

to have its citizen's initiative placed on the ballot. The

ability to use a Spanish translation in pursuit of signatures is

significant to the initiative's success. The process used for

determining what steps must be taken in order to comply with the

requirements of Section 100.371 is within the zone of interest to

be regulated in this instance.

25. However, Petitioner has not demonstrated that the

agency statement is a rule as contemplated by Section 120.52(15).

In The Environmental Trust v. Department of Environmental

Protection , 714 So. 2d 493, 498 (Fla. 1st DCA 1998), the

Department determined that the amount represented by a factoring

scheme used by petitioners in connection with requests for

reimbursement for cleaning up petroleum contaminations would be

denied. The Department had a rule in place concerning the

necessary qualifications for reimbursement, but the rule did not

expressly address the factoring scheme at issue in the

petitioners' requests for reimbursement. The petitioners

challenged the Department memoranda outlining its factoring and

markup policy. Ultimately, the First District Court of Appeal

determined that the Department's actions were justified on the

basis of the controlling statute and existing rule. The Court

stated:

An agency statement that is the

equivalent of a rule must be adopted in the

rulemaking process. See , e.g. , Christo v.

Statement Department of Banking and Fin. , 649

So. 2d 318 (Fla. 1st DCA 1995); Florida

League of Cities v. Administration Comm'n ,

586 So. 2d 397 (Fla. 1st DCA 1991). This

requirement, carried forward in section

120.54(1), Florida Statutes (Supp. 1996),

prevents an administrative agency from

relying on general policies that are not

tested in the rulemaking process, but it does

not apply to every kind of statement an

agency may make. Rulemaking is required only

for an agency statement that is the

equivalent of a rule, which is defined as a

statement of "general applicability."

An agency statement explaining how an

existing rule of general applicability will

be applied in a particular set of facts is

not itself a rule. If that were true, the

agency would be forced to adopt a rule for

every possible variation on a theme, and

private entities could continually attack the

government for its failure to have a rule

that precisely addresses the facts at issue.

26. The same can be said here. In this case, the

Department has the statutory responsibility to provide ballot

language in alternative formats upon filing, i.e., at the point

when the Secretary determines that the petition has been signed

by the constitutionally required number of electors.

§ 100.371(1), Fla. Stat. (2006). This requirement is consistent

with Section 101.2515, Florida Statutes, which provides:

Upon the request of a supervisor of elections

made no later than 60 days prior to the date

of a general election, the Department of

State shall provide a written translation of

a statewide ballot issue in the language of

any language minority group specified in the

provisions of s. 203 of the Voting Rights Act

of 1965, as amended, as applicable to this

state.

Both provisions address matters that are ready for placement on

the ballot as opposed to initiatives still in the signature-

collection process. There is no requirement that the Department

address the issue of translation at an earlier point in the

process.

27. Likewise, DOS's current rule specifies that all changes

(which would include translations) to an initiative must be

submitted for review, but that only material changes must

actually be approved. Rule 1S-2.009(7) expressly defines what

constitutes a material change, and translation of an initiative

where the English version has been approved previously is not

listed as a material change. Therefore, the statement on the DOS

website is consistent with the existing rule.

28. When the statement is viewed in context, it is clear

that it simply confirms DOS's position regarding the parameters

of its statutory responsibility, consistent with its existing

rule. The agency statement does not require compliance with any

standard, it simply states that DOS does not proof translations.

It creates no rights while adversely affecting others, and it

does not have the direct and consistent effect of law. To

require an agency to promulgate a rule in each instance where the

agency confirms that a function is beyond its responsibilities

would serve no purpose and is not contemplated by Sections

120.52(15) and 120.54(1).

CONCLUSION

Upon consideration of the facts found and conclusions of law

reached, it is

ORDERED:

That the Petition for Administrative Determination of Agency

Statement Defined as a Rule be dismissed.

DONE AND ORDERED this 25th day of January, 2007, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of January, 2007.

ENDNOTE

1/ Copies of the transcript were apparently delivered to counsel

for both parties on January 2, 2007. However, the transcript was

not filed on the docket for this case. Upon learning that the

transcript was not filed as believed, counsel for Petitioner

delivered his copy of the transcript to the Clerk's office for

duplication and filing.

COPIES FURNISHED:

Ross S. Burnaman, Esquire

1018 Holland Drive

Tallahassee, Florida 32301-4508

Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Heidi Hughes, General Counsel

Department of State 4500

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399-0250

Scott Boyd, Executive Director

and General Counsel

Joint Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code

The Elliott Building, Room 201

Tallahassee, Florida 32399-0250

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 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.