99-002061RX Jamie Hewitt, D/B/A Hewitt Mobile Home Movers; Bill Fisher, D/B/A Mobile Tech; Hudz Manufactured Housing, Inc., A Florida Corporation; Bob Uhl, D/B/A Bob Uhl Mobile Home Movers; Byrds Mobile Homes, Inc., A Florida Corporation; Et Al. vs. Department Of Highway Safety And Motor Vehicles Status: Closed DOAH Final Order on Thursday, April 27, 2000.

Summary: Petitioners failed to prove that the rules regulating the installation of manufactured homes are invalid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANUFACTURED HOUSING ASSOCIATION )

OF FLORIDA, INC.; HUDZ )

MANUFACTURED HOUSING, INC.; )

BOB UHL MOBILE HOME MOVERS; and )

JABO'S MOBILE HOME SERVICE, )

)

Petitioners, )

)

vs. ) Case No. 99- 2061RX

)

DEPARTMENT OF HIGHWAY SAFETY )

AND MOTOR VEHICLES, )

)

Respondent. )

_________________________________)

FINAL ORDER

A formal hearing was held in this case before Larry J.

Sartin, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings, on January 19 and 20, 2000,

in Tallahassee, Florida.

APPEARANCES

For Petitioners: Richard A. Lotspeich, Esquire

Albert T. Gimbel, Esquire

Messer, Caparello & Self

Post Office Box 1876

Tallahassee, Florida 32302-1876

For Respondent: Michael J. Alderman

Assistant General Counsel

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room A432

2900 Apalachee Parkway

Tallahassee, Florida 32399-0504

STATEMENT OF THE ISSUE

The issue in this case is whether Rules 15C-1.0102(4) and

(5); 15C-1.0104(1)(a) and (b), (2)(b), (3), and (4)(a) and (b),

Florida Administrative Code, constitute an invalid exercise of

delegated legislative authority.

PRELIMINARY STATEMENT

On or about May 3, 1999, a "Complaint Challenging an

Existing Administrative Rule" was filed on behalf of Jamie

Hewitt, d/b/a Hewitt Mobile Home Movers; Bill Fisher, d/b/a

Mobile Tech; Hudz Manufactured Housing, Inc.; Bob Uhl, d/b/a Bob

Uhl Mobile Home Movers; Byrds Mobile Homes, Inc.; Stanton Mobile

Home Sales, Inc.; Mike Bickerstaff, d/b/a American Mobile Home

Service; Park Brittle; Moulder and Sons, Inc.; and M & M Mobile

Homes, Inc. The Complaint was designated Case No. 99- 2061RX and

was assigned to the undersigned.

The parties waived the requirement of Section 120.55(1)(c),

Florida Statutes, that the hearing be held within 30 days of the

assignment of this matter to the undersigned. The formal

hearing was scheduled for September 21, 1999, by Notice of

Hearing entered June 2, 1999.

By Order dated June 10, 1999, a Motion to Dismiss for Lack

of Standing and Failure to State a Cause of Action under Section

120.56, Florida Statutes, filed by Respondent, was granted. The

Complaint was dismissed with leave to file an amended petition.

On June 28, 1999, Petitioners filed an Amended Petition.

Respondent was granted leave to file a motion in opposition to

the Amended Petition on or before July 29, 1999.

On July 27, 1999, a Motion to Amend Amended Petition for

Administrative Determination of Invalidity of Existing Rule was

filed. An Amended Petition for Administrative Determination of

Invalidity of Existing Rule was filed with the Motion. The

Motion was granted by an Order entered July 30, 1999. It was

noted in the Order that the Petitioners named in the Amended

Petition were different from those named in the original

"Complaint" originating this case. The style of this case

reflects the Petitioners named in the Amended Petition except

for two Petitioners who subsequently withdrew.

Respondent filed a Motion to Dismiss Second Amended

Petition within 20 days of the Order granting the Motion to

Amend Amended Petition. The Motion was granted to the extent

that the second Amended Petition alleged that the rules at issue

were invalid under Section 120.52(8)(g), Florida Statutes.

On August 2, 1999, Petitioners filed a Motion for Summary

Final Order. Respondent responded to the Motion and filed a

Cross Motion for Summary Final Order on August 9, 1999. Both

Motions were subsequently denied.

A Joint Motion for Continuance was granted by an Order

entered September 15, 1999. The formal hearing was rescheduled

for January 19 and 20, 2000.

Immediately before the commencement of the formal hearing

Respondent filed a Motion for Summary Final Order Dismissing

Proceeding for Lack of Standing. The Motion was denied at the

commencement of the formal hearing.

A Prehearing Stipulation was filed by the parties.

Stipulated findings of fact contained in the Stipulation have

been accepted in this Final Order to the extent determined

relevant.

The Petitioners who participated in the formal hearing of

this case are reflected in the style of this Final Order.

Suber's Mobile Home Movers voluntarily withdrew from this matter

during the formal hearing.

At the final hearing Petitioners presented the testimony of

William E. Fisher, Jr., Ronnie Crum, Leonard Jay Langfelder,

Bobby R. Hamilton, Nancy Roberson, and Bob Uhl. Petitioners

also offered 11 exhibits. They were accepted into evidence.

Petitioners also presented the testimony of Mr. Langfelder in

rebuttal. Two exhibits offered as rebuttal exhibits were

accepted to the extent they were determined to be rebuttal.

Respondent presented the testimony of Mohammad Mafi, John

David Parker, John Doeden, Bert Kessler, and Joseph Ferruzza.

Respondent's Exhibits 1-3 were accepted into evidence.

After Petitioners and Respondent had rested their cases-in-

chief at formal hearing, Petitioners attempted to offer two

exhibits to "rebut" the Department's case. Those exhibits

consisted of responses to interrogatories and admissions from

the Department. The responses and admissions include some

evidence concerning the rationale of the Department for adopting

the rules at issue in this case and the evidence relied upon by

the Department to support those rules. The responses and

admissions are hereby rejected. Because Petitioners had the

burden of proving that the rules at issue are arbitrary and

capricious and not supported by competent substantial evidence,

the exhibits should have been offered as part of Petitioners'

case-in-chief. They were not and, therefore, do not constitute

rebuttal.

The Transcript of the formal hearing was filed on

February 8, 2000. Proposed orders were, therefore, required to

be filed on or before February 28, 2000. On February 25, 2000,

Petitioners filed a Stipulated Extension of Time to File

Proposed Final Orders representing that the parties had agreed

to file their proposed final orders on or before March 10, 2000.

Petitioners and Respondent filed separate Proposed Recommended

Orders on March 10, 2000. Those proposed orders have been fully

considered in entering this Final Order.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, Manufactured Housing Association of

Florida, Inc. (hereinafter referred to as the "Association"), is

a Florida corporation organized for the purpose of representing

its members with regard to regulatory matters involving the

installation of mobile and manufactured homes.

2. The membership of the Association consists of

manufactured housing dealers, manufactured housing installers,

and one manufactured housing manufacturer.

3. Hudz Manufactured Housing, Inc. (hereinafter referred

to as " Hudz"), is a licensed dealer of homes. Hudz contracts

with installers for the installation of manufactured homes.

(Stipulated Facts.)

4. Bob Uhl Mobile Home Sales, Inc. (hereinafter referred

to as " Uhl"), is a licensed dealer-installer of manufactured

homes. (Stipulated Facts.)

5. Jabo's Mobile Home Services (hereinafter referred to as

" Jabo's"), is a licensed installer of manufactured homes.

(Stipulated Facts.)

6. Respondent, the Department of Highway Safety and Motor

Vehicles (hereinafter referred to as the "Department"), is

charged with the authority to regulate manufactured mobile homes

in Florida pursuant to Chapter 320, Florida Statutes.

B. Regulating the Installation of Manufactured Homes .

7. Manufactured homes are required under state and federal

law to be anchored to the ground in order to withstand a minimum

level of wind forces. Anchoring systems consist of a

combination of diagonal, vertical, longitudinal, and centerline

ties (metal straps). These metal straps are connected at one

end to the frame of the manufactured home and the I-beam which

runs the length of the home and at the other end to anchors

which are augured into the ground and held in place by

stabilizing plates. (Stipulated Facts.)

8. The requirement for some form of anchoring system has

been a part of federal regulations and state rules for many

years. (Stipulated Facts.)

9. Changes were made to the federal regulations in 1994 in

response to concerns raised about the adequacy of anchoring

systems after Hurricane Andrew struck South Florida in 1992.

These changes to the federal regulations became effective on

July 13, 1994. The federal regulations, which are administered

by the United States Department of Housing and Urban Development

(hereinafter referred to as "HUD") required that, after July 13,

1994, manufactured homes and their anchoring systems must be

designed to withstand certain wind forces depending on where the

homes are to be located. The HUD regulations establish three

wind zones in the United States: Wind Zones I, II, and III.

All of Florida is located in either Wind Zone II or III. For

manufactured homes which are to be located in Wind Zone II, the

homes and their anchoring systems must be designed to withstand

the forces of winds with a speed of 100 mph. For homes in Wind

Zone III, the homes and their anchoring systems must be designed

to withstand the forces of winds with a speed of 110 mph.

(Stipulated Facts.)

10. As a result of the destruction and deaths that were

caused by Hurricane Andrew in 1992, tornadoes that struck

central Florida in 1998, and a tornado that struck Hyde Park,

Florida, in 1998, the Department concluded that more stringent

tie down requirements were required for manufactured homes.

11. The Department adopted Chapter 15C-1 in an effort to

carry out its responsibility under Chapter 320, Florida

Statutes. Throughout the last several years, the Department has

amended these rules several times. The last amendments, which

are, in part, the subject of this proceeding, were adopted

effective March 31, 1999. (Stipulated Facts.) In particular,

the Department amended Rules 15C-1.0102(4) and (5); 15C-

1.0104(1)(a) and (b), (2)(b), (3) and (4)(a) and (b), Florida

Administrative Code (hereinafter referred to as the "Challenged

Rules"). (Stipulated Facts.)

C. Competent Substantial Evidence to Support the

Challenged Rules .

12. In the second Amended Petition, Petitioners have

alleged generally that all of the Challenged Rules constitute an

"invalid exercise of delegated legislative authority" as defined

in Section 120.52(8), Florida Statutes. In particular,

Petitioners have alleged that the all of the Challenged Rules,

except Rule 15C-1.0104(1)(a) and (b), Florida Administrative

Code, are invalid because they are "arbitrary and capricious"

and they are "not supported by competent substantial evidence."

Section 120.52(8)(e) and (f), Florida Statutes. Petitioners

have alleged that Rule 15C-1.0104(1)(a) and (b), Florida

Administrative Code, is invalid because it is "vague, fails to

establish adequate standards for agency decisions, or vest

unbridled discretion in the agency." Section 120.52(8)(d),

Florida Statutes.

13. As discussed further in the Conclusions of Law portion

of this Final Order, Petitioners had the burden of proving that

the Challenged Rules in fact constitute an invalid exercise of

delegated authority as alleged in their second Amended Petition.

14. The Challenged Rules are not "arbitrary and

capricious" on their face. Therefore, in order for Petitioners

to meet their burden of proving that the Challenged Rules are

"arbitrary and capricious," Petitioners were required to prove

what the Department's rationale for adopting the Challenged

Rules was and then offer evidence to refute the Department's

rationale. The first step in meeting this burden could have

easily been met by calling someone designated by the Department

to speak on its behalf and asking that person to explain the

Department's rationale for adopting the Challenged Rules.

Petitioners did not take this first step and the Department was

under no obligation to do so for them.

15. In order for Petitioners to meet their burden of

proving that the Challenged Rules are not supported by competent

substantial evidence, Petitioners were required to prove what

the Department relied upon in adopting the Challenged Rules and

then offer evidence to refute the competency of the evidence

relied upon by the Department. Again, the first step in meeting

this burden could have easily have been meet by calling someone

designated by the Department to speak on its behalf and asking

that person to explain what evidence the Department relied upon

in adopting the Challenged Rules. Petitioners did not take this

first step and the Department was under no obligation to do so

for them.

16. As a result of Petitioners' failure to provide the

starting point for determining whether the Challenged Rules are

arbitrary and capricious or are not supported by competent

substantial evidence, Petitioners failed to meet their burden of

proof in this case. Because the Challenged Rules are not

arbitrary and capricious on their face it cannot be concluded

that they are arbitrary and capricious without knowing the

precise reason for the adoption of the Challenged Rules.

Without knowing precisely what evidence the Department relied

upon in adopting the Challenged Rules it cannot be concluded

that they are not supported by competent substantial evidence.

17. To the extent that evidence was offered in this case

to explain the Department's rationale, at least in part, for

adopting the Challenged Rules, and to show some of the evidence

that the Department relied upon in adopting the Challenged

Rules, that evidence supported the Department's adoption of the

Challenged Rules.

D. Galvanizing; Rules 15C-1.0102(4) and (5), Florida

Administrative Code .

18. Prior to the amendment of Rule 15C-1.0102, Florida

Administrative Code, to its present form, the Rule contained no

requirement that anchors or stabilizing devices used with

manufactured homes be galvanized. (Stipulated Facts.)

19. Rule 15C-1.0102(4), Florida Administrative Code, now

provides, in pertinent part, the following:

all mobile/manufactured homes and park

trailers shall be anchored with approved auger

anchors, which shall be coated with hot-dipped

zinc galvanizing ( ASTM Standard #123-89A,

which is hereby incorporated by reference);

.60 ounces per square foot.

(Stipulated Facts.)

20. Rule 15C-1.0102(5), Florida Administrative Code, now

provides, in pertinent part, the following:

all ground anchors shall have approved

stabilizing devices approved by the

department, each of which shall be coated with

hot-dipped zinc galvanizing ( ASTM Standard

#123-89A, which is hereby incorporated by

reference); .60 ounces per square foot or zinc

coated to ASTM (A929/A 929M--96, which is

hereby incorporated by reference).

(Stipulated Facts.)

21. The process of galvanizing anchors and other tie down

components begins with the cleaning and preparation of

ungalvanized, or "black," steel. The black steel is then placed

in molten zinc.

22. Iron in black steel reacts chemically and

metallurgically with the molten zinc to form alloys of

intermetallic layers. The layer immediately next to the steel

is about 25 percent iron, the next layer is about 10 percent

iron, the next is about 5 percent iron, and the outer layer is

about 99 percent pure zinc.

23. The outer layer of zinc makes up about one fifth of

the total thickness of the coating and is soft enough to be

scratched with a coin. The inner three layers are harder and

more resistant to abrasions than the steel it coats.

24. Zinc galvanizing protects the steel from corroding.

As the zinc corrodes, it forms zinc compounds that remain in the

soil and continue to provide protection to the steel even after

the zinc is completely corroded off the steel. Thus, zinc

galvanized steel is better protected from corrosion than steel

that is not galvanized.

25. If a small gap in the zinc coating occurs, the zinc

around the gap will still protect the steel through an

electrochemical process. The gap can be up to 6 millimeters or

1/4 of an inch wide.

26. The effectiveness of galvanizing will be reduced if a

galvanized anchor strap is attached to an ungalvanized anchor.

27. According to a report prepared by the National Bureau

of Standards which included the findings of a 45-year study of

the National Bureau of Mines and Standards, the rate of

corrosion for steel varied from 2.6 times that of zinc to about

23 times that of zinc, with the average being six times that of

zinc, depending of soil conditions. In no case was it found

that the rate of corrosion of zinc was greater than the rate of

corrosion of steel regardless of the soil conditions.

28. Galvanization provides greater protection for

manufactured home anchors from corrosion than paint. Paint is

less resistant to scratching. Paint also fails to provide the

same protection than galvanization provides in the case of a

small scratch.

29. Painted anchors suffer greater scratching when driven

into the ground than galvanized anchors.

30. Galvanization will increase the structural life of

ground anchors buried into the ground.

31. Manufactured homes between five and ten years old

which were destroyed or damaged in 1998 in Hyde Park, Florida,

evidenced excessive corrosion on the anchor heads and straps

that had been used to secure the homes. These anchor heads and

straps were not galvanized.

32. The corrosion of anchor heads and straps found at Hyde

Park contributed to the failure of the heads and straps during

the storm.

33. Although no tests were performed by the Department

concerning the amount of galvanization per ounce which should be

required for augers and stabilizing devices required by Rules

15C-1.0102(4) and (5), Florida Administrative Code, the amount

of zinc required by these Rules is within the range of

reasonable mounts which the Department could have selected.

34. The evidence failed to prove that Rules 15C-1.0102(4)

and (5), Florida Administrative Code, are arbitrary and

capricious or not supported by competent substantial evidence.

E. Diagonal Tie-Downs; Rule 15C-1.0104(2)(b), Florida

Administrative Code .

35. Prior to amendment to its present form, Rule 15C-

1.0104(2), Florida Administrative Code, provided the following:

(2) Frame Ties

(a) All new manufactured homes shall be

certified and manufactured as meeting the

Department of Housing and Urban Development

Manufactured Housing Construction and Safety

Standards.

(b) New manufactured homes and park

trailers shall be anchored to the

specifications as provided by the

manufacturer.

(c) New manufactured homes and park

trailers shall be anchored to each anchor

point as required by the manufacturer's set-up

manual.

(d) Used units where the manufacturer's

specifications are not available shall be

anchored every six feet (6') with the anchors

placed within two feet (2') of each end.

(Stipulated Facts.)

36. Rule 15C-1.0104(2)(b), Florida Administrative Code,

now provides, in part, the following:

(b) Diagonal tie-downs for new and used

mobile/manufactured homes, in all wind zones,

shall be spaced no farther apart than five

feet four inches (5' 4") on center with

anchors placed within two feet (2') of each

end.

(Stipulated Facts.) Old Rules 15C-1.0104(2)(a)-(c),

Florida Administrative Code, were repealed.

37. "Frame ties" or "tie downs" are defined in the

Department's rules as "any device or method approved by the

department and used for the purpose of securing the

mobile/manufactured home or park trailer to ground anchors in

order to resist wind forces." Rule 15C-1.0101(6), Florida

Administrative Code. (Stipulated Facts.)

38. Prior to promulgating the recent change to Rule 15C-

1.0104(2), Florida Administrative Code, the Department conducted

field observations in February and March of 1998 of storm damage

from several tornadoes that passed through areas of central

Florida on February 22 and 23, 1998. (Stipulated Facts.)

39. The Department also discovered that one cause of the

damage caused to manufactured homes by Hurricane Andrew in 1992,

was the breaking of strapping used to connect anchors to the

manufactured homes.

40. The Department relied on two reports in promulgating

the change to Rule 15C-1.0104(2), Florida Administrative Code:

"The Effects of Central Florida Tornadoes on Manufactured Homes"

and "Recommendations on Manufactured Home Tie Down Components

and Methods." (Stipulated Facts.)

41. The Department concluded, based upon the reports it

relied upon and observations of damage from Hurricane Andrew and

the tornadoes in 1998, that additional diagonal tie-downs would

improve the stability of manufactured homes.

42. By reducing the space between diagonal tie-downs from

six feet to five feet, four inches the load on the straps used

to tie down a manufactured home will be distributed between more

anchors and will decrease the load on each strap. While the

evidence failed to prove that the additional tie-downs will

prevent damage to manufactured homes from all storms, the

additional tie-downs will result in meaningful additional

protection.

43. Tie-downs can reasonably be placed every five feet,

four inches on center.

44. Petitioners presented evidence concerning "overlapping

cones of influence." For an anchor placed in the ground a cone

of influence is in essence the area of dirt around the anchor

which helps support and hold the anchor down. The area of

influence is shaped like a cone, with the widest area of

influence on the surface. If anchors are placed too close

together, the area of influence of the cone at ground level will

overlap and weaken the influence of the individual cones.

45. While the cone of influence on the anchors required by

the Challenged Rules may overlap because they are to be spaced

closer than 7.35 feet apart, the evidence failed to prove that

the requirement that diagonal tie-downs be placed five feet,

four inches on center will not provide additional support. In

fact, more anchors spaced closer together will result in greater

overall support even if the cones of influence of the anchors

overlap.

46. The evidence failed to prove that Rule 15C-

1.0104(2)(b), Florida Administrative Code, is arbitrary and

capricious or not supported by competent substantial evidence.

F. Longitudinal Tie-Downs; Rule 15C-1.0104(3), Florida

Administrative Code .

47. Prior to adoption of the Challenged Rules, Chapter

15C-1, Florida Administrative Code, did not contain a separate

requirement for longitudinal tie-downs. Rule 15C-1.0104(2),

Florida Administrative Code, simply required that new

manufactured homes be anchored according to the manufacturer's

specifications. (Stipulated Facts.)

48. Rule 15C-1.0104(3), Florida Administrative Code, now

provides, in part, the following:

(3) Longitudinal Tie-downs. All new and

used mobile/manufactured homes, installed

sixty (60) days after the effective date of

this rule, must have longitudinal tie-downs or

other approved longitudinal stabilizing

systems designed to resist horizontal wind

loads in the long direction of the home (i.e.:

wind load applied to each end of the home).

The longitudinal tie-downs are in addition to

the anchoring systems required along the

exterior side walls and/or marriage walls of

the mobile/manufactured home.

(a) . . . . At least four (4) anchors and

straps are required (i.e., 16 per double-wide

home) at the end of each section of the

mobile/manufactured home.

. . . .

(Stipulated Facts.)

49. The Department's decision to amend the rule to add a

separate requirement for longitudinal tie-downs was based on

field observations of the central Florida tornado damage in

February of 1998. The Department relied on two reports as the

basis for the rule: "Recommendations on Manufactured Home Tie

Down Components and Methods," which was not offered into

evidence, and "Effects of Central Florida Tornadoes on

Manufactured Homes." (Stipulated Facts.)

50. Damage to some homes caused by the 1998 tornadoes and

Hurricane Andrew was caused by the lack of longitudinal tie-

downs.

51. Without longitudinal tie-downs, little protection is

afforded manufactured homes from winds that strike the home at

the ends of the home. Wind hitting the end of a manufactured

home can cause a "zipper" effect, where the lift at the end

pulls the first diagonal tie-down out and then, like a zipper,

the rest of the anchors are pulled out down the side of the

manufactured home.

52. Evidence concerning the impact of overlapping cones of

influence did not prove that the requirement of longitudinal

tie-downs was invalid for the same reasons it did not support

such a finding concerning diagonal tie-downs.

53. The evidence failed to prove that Rule 15C-1.0104(3),

Florida Administrative Code, is arbitrary and capricious or not

supported by competent substantial evidence.

G. Centerline Tie-Downs; Rule 15C-1.0104(4), Florida

Administrative Code .

54. Prior to amendment to its present form, Rule 15C-

1.0104(4), Florida Administrative Code, provided the following:

(a) Multiple section homes are to be

secured at the centerline with straps or cable

to the specifications in the manufacturer's

manual or at the locations designated on the

home.

(b) Used multiple section homes shall have

anchors installed at all factory installed

anchor strap connections including ridge beam

column straps, shear wall straps/attachments

or other locations designated by the

manufacturer.

(Stipulated Facts.)

55. Rule 15C-1.0104(4), Florida Administrative Code, now

provides the following:

(a) Centerline ties are required for all

new and used multiple section homes.

(b) Multiple section homes are to be

secured at the centerline with straps to the

specifications in the manufacture's manual or

at the location designated on the home. In

addition to centerline ties specified by the

manufacturer, a centerline tie must be

attached within two feet (2') of each end of

each section of the mobile/manufactured home.

Where necessary, an approved bracket shall be

added by the installer.

(Stipulated Facts.)

56. The Department's decision to amend Rule 15C-1.0104(4),

Florida Administrative Code, was based on field observations of

damage resulting from the central Florida tornadoes in February

1998. The Department also relied on two reports as the basis

for this rule: "Engineering Report by K-2 Engineering" (1998)

and "Effects of Central Florida Tornadoes on Manufactured

Homes." (Stipulated Facts.)

57. Requiring centerline ties two feet from each end of a

multi-unit home will provide additional protection against wind

damage. The tie-downs are necessary to counteract wind forces

carried to the centerline of a home by the sheer wall system.

58. The evidence failed to prove that Rule 15C-1.0104(4),

Florida Administrative Code, is arbitrary and capricious or not

supported by competent substantial evidence.

H. Anchor Lengths; Rule 15C-1.0104(1), Florida

Administrative Code .

59. Rule 15C-1.0104(1), Florida Administrative Code,

provides the following:

(a) Type I anchor holding power for homes

manufactured before July 13, 1994, shall be

tested to a working load of three thousand one

hundred and fifty (3,150) pounds, with an

ultimate load of four thousand seven hundred

twenty-five (4,725) pounds.

(b) Type II anchor holding power for new

homes manufactured after July 13, 1994, shall

be tested to a working load of four thousand

(4,000) pounds with an ultimate load of six

thousand (6,000) pounds.

(Stipulated Facts.)

60. Petitioners did not provide evidence to support a

finding that the requirements of Rule 15C-1.104(1), Florida

Administrative Code, are not clear. Any confusion about this

Rule comes from other rules which deal with when Type I or Type

II anchors are used. Those rules, however, were not challenged

by Petitioners.

61. The evidence failed to prove that Rule 15C-1.0104(1),

Florida Administrative Code, is vague, fails to establish

adequate standards for agency decisions, or vest unbridled

discretion in the agency.

I. Standing .

62. The Association was organized to represent its members

in matters involving the regulation of mobile homes and mobile

home installation. In particular, the Association has the

authority to institute this proceeding on behalf of its members

and to seek the relief requested in this case.

63. The Association has approximately 30 members that are

dealers and 12 to 15 members that are installers.

64. The cost associated with installing manufactured homes

has increased as a result of the Challenged Rules. Those costs

are passed on to consumers. The evidence failed to prove,

however, that Hudz, Uhl, or the members of the Association have

been adversely impacted by passing on the increased cost caused

by the Challenged Rules.

65. Jabo's business, which is limited to the installation

of manufactured homes, has declined as a result of increased

cost caused by the Challenged Rules.

66. While the evidence failed to prove how many of the

members of the Association have lost business as a result of the

Challenged Rules or that Hudz or Uhl have lost business as a

result of the Challenged Rules, all the Petitioners have been

required to comply with the requirements of the Challenged

Rules. The Petitioners are, therefore, substantially affected

by the Challenged Rules.

CONCLUSIONS OF LAW

A. Jurisdiction .

67. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

this proceeding. Sections 120.56(1) and (3), and 120.57(1),

Florida Statutes (1997).

B. Standing .

68. Sections 120.56(1) and (3), Florida Statues, allow any

person that is "substantially affected by an agency rule" to

institute a proceeding to determine whether the rule is "an

invalid exercise of delegated legislative authority."

69. The evidence in these cases proved that all of the

Petitioners and the members of the Association are required to

comply with the Challenged Rules. Petitioners, therefore, are

"substantially affected" by the Challenged Rules, and have

standing to institute this proceeding under Section 120.56,

Florida Statutes.

70. The Association was also required to prove that it

meets the requirements of standing required of an association.

Florida Home Builders Association v. Department of Labor , 412

So. 2d 351 (Fla. 1982). See also Department of Professional

Regulation v. Florida Dental Hygienist Association, Inc. , 612

So. 2d 646 (Fla. 1st DCA 1993). The Association did so.

C. Burden of Proof .

71. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue in a Chapter 120, Florida Statutes, proceeding. Antel v.

Department of Professional Regulation , 522 So. 2d 1056 (Fla. 5th

DCA 1988); Department of Transportation v. J.W.C. Co., Inc. , 396

So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of

Health and Rehabilitative Services , 348 So. 2d 249 (Fla. 1st DCA

1977).

72. Petitioners have asserted that the Challenged Rules

are invalid. Petitioners, therefore, had the burden of proving

the invalidity of the Challenged Rules. See St. Johns River

Water Management District v. Consolidated- Tomoka Land Co. , 717

So. 2d 72 (Fla. 1st DCA 1998), rev. denied , 727 So. 2d 904 (Fla.

1999). No statutory directory to the contrary applies in this

case.

D. Petitioners' Challenge .

73. An "invalid exercise of delegated legislative

authority" is defined in Section 120.52(8), Florida Statutes, as

"action which goes beyond the powers, functions, and duties

delegated by the Legislature." In particular, an existing rule

will be considered an "invalid exercise of delegated legislative

authority" if any one or more of the following apply:

(a) The agency has materially failed to

follow the applicable rulemaking procedures or

requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required by

s. 120.54(3)(a)1;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or vest

unbridled discretion in the agency;

(e) The rule is arbitrary or capricious;

(f) The rule is not supported by competent

substantial evidence; or

(g) The rule imposes regulatory costs on the

regulated person, county, or city which could be

reduced by the adoption of less costly

alternatives that substantially accomplish the

statutory objectives.

74. Petitioners have alleged that all of the Challenged

Rules except Rules 15C-1.0104(1)(a) and (b), Florida

Administrative Code, are an invalid exercise of delegated

legislative authority as defined in Sections 120.52(8)(e) and

(f), Florida Statutes.

75. Petitioners have alleged that Rules 15C-1.0104(1)(a)

and (b), Florida Administrative Code, are an invalid exercise of

delegated legislative authority as defined in Section

120.52(8)(d), Florida Statutes.

76. Petitioners also challenged Rule 15C-1.0107(4)(c),

Florida Administrative Code, in the second Amended Petition.

The parties subsequently stipulated, however, that Rule 15C-

1.0107(4)(c), Florida Administrative Code, "constitutes a valid

exercise of delegated legislative authority."

77. Finally, Petitioners have argued that the Challenged

Rules are invalid because they are "contrary to the intent of

the Congress and preempted by the express provisions of 42

U.S.C. Section 5403(d)."

E. Federal Preemption .

78. Petitioners have cited no Florida statute or rule

which authorizes the invalidation of an existing agency rule for

any reason other than a determination that the rule is an

"invalid exercise of delegated legislative authority."

79. The definition of an "invalid exercise of delegated

legislative authority" contained in Section 120.52(8), Florida

Statutes, does not authorize the invalidation of an existing

agency rule based upon Federal preemption. Nor have Petitioners

provided any argument to support a conclusion that Federal

preemption can constitute an "invalid exercise of delegated

legislative authority."

80. The Challenged Rules cannot be declared invalid

because of alleged Federal preemption of the areas covered by

the Challenged Rules.

F. The Department's Statutory Duty .

81. The Challenged Rules were adopted by the Department

pursuant to the authority of Section 320.8325(2), Florida

Statutes.

82. Section 320.8325(2), Florida Statutes, authorizes the

Department to promulgate rules and regulations setting forth

uniform minimum standards for the manufacture and installation

of anchors, tie-downs, over-the-roof ties, or other reliable

methods of securing mobile homes or park trailers when over-the-

roof ties are not suitable due to factors such as unreasonable

cost, design of the mobile home or park trailer, or potential

damage to the mobile home or park trailer. (Stipulated

Conclusion of Law). The Challenged Rules have been adopted

consistent with this authority.

G. Arbitrary and Capricious and Competent Substantial

Evidence .

83. A rule is considered arbitrary if it is not supported

by logic or reason; it is capricious if it is irrational and not

supported by reason. Agrico Chemical Company v. Department of

Environmental Regulation , 365 So. 2d 759, 763, (Fla. 1st DCA

1978), cert . denied , 376 So. 2d 74 (Fla. 1979).

84. The issue of "competent substantial evidence" in the

context of determining the validity of an agency rule, is new.

There is, therefore, little in the way of case law dealing with

the standard.

85. The terms have been interpreted in the context of

appellate review to mean the following:

Competent substantial evidence has been defined

as such evidence as a reasonable person would

accept as adequate to support a conclusion.

Agrico Chemical Co. at 74. See De Groot v. Sheffield ,

95 So. 2d 912, 916 (Fla. 1957). See also City of

Deerfield Beach v. Vaillant , 419 So. 2d 624 (Fla. 1982);

and Department of Highway Safety and Motor Vehicles v.

Favino , 667 So. 2d 305 (Fla. 1st DCA 1995).

86. Guidance as to the extent of evidence a reasonable

person would accept as adequate to support a finding that

competent substantial evidence exists can also be found in

interpretations of the terms "competent substantial evidence" as

used in Section 120.57(1)(j), Florida Statutes:

The agency may not reject the hearing officer's

finding unless there is no competent substantial

evidence from which the finding could not

reasonably be inferred. The agency is not

authorized to weigh the evidence presented,

judge the credibility of witnesses, or otherwise

interpret the evidence to fit its desired

conclusion.

Heifetz v. Department of Business Regulation , 475 So. 2d

1277 (Fla. 1st DCA 1985).

87. Determining whether there is a lack of competent

substantial evidence to support an agency rule places

Administrative Law Judges in virtually the same position as a

reviewing court in certiorari or an agency reviewing an

Administrative Law Judge's findings of fact.

88. The determination of whether the Challenged Rules are

arbitrary and capricious, and whether there is no competent

substantial evidence to support the Challenged Rules is clear in

this case. Petitioners simply failed to meet their burden of

proof.

89. Petitioners' proposed conclusions of law in support of

their argument that the Challenged Rules are arbitrary and

capricious and that there is no competent substantial evidence

to support the Challenged Rules primarily concern the evidence

that Petitioners argue the Department failed to present.

Petitioners' proposed conclusions of law, if they were correct,

would support Petitioners' position only if the burden of proof

in this matter were on the Department. It was not, however.

90. As concluded, supra , the burden of proof in this case

was on Petitioners. Therefore, in order for Petitioners to

prove that the Challenged Rules are arbitrary and capricious,

Petitioners were required to prove that the Challenged Rules are

not supported by logic or reason and that they are irrational.

In order for Petitioners to prove that the Challenged Rules are

not supported by competent substantial evidence, Petitioners

were required to prove that there is no evidence a reasonable

person would accept as adequate to support the Challenged Rules.

91. In order to prove the lack of reason and evidence to

support the Challenged Rules, Petitioners, not the Department,

were required to present evidence at hearing concerning the

Department's rationale for the Challenged Rules and the evidence

the Department believes supports the Challenged Rules. Simply

calling witnesses with no involvement in the adoption of the

Challenged Rules and asking them whether they know of any

rationale and evidence the Department could have relied upon in

adopting the Challenged Rules does not meet Petitioners' burden

of proof. Nor was such proof sufficient to require the

Department to respond by explaining its rationale or the

evidence that supports the Challenged Rules.

92. Based upon the foregoing, Petitioners failed to prove

that the Challenged Rules are arbitrary and capricious or that

there is not competent substantial evidence to support them.

93. Although not required to do so, the Department did

provide some evidence concerning its rationale for adopting the

Challenged Rules and the evidence that supports them. That

evidence was sufficient to prove that there was in fact logic or

reason to support the Challenged Rules, that they are rational,

and that there is evidence a reasonable person would accept as

adequate to support the Challenged Rules.

H. Vagueness, Adequacy of Standards, and Discretion .

94. A rule is vague or fails to establish adequate

standards for agency decisions when the terms of the rule are so

vague that persons of common intelligence must guess as to the

rule's meaning. See Department of Health and Rehabilitative

Services v. Health Care and Retirement Corporation , 593 So. 2d

539 (Fla. 1st DCA 1992).

95. There is nothing complicated or vague about Rules 15C-

1.0104(1)(a) and (b), Florida Administrative Code.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that Petitioners failed to prove that Rules 15C-

1.0102(4) and (5), 15C-1.0104(1)(a) and (b), (2)(b), (3), and

(4)(a) and (b), Florida Administrative Code, constitute an

invalid exercise of delegated legislative authority. The

Amended Petition for Administrative Determination of Invalidity

of Existing Rule filed in this case is, therefore, DISMISSED.

DONE AND ORDERED this 27th day of April, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

LARRY J. SARTIN

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 27th day of April, 2000.

COPIES FURNISHED:

Richard A. Lotspeich, Esquire

Albert T. Gimbel, Esquire

Messer, Caparello & Self

Post Office Box 1876

Tallahassee, Florida 32302-1876

Michael J. Alderman, Assistant General Counsel

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room A432

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Carroll Webb

Executive Director and General Counsel

Joint Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

Fred O. Dickinson, III, Executive Director

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Enoch Jon Whitney, General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a second copy,

accompanied by filing fees prescribed by law, with the District

Court of Appeal, First District, or with the District Court of

Appeal in the appellate district where the party resides. The

Notice of Appeal must be filed within 30 days of rendition of

the order to be reviewed.