84-000381RX Florida Society Of Professional Land Surveyors, Et Al. vs. Board Of Professional Engineers Status: Closed DOAH Final Order on Thursday, March 22, 1984.

Summary: In rulemaking authority to an agy in several narrowly defined areas, a more generalized rulemaking authority should not be granted by implication; invld

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ASSOCIATION OF PROFESSIONAL )

LAND SURVEYORS, et al., )

)

Petitioner, )

)

vs. ) CASE NO. 84-0381RP

)

DEPARTMENT OF PROFESSIONAL REGULATION, )

BOARD OF PROFESSIONAL ENGINEERS, )

)

Respondent. )

_______________________________________)

FINAL ORDER

Pursuant to a Joint Stipulation between the parties, dated February 23,

1984, this cause came on before the Hearing Officer to determine the validity of

Proposed Rule 21H-18.11(4) Florida Administrative Code.

APPEARANCES

For Petitioner: Mallory E. Horne, Esquire

Post Office Box 1140

Tallahassee, Florida 32302

For Respondent: John J. Rimes, III, Esquire

Assistant Attorney General

Department of Legal Affairs

Room LL04, The Capitol

Tallahassee, Florida 32301

By Petition filed with the Division of Administrative Hearings on January

30, 1984, Petitioners, Florida Association of Professional Land Surveyors, Buel

Harper, and Robert A. (Buddy) Bannerman ("Petitioners"), challenged the validity

of Proposed Rule 21H-18.11(4), Florida Administrative Code, which has been

proposed for adoption by the Department of Professional Regulation, Board of

Professional Engineers ("Respondent"). By Joint Stipulation, dated February 23,

1984, which will be hereinafter set forth in its entirety in the Findings of

Fact section of this order, the parties waived their right to a formal

evidentiary hearing, and agreed to submit memoranda for consideration by the

Hearing Officer. This Joint Stipulation has been marked by the Hearing Officer

as Hearing Officer's Exhibit No. 1. By virtue of the Joint Stipulation, there

are no disputed issues of fact involved in this proceeding.

FINDINGS OF FACT

1. By Joint Stipulation, dated February 23, 1984, Petitioners and

Respondent agreed as follows:

1. That those facts in the Petition To

Determine The Invalidity Of A Proposed

Rule which support the Petitioners

standing to bring a Chapter 120.54(A),

Florida Statute [sic] rule challenge

are correct and are sufficient to

establish said standing.

2. The notice of the proposed rule and

the rule itself first published in

Volume 10, Number 2, Florida Adminis-

trative Weekly, are hereby stipulated

into evidence as forming the basis

of the matter in controversy in this

cause.

3. The issues set forth in the Petition

To Determine The Invalidity Of A

Proposed Rule as to whether the

Respondent has the authority to

promulgate the rule in question form

the sole basis of controversy.

Respondent and Petitioners have

agreed to submit simultaneous memo-

randa of law in support of their

respective positions. The memoranda

shall be filed on or before March 19,

1984.

The Hearing Officer shall then have

thirty (30) days in which to render

his final order in this cause.

2. Respondent has proposed for adoption Rule 21H-18.11(4) Florida

Administrative Code, which provides as follows:

The term "Engineering Survey" as

used in Section 471.005(4)(a), F.S.,

is defined as surveys made to obtain

data for planning, design, and execution

of engineering projects or developments;

and may be necessary for the planning,

progress, and completion of any

engineering services. These surveys

include, but are not limited to, con-

struction layout, topographic surveys,

hydrographic surveys, quantity surveys,

and special purpose surveys to the

extent that all the aforementioned

surveys relate to engineering services.

3. Respondent has asserted as the specific authority for, and law

implemented by, the proposed rule only Section 471.005(4)(a), Florida Statutes.

4. In summarizing the purpose and effect of the proposed rule in its

notice published in the Florida Administrative weekly, Respondent pointed out

that:

The proposed rule essentially codifies

previous rulings of the joint Board of

Professional Engineers and Land Sur-

veyors as it existed prior to 1979 and

further amplifies generally accepted

types of "surveying" which are nationally

accepted as being capable of being per

formed by qualified professional engineers.

5. Further, including in its notice that the proposed rule would have

minimal economic impact on Florida engineering practice, Respondent concluded

that:

. . . This estimate is based upon the

fact that the definition of "engineering"

in Ch. 471, F.S. has not been changed

for several decades and various rulings

of the Board of Professional Engineers

and Land Surveyors (prior to 1979) as

well as nationally accepted demarcations

between those areas which are solely the

practice of professional engineering and

those of land surveyoring [sic] which

have been followed in the State of

Florida permit the overlap of functions

between those individuals licensed under

Ch. 471 and Ch. 472, F.S., to the extent

set forth in the proposed rule.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, this proceeding. Section 120.54(4),

Florida Statutes.

7. Section 120.54(14), Florida Statutes, provides in part, that ". . .

[n]o agency has inherent rulemaking authority. . . ." In 4245 Corporation v.

Division of Beverage, 371 So.2d 1032, 1033 (Fla. 1st DCA 1978), the court quoted

with approval the following general rule:

The rulemaking authority which

the legislature may validly delegate to

administrative agencies must be and is

limited by the statute conferring the

power. Administrative agencies, when

empowered to do so, may make and enforce

regulations to carry out powers defi-

nitely conferred on them, but they are

not permitted to do more. The legis-

lature cannot clothe them with more,

and neither may they assume to do more.

While an administrative agency may

regulate, it may not legislate unless

so authorized by the Constitution.

Its power to adopt rules and regula-

tions is limited to the yardstick laid

down by the legislature . . . .

(Original emphasis.)

8. Here, Respondent has advanced as both the authority for, and law

implemented by, the proposed rule, Section 471.005(4)(a), Florida Statutes,

which provides, in pertinent part, that:

`Engineering' includes the term `Profes-

sional engineering' and means any service

or creative work, the adequate performance

of which requires engineering education,

training, and experience, and the appli-

cation of special knowledge of the

mathematical, physical, and engineering

sciences to such services or creative

work as . . . engineering surveys.

(Emphasis added.)

9. Section 471.005(4)(a), Florida Statutes, contains no specific

legislative grant of rulemaking authority. Indeed, the only rulemaking

authority conferred upon Respondent by the legislature in Chapter 471 is

contained in Sections 471.011, authorizing the establishment of fees; 471.013,

authorizing review and approval of schools or colleges offering courses of study

in engineering; 471.019, authorizing Respondent to prescribe by rule continuing

education requirements for reactivating a license; 471.025, authorizing

Respondent to prescribe by rule a form of seal to be used by registrants; and,

471.033(2), authorizing Respondent to specify by rule the acts or omissions

which constitute a violation of Section 471.033(1). Section 471.033(1), Florida

Statutes, relates exclusively to grounds for disciplinary action which may be

taken by Respondent against licensees. Respondent's proposed rule does not

purport to specify acts or omissions of licensees that would constitute grounds

for disciplinary action. Instead, the rule, on its face, purports to refine and

interpret the legislatively enacted provisions of Section 471.005(4)(a), Florida

Statutes, and to "codify previous rulings of the joint Board of Professional

Engineers and Land Surveyors as it existed prior to 1979." Respondent's action

might be sustainable if, as in Florida Beverage Corporation v. Wynne, 306 So.2d

200 (Fla. 1st DCA 1975) its enabling legislation had entitled it to "make such

rules and regulations as may be necessary to carry out the provisions of this

Act." In such a situation, Florida law is well settled that the validity of

regulations promulgated under such a broad grant of authority will be sustained

so long as they are reasonably related to the purpose of the enabling

legislation. Here, however, unlike Wynne, there is no such broad rulemaking

authority, and further no specific rulemaking authority to support the proposed

rule. See, Department of Health and Rehabilitative Services v. Florida

Psychiatric Society, Inc., 382 So.2d 1280, 1284 (Fla. 1st DCA 1980). This

conclusion is buttressed by the well-established rule of statutory construction

that "[w]hen what is expressed in a statute is creative. . . , it is exclusive,

and the power exists only to the extent plainly granted . . . ." 2A Sutherland,

Statutory Construction, Section 47.23 (4th ed. 1973) Where, as here, the

legislature has delegated rulemaking authority to an agency in several narrowly

defined areas, a more generalized rulemaking authority should not be deemed

conferred by implication. See, Department of Administration v. Albanese, Case

Number AR-108 (Fla. 1st DCA, February 13, 1984).

Accordingly, based upon the foregoing Findings of Fact and Conclusions of

Law, it is Specifically concluded that Respondent's Proposed Rule 21H-18.11(4),

Florida Administrative Code, constitutes an invalid exercise of delegated

legislative authority.

DONE AND ENTERED this 22nd day of March, 1984, at Tallahassee, Florida.

___________________________________

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings

Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of March, 1984.

COPIES FURNISHED:

Mallory E. Borne, Esquire Liz Cloud, Chief

Post Office Box 1140 Bureau of Administrative Code

Tallahassee, Florida 32302 Department of State

Suite 1802, The Capitol

John J. Rimes, III, Esquire Tallahassee, Florida 32301

Assistant Attorney General

Department of Legal Affairs

Room LL04, The Capitol

Tallahassee, Florida 32301

Carroll Webb, Executive Director

Joint Administrative Procedures

Committee

120 Holland Building

Tallahassee, Florida 32301

Fred M. Roche, Secretary

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32301

Allen R. Smith, Jr., Executive Director

Board of Engineers

Department of Professional Regulation

130 North Monroe Street

Tallahassee, Florida 32301