92-006935RP Robbie Stadium Corporation vs. Department Of Commerce Status: Closed DOAH Final Order on Thursday, March 25, 1993.

Summary: Challenged portions of proposed rules 8E-4.003 and 8E-4.005 are invalid excercises of delegated legislative authority for several reasons discussed in order.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBBIE STADIUM CORPORATION, )

a Florida corporation, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6935RP

)

DEPARTMENT OF COMMERCE, )

DIVISION OF ECONOMIC DEVELOPMENT, )

)

Respondent. )

___________________________________)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case on December 22,

1992, at Tallahassee, Florida, before Michael M. Parrish, a duly designated

Hearing Officer of the Division of Administrative Hearings. Appearances at the

hearing were as follows:

APPEARANCES

For Petitioner: H. Lee Moffitt, Esquire

Mark Herron, Esquire

E. Gary Early, Esquire

Akerman, Senterfitt & Eidson, P.A.

Post Office Box 10555

Tallahassee, Florida 32302-2555

For Respondent: William S. Stevens III, Esquire

Office of the General Counsel

Department of Commerce

Collins Building, Room 535

107 West Gaines Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue for resolution in this case is whether Proposed Rules 8E-

4.003(3), (4), (9), (10) & (11) and Proposed Rule 8E-4.005 constitute invalid

exercises of delegated legislative authority as asserted by Petitioner.

PRELIMINARY STATEMENT

Prior to the formal hearing in this case, the parties entered into a Joint

Stipulation of Standing and a Joint Prehearing Stipulation. At the formal

hearing, the Petitioner submitted the deposition testimony of Greg Farmer,

Secretary of the Department of Commerce, and William S. Stevens III, General

Counsel for the Department of Commerce, who was identified by the Department as

a designated agency representative. The deposition testimony was submitted by

stipulation of the parties in lieu of live testimony. The Respondent called no

witnesses. Petitioner introduced into evidence exhibits A through W, which were

admitted by stipulation and without objection by Respondent. Respondent offered

no independent exhibits as evidence.

A transcript of the hearing was filed with the Hearing Officer on January

7, 1993, and thereafter, all parties filed proposed final orders containing

proposed findings of fact and conclusions of law. All of the parties' post

hearing submissions have been carefully considered during the preparation of

this Final Order. Specific rulings on all proposed findings of fact proposed by

all parties are contained in the appendix to this Final Order.

FINDINGS OF FACT

Findings based on written stipulations.

1. On September 11, 1992, Petitioner submitted an application for

certification as a "facility for a new professional sports franchise."

2. Petitioner's application contains the information required by Section

288.1162(4)(a)-(g), Florida Statutes, but does not demonstrate that eligible

costs for which funding is being sought pursuant to Section 212.20, Florida

Statutes, are for costs incurred after the award of the new professional sports

franchise or after the start of certification, as required in Proposed Rule 8E-

4.003(3).

3. Due to the effect of the proposed rule on Petitioner, Petitioner is a

"substantially affected person" as that term is used in Section 120.54(4)(a),

Florida Statutes.

Findings based on evidence at hearing.

4. On October 30, 1992, the Department of Commerce published Proposed Rule

8E-4 in the Florida Administrative Weekly. Portions of that proposed rule are

the subject of this rule challenge proceeding. The full text of the proposed

rule (with the challenged portions underscored) is as follows:

8E-4.001 Purpose. This rule contains the

procedure for applying for certification

pursuant to s. 288.03, Florida Statutes.

8E-4.002 Application Procedures. An

application for certification under s. 288.03,

Florida Statutes, as a "Facility For A New

Professional Sports Franchise" or a "New

Spring Training Franchise Facility" shall be

submitted to the Secretary of Commerce and

shall comply with and conform to the following

requirements:

(1) An original and 5 copies shall be

submitted.

(2) Applicants shall be a "unit of local

government" as defined in s. 218.369, Florida

Statutes, or a private sector group that has

contracted to construct or operate a

professional sports franchise facility on land

owned by a unit of local government. The

application must be signed by an official

senior executive of the applicant.

(3) Items or forms requiring certification

shall be notarized according to Florida Law

providing for penalties for falsification.

8E-4.003 Application Contents. An application

for certification as a Facility for New

Professional Sports Franchises shall include

the following:

(1) Documentation that the franchise team

meets the following requirements:

(a) The franchise is not based in Florida

prior to July 1, 1990.

(b) The applicant has a signed agreement with

a new professional sports franchise for the

use of the facility for at least 5 years or

more.

(c) The new professional sports franchise

agreement has been approved by one of the

following leagues:

National League (baseball)

American League (baseball)

National Basketball Association

National Football League

National Hockey League

(2) An independent analysis or study which

demonstrates that the use and operation of the

professional sports franchise facility will

generate revenues on transactions at the

facility of $2 million or more annually by

taxes imposed under Part I of Chapter 212,

Florida Statutes.

(3) Documentation of the actual cost or cost

estimate for new construction, reconstruction,

or renovation of the facility. Such

documentation of cost shall be for

construction, reconstruction, or renovation of

the facility incurred or to be incurred after

the award of the new professional sport

franchise or after the start of certification.

Eligible costs also include those incurred

after July 1, 1990 and prior to the granting

of a franchise where the costs were a

necessary part of the competitive process for

the awarded franchise.

(4) The applicant shall provide a

commencement date upon which new construction,

reconstruction, or renovation began or will

begin.

(5) Projections demonstrating that the new

franchise will attract a paid attendance of

more than 300,000 annually. All data sources

and methodologies of the projections must be

included.

(6) Documentation that the municipality in

which the facility is located, or the county

if the facility is in an unincorporated area,

has certified by resolution after a public

hearing that the application serves a public

purpose.

(7) Documentation that a unit of local

government as defined in s. 218.369, Florida

Statutes, is responsible for the construction,

management, or operation of the professional

sports franchise facility, or holds title to

the property on which the professional sports

franchise facility is located.

(8) Documentation that the applicant has

demonstrated that it has provided, is capable

of providing, or has a financial or other

commitments to provide more than one-half of

the costs incurred or related to the

improvement and development of the facility.

(9) Statement certifying that applicant will

comply with s. 288.1167, Florida Statutes,

relating to requirements for minority

participation.

(10) Documentation of the applicant's

organization structure and principals.

(11) Applicants that are private sector

groups shall file a public entity crime

affidavit as required by s. 287.133(3)(a),

Florida Statutes.

8E-4.004 Application Contents. An application

for certification as a New Spring Training

Franchise shall include the following:

(1) Documentation that the baseball team

franchise meets the following requirements:

(a) The franchise is not based in Florida

prior to July 1, 1990.

(b) The applicant has a signed agreement with

a new professional sports franchise for the

use of the facility for a term of at least 15

years.

(c) The agreement is approved by either the

National League or the American League of

professional baseball.

(2) Projections which demonstrate that the

new professional baseball spring training

facility will attract a paid attendance of at

least 50,000 annually.

(3) Documentation of the actual cost or cost

estimate for new construction, reconstruction,

or renovation of the facility. Such

documentation of cost shall be for

construction, reconstruction, or renovation of

the facility incurred or to be incurred after

the grant of certification. Eligible costs

also include those incurred after July 1, 1990

and prior to the granting of a franchise where

the costs were a necessary part of the

competitive process for the awarded franchise.

(4) The applicant shall provide a

commencement date upon which new construction,

reconstruction, or renovation began or will

begin.

(5) Documentation that a unit of local

government as defined in s. 218.369, Florida

Statutes, is responsible for the construction,

management, or operation of the professional

sports franchise facility, or holds title to

the property on which the professional sports

franchise facility is located.

(6) Documentation that the applicant has

demonstrated that it has provided, is capable

of providing, or has financial or other

commitments to provide more than one-half of

the costs incurred or related to the

improvement and development of the facility.

(7) Documentation that the New Spring

Training Franchise Facility is located in a

county that is levying a tourist development

tax pursuant to s. 125.0104(3)(b),(c),(d) and

(l), Florida Statutes, at the rate of 4

percent by March 1, 1992, and 87.5 percent of

the proceeds from such tax are dedicated for

the construction of a spring training complex.

(8) A site map and certification that the

facility is located within 20 miles of an

interstate or other limited access highway

system.

(9) Statement certifying that applicant will

comply with s. 288.1167, Florida Statutes,

relating to requirement for minority

participation.

(10) Documentation of the applicant's

organization structure and principals.

(11) Applicants that are private sector

groups shall file a public entity crime

affidavit as required by s. 287.133(3)(a),

Florida Statutes.

8E-4.005 Application Processing.

(1) The Department of Commerce shall certify

applications only after these rules have been

published in the Florida Administrative Weekly

and all requested public hearings have been

held. Subsequent to this, the Department

shall have two weeks following receipt of an

application to notify an applicant of any

deficiencies in an application. The

Department will allow 30 days from the date

of notification for the applicant to correct

any such deficiencies.

(2) Upon determining that an applicant is or

is not certifiable, the Secretary of Commerce

will notify the applicant by means of an

official letter of his status. If

certifiable, the Secretary will notify the

Executive Director of the Department of

Revenue of such certification by means of an

official letter. If the Department of

Commerce determines that the applicant

satisfies all the conditions of Section

288.1162, F.S., and this rule, certification

shall be issued by the Department of Commerce

no sooner than, either the date of

commencement as provided by the applicant in

8E-4.003(5) or 8E-4.004(5) or 120 days

following receipt of application under this

rule whichever is the longer. No

certification shall be issued until the

Department of Commerce has verified that

actual construction, reconstruction, or

renovation has commenced. The Department of

Revenue will begin distributing funds 60 days

following certification, but no such

distribution may be made prior to July 1,

1992, pursuant to s. 288.03, Florida Statutes.

5. If and when the above-quoted proposed rule becomes an effective rule,

the Department of Commerce intends to apply the provisions of the subject

proposed rule in the course of determining whether to grant or deny the

Petitioner's application for certification as a "facility for a new professional

sports franchise."

6. The Department of Commerce intends for the language in Proposed Rule

8E-4.003(3) and (4) to limit funding under the applicable statute to new

facility construction costs or to costs of renovation of an existing facility.

The Department intends to disallow the use of grant funds for existing stadium

construction costs, even if such costs were expended to facilitate the future

recruitment of a "new professional sports franchise." The new requirements for

certification contained in Proposed Rule 8E-4.003 are considered by the

Department to be substantive in nature.

7. The purpose of the funding program created pursuant to Sections

288.1162 and 212.20, Florida Statutes (1991), is to encourage the recruitment of

professional sports franchises to Florida.

8. During the 1992 session of the Florida Legislature, amendments were

proposed to Section 288.1162, Florida Statutes (1991), which would have had the

effect of limiting funding under the program to a reimbursement of costs of new

construction. In Senate Bill 216-H, the Legislature proposed authorizing the

Department to require that information be submitted regarding

cost estimates verified by the Department for

the new construction, reconstruction or

renovation of the facility. This estimate

shall include the costs of debt service on,

or the costs to fund debt service reserve

funds, costs for arbitrage rebate obligations,

and other costs payable with respect to, bonds

issued for the new construction,

reconstruction or renovation of the facility.

(e.s)

The amendments proposed in Senate Bill 216-H would have eliminated as an

approved use of the funds payment of costs of refinancing construction bonds and

would have limited the use of funds only to newly incurred costs. In addition,

the proposed bill provided that

upon certification of an applicant, the

Department shall also certify to the

Department of Revenue the amount to be paid

monthly to the applicant. In the case of a

professional sports franchise facility, such

amount shall be the lesser of $166,667 per

month for a 30 year period, or the costs of

the project verified by the Department

pursuant to paragraph (4)(g) [which is the

language cited directly above] and amortized

over a 30 year period.

The statutory limitation proposed by Senate Bill 216-H is consistent with, if

not identical to, the limitation intended by the Department of Commerce through

the promulgation of Proposed Rule 8E-4. Senate Bill 216-H failed to be enacted

into law.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction over the

subject matter of and the parties to this proceeding. Sections 120.54 and

120.57, Florida Statutes.

10. Pursuant to stipulation of the parties and by virtue of the fact that

the Petitioner is an applicant for certification as a "facility for a new

professional sports franchise," Petitioner is a substantially affected person as

that term is used in Section 120.54(4)(a), Florida Statutes, and, therefore, has

standing to maintain this action.

11. In 1988, the Florida Legislature created a mechanism by which

applicants could receive state funding

for the public purpose of paying capital and

other costs in connection with the use of the

professional sports franchise facility and the

location or relocation of a professional

sports franchise.

Section 288.1162(3), Florida Statutes (1989). The legislative program, codified

as Sections 288.1162 through 288.1165, Florida Statutes (1989), authorized the

Department of Commerce to "develop rules for the receipt and processing of

applications for funding pursuant to 288.1164" and provided that "such rules

shall require as a minimum that an application include the information set forth

in this subsection...." (e.s.)

12. The 1988 funding program was contingent upon legislative approval of

the professional sports franchise project and specific approval of a level of

funding to be provided to any eligible applicant certified pursuant to the Act.

See, Section 288.1164, Florida Statutes (1989).

13. The method of funding authorized by the 1988 Legislature contained a

variable, as opposed to a fixed, level of funding based upon the approved

professional sports facility sales tax revenues. The program provided that "no

governmental entity shall receive more than $2 million in any state fiscal year"

and provided that the Professional Sports Facility Sales Tax Revenues were to be

transferred to units of local government in monthly installments "for a period

not to exceed thirty years...." (e.s.) Section 288.1164, Florida Statutes

(1989). The program also provided that any professional sports franchise

facility receiving funding, which generated a net after tax profit, would be

obligated to refund a portion of the state grant money to the state in an amount

equal to the net after tax profit. Section 288.1164, Florida Statutes (1989).

14. In 1991, the Legislature passed Senate Bill 2040, which substantially

amended the provisions of Section 288.1162, Florida Statutes, repealed the

provisions of Section 288.1164, Florida Statutes, and created Section

212.20(6)(g)4.

15. Section 288.1162, Florida Statutes (1991), now serves as the exclusive

mechanism for certification of applicants as a "facility for a new professional

sports franchise." Section 288.1162, Florida Statutes (1991), reads as follows:

(1) The Department of Commerce shall serve as

the state agency for screening applicants for

state funding pursuant to s. 212.20 and for

certifying an applicant as a "facility for a

new professional sports franchise" or a "new

spring training franchise facility."

(2) The Department of Commerce shall develop

rules for the receipt and processing of

applications for funding pursuant to s.

212.20.

(3) As used in this section, the term "new

professional sports franchise" means a

professional sports franchise that is not

based in this state prior to July 1, 1990.

(4) Prior to certifying an applicant as a

"facility for a new professional sports

franchise", the Department of Commerce must

determine that:

(a) A "unit of local government" as defined

in s. 218.369 is responsible for the

construction, management, or operation of the

professional sports franchise facility or

holds title to the property on which the

professional sports franchise facility is

located.

(b) The applicant has a verified copy of a

signed agreement with a new professional

sports franchise for the use of the facility

for a term of at least 5 years.

(c) The applicant has a verified copy of the

approval from the governing authority of the

league in which the professional sports

franchise exists authorizing the location of

the professional sports franchise in this

state after July 1, 1990. The term "league"

means the National League or the American

League of Major League Baseball, the National

Basketball Association, the National Football

League, or the National Hockey League.

(d) The applicant has projections, verified

by the Department of Commerce, which

demonstrate that the new professional sports

franchise will attract a paid attendance of

more than 300,000 annually.

(e) The applicant has an independent analysis

or study, verified by the department, which

demonstrates that the amount of the revenues

generated by the taxes imposed under part 1 of

chapter 212 with respect to the use and

operation of the professional sports franchise

facility will equal or exceed $2 million

annually.

(f) The municipality in which the facility

for a new professional sports franchise is

located, or the county if the facility for a

new professional sports franchise is located

in an unincorporated area, has certified by

resolution after a public hearing that the

application serves a public purpose.

(g) The applicant has demonstrated that it

has provided, is capable of providing, or has

financial or other commitments to provide more

than one-half of the costs incurred or related

to the improvement and development of the

facility.

(5) As used in this section, the term "new

spring training franchise" means a spring

training franchise that is not based in this

state prior to July 1, 1990.

(6) Prior to certifying an applicant as a

"new spring training franchise facility," the

Department of Commerce must determine that:

(a) A "unit of local government" as defined

in s. 218.369 is responsible for the

construction, management, or operation of the

new spring training franchise facility or

holds title to the property on which the new

spring training franchise facility is located.

(b) The applicant has a verified copy of a

signed agreement with a new spring training

franchise for the use of the facility for a

term of at least 15 years.

(c) The applicant has a financial commitment

to provide 50 percent or more of the funds

required by an agreement for the use of the

facility by the new spring training franchise.

(d) The proposed facility for the new spring

training franchise is located within 20 miles

of an interstate or other limited-access

highway system.

(e) The applicant has projections, verified

by the Department of Commerce, which

demonstrate that the new spring training

franchise facility will attract a paid

attendance of at least 50,000 annually.

(f) The new spring training franchise

facility is located in a county that is

levying a tourist development tax pursuant to

s. 125.0104(3)(b), (c), (d), and (l), at the

rate of 4 percent by March 1, 1992, and 87.5

percent of the proceeds from such tax are

dedicated for the construction of a spring

training complex.

(7) An applicant certified as a facility for

a new professional sports franchise or as a

new spring training franchise facility may use

funds provided pursuant to s. 212.20 only for

the public purpose of paying for the

construction, reconstruction, or renovation of

a facility for a new professional sports

franchise or new spring training franchise

facility or to pay or pledge for the payment

of debt service on, or to fund debt service

reserve funds, arbitrage rebate obligations,

or other amounts payable with respect to,

bonds issued for the construction,

reconstruction, or renovation of such facility

or for the reimbursement of such costs or the

refinancing of bonds issued for such purposes.

(8) The Department of Commerce shall notify

the Department of Revenue of any facility

certified as a facility for a new professional

sports franchise or as a new spring training

franchise facility. The department may

certify no more than six facilities as

facilities for a new professional sports

franchise or as new spring training franchise

facilities. The department may make no more

than one certification for any facility.

(9) The Department of Revenue may audit as

provided in s. 213.34 to verify that the

distributions pursuant to this section have

been expended as required in this section.

Such information is subject to the

confidentiality requirements of chapter 213.

16. Section 212.20(6)(g)4, Florida Statutes (1991), establishes a non-

discretionary fixed distribution of funds to any facility that has been

certified by the Department of Commerce. The cited statutory provision reads as

follows:

4. Beginning July 1, 1992, of the remaining

proceeds, $166,667 shall be distributed

monthly by the [D]epartment [of Revenue] to

each applicant that has been certified by the

Department of Commerce as a "facility for a

new professional sports franchise" pursuant

to s. 288.1162 and $41,667 shall be

distributed monthly by the [D]epartment [of

Revenue] to each applicant that has been

certified by the Department of Commerce as a

"new spring training franchise facility"

pursuant to s. 288.1162. Distributions shall

begin 60 days following such certification and

shall continue for 30 years.

17. Pursuant to Section 120.54(4), Florida Statutes (1992 Supp.), any

substantially affected party may seek an administrative determination of the

invalidity of a proposed rule on the ground that the proposed rule is an invalid

exercise of delegated legislative authority. Section 120.52(8), Florida

Statutes (1992 Supp.), contains the following pertinent definition:

(8) "Invalid exercise of delegated

legislative authority" means action which goes

beyond the powers, functions, and duties

delegated by the Legislature. A proposed or

existing rule is an invalid exercise of

delegated legislative authority if any one or

more of the following apply:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

set forth in s. 120.54;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(7);

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required by

s. 120.54(7);

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency; or

(e) The rule is arbitrary or capricious.

18. Since the Petitioner is challenging the validity of the Department's

proposed rule, it has the burden of proving in this proceeding that the proposed

rule constitutes an invalid exercise of delegated legislative authority as that

term is defined in Section 120.52(8), Florida Statutes. Specifically, the

Petitioner has alleged that the agency has exceeded its grant of rulemaking

authority; that the rule enlarges, modifies or contravenes the specific

provisions of law implemented; and that the rule is arbitrary or capricious.

19. In Section 288.1162(1), Florida Statutes, the Legislature charged the

Department of Commerce with the responsibility to screen applicants for

certification as a facility for a new professional sports franchise.

20. Section 288.1162(2), Florida Statutes, describes the rulemaking

authority of the Department of Commerce with respect to the certification

process. Specifically, Section 288.1162(2), Florida Statutes, provides that

"the Department of Commerce shall develop rules for the receipt and processing

of applications for funding pursuant to s. 212.20." That statement provides the

full and complete grant of rulemaking authority for the promulgation of Proposed

Rule 8E-4. The Department of Commerce has not been provided with any broader

grant of authority for administering, implementing, or enforcing the

certification process.

21. In this case, the specific authority in the provisions of law

implemented that were identified by the Department in its published notice are

clear and unambiguous. The Department's rulemaking authority is limited to

rules regarding the receipt and processing of applications and may not be

extended to rules establishing substantive eligibility and funding criteria. As

noted in Steinbrecher v. Better Construction Co., 587 So.2d 492, 493 (Fla. 1st

DCA 1991), in cases where, as here, the statute is clear and unambiguous,

courts may not resort to rules of statutory

construction. Rather, the statute must be

given its plain and ordinary meaning....

[F]urther, courts are "without power to

construe an unambiguous statute in a way which

would extend, modify or limit its express

terms or its reasonable and obvious

implication." (Citations omitted.)

22. By attempting to create a class of "eligible costs" to restrict the

levels of funding that may be made available to an applicant for certification

as a new professional sports franchise and to establish eligibility criteria

beyond those created by statute, the Department of Commerce has ventured outside

the realm of its rulemaking authority and has, therefore, promulgated a rule

that is contrary to law. See, State v. Jenkins, 469 So.2d 733, 734 (Fla. 1985);

Department of Administration v. Albanese, 445 So.2d 639, 641 (Fla. 1st DCA

1984). The situation presented in Albanese is very similar to this case. In

Albanese, the Division of Retirement attempted to create a class of part-time

members of the Florida Retirement System that was not authorized by statute.

The statute only recognized creditable service on the basis of the position

filled and time period worked. When the Division of Retirement created a class

of service based on the amount earned in a pay period, the Court found that the

Division had exceeded its authority. In that regard, it is significant that the

Court's ruling recognized the Legislature's very broad grant of authority to the

Division to "make such rules as are necessary for the effective and efficient

administration of this system." Albanese compares with this case in that the

Department of Commerce has similarly created a class of eligible costs that is

not recognized in the statute. However, this case is even more compelling than

Albanese given the Department's very limited authority to promulgate "rules for

the receipt and processing of applications for funding...."

23. As stated in Board of Trustees of the Internal Improvement Trust Fund

v. Board of Professional Land Surveyors, 566 So.2d 1358, 1360 (Fla. 1st DCA

1990),

all rulemaking authority delegated to

administrative agencies is of course limited

by the statute conferring the power....

According to Section 120.52, Florida Statutes,

a proposed rule is an invalid exercise of

delegated legislative authority if it "goes

beyond the powers, functions and duties

delegated by the legislature." If the agency

has exceeded its grant of rulemaking authority

or if the rule enlarges, modifies or

contravenes the specific provisions of law

implemented such infractions are among those

requiring a conclusion that the proposed rule

is an invalid exercise of delegated

legislative authority. s. 120.52, F.S.

24. Similarly, in Cataract Surgery Center v. Health Care Cost Containment

Board, 581 So.2d 1359, 1361 (Fla. 1st DCA 1991), the court said that

an agency may not enlarge, modify or

contravene legislative pronouncements....

This court held ... that proposed rules which

expand the authority of the state agency

beyond that established by the statutory

scheme were invalid. Any attempt by an agency

to extend or enlarge its jurisdiction beyond

its statutory authority will be declared to be

invalid.

25. In this case, the Department of Commerce, through admittedly

substantive rule requirements, has attempted to expand its agency jurisdiction

by its attempt to limit funding that has been specifically authorized by

statute, by attempting to impose additional non-statutory eligibility criteria,

and by attempting to extend the period within which applications must be granted

or denied to a period greater than that provided by law. The agency's attempt

to do these things exceeds its grant of rulemaking authority and also enlarges,

modifies, or contravenes the specific provisions of law implemented. To the

extent the proposed rules have such effects, they are an invalid exercise of

delegated legislative authority.

26. The fact that the Legislature used different language in defining a

"facility for a new professional sports franchise" and a "new spring training

franchise facility" is persuasive evidence that a "facility for a new

professional sports franchise" is not limited to new construction. The

legislative language describing the two types of facilities is clearly

different. The courts have held that "[t]he legislative use of different terms

in different portions of the same statute is strong evidence that different

meanings were intended." Department of Professional Regulation, Board of

Medical Examiners v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984). For the

Department to construe the two definitions in the same manner is incorrect, and

to incorporate that construction into its rule enlarges, modifies, or

contravenes the statute and exceeds the Department's legislative authority.

27. The fact that the Legislature changed the variable rate funding

program that existed from 1988 to 1991 to a mandatory, fixed funding program

indicates that restrictions of funding based on applicant specific criteria were

intended to be eliminated. In general, when a statutory program is amended, "we

may assume ... that the legislature intended the amended statute to have a

meaning different from that accorded to it before the amendment." Hall v.

Oakley, 409 So.2d 93, 97 (Fla. 1st DCA 1982). In this case the assumption would

appear to be strengthened by the fact that in the 1992 legislative session

efforts to further amend Section 288.1162, Florida Statutes (1991), were

unsuccessful.

28. With regard to the provisions of Proposed Rule 8E-4.003(9), (10) and

(11), there does not appear to be any rulemaking authority at all. Such being

the case, those proposed provisions are arbitrary and capricious.

29. With regard to the provisions of Proposed Rule 8E-4.005(1) and (2)

establishing time periods for the Department processing of applications for

certification, these proposed time periods violate the provisions of Section

120.60, Florida Statutes, which specify the time periods within which agencies

must dispose of applications. The Department of Commerce has not been given

statutory authority to violate Section 120.60, Florida Statutes. Therefore,

these provisions exceed the Department's grant of delegated legislative

authority and are arbitrary and capricious.

On the basis of all the foregoing Findings of Fact and Conclusions of Law,

it is ORDERED:

That the following provisions of the Department of Commerce's proposed

rules are invalid exercises of delegated legislative authority: Proposed Rule

8E-4.003(3), (4), (9), (10), and (11), and 8E-4.005(1) and (2).

DONE AND ORDERED this 25th day of March, 1993, in Tallahassee, Leon County,

Florida.

___________________________________

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of March, 1993.

APPENDIX TO FINAL ORDER, CASE NO. 92-6935RP

The following are my specific rulings on all proposed findings of fact

submitted by all parties.

Findings submitted by Petitioner:

Paragraphs 1, 2, 3, 4, 5, and 6: Rejected as constituting conclusions of

law, rather than proposed findings of fact. (Most of these conclusions have

been incorporated into the conclusions of law portion of this Final Order.)

Paragraph 7: Accepted.

Paragraphs 8, 9, and 10: Rejected as constituting legal arguments and

conclusions of law, rather than proposed findings of fact. (Much of the

information in these paragraphs has been included in the conclusions of law

portion of this Final Order.)

Paragraph 11: Accepted.

Paragraphs 12, 13, 14, and 15: Rejected as argument or as subordinate and

unnecessary commentary regarding the language of the challenged rule provisions.

(The full text of the proposed rules is included in the findings of fact.)

Paragraphs 16 and 17: Accepted in substance.

Paragraphs 18, 19, 20, 21, 22, 23, 24, 25, and 26: Rejected as

constituting argument or conclusions of law, rather than proposed findings of

fact.

Paragraphs 27 and 28: Rejected as subordinate and unnecessary details.

Paragraphs 29 and 30: Rejected as irrelevant.

Paragraph 31: The historical information in this paragraph regarding

Senate Bill 216-H is accepted. The remainder of this paragraph is rejected as

constituting argument, rather than proposed findings of fact.

Paragraph 32: Rejected as constituting argument, rather than proposed

findings of fact.

Paragraphs 33, 34, 35, 36 and 37: Rejected as constituting mixtures of

argument and subordinate and unnecessary details, rather than proposed findings

of fact.

Paragraph 38: Rejected as statement of position, rather than proposed

findings of fact.

Paragraphs 39, 40, 41, and 42: Rejected as consisting primarily of

argument, rather than proposed findings of fact.

Paragraph 43: First sentence accepted in substance. Last sentence

rejected as constituting argument, rather than proposed finding of fact.

Paragraph 44: Rejected as consisting primarily of argument, rather than

proposed findings of fact.

Paragraph 45: First sentence accepted in substance. Last sentence

rejected as constituting argument or conclusion of law, rather than a proposed

finding of fact.

Paragraph 46: Rejected as constituting argument or conclusions of law,

rather than proposed findings of fact.

Findings submitted by Respondent:

Paragraph 1: Rejected as constituting a conclusion of law, rather than a

proposed finding of fact.

Paragraphs 2 and 3: Accepted in substance.

Paragraph 4: Rejected as constituting legal argument or a conclusion of

law, rather than a proposed finding of fact.

Paragraphs 5, 6, and 7: Rejected as constituting a conclusion of law,

rather than a proposed finding of fact.

Paragraphs 8 and 9: Rejected as constituting legal arguments or

conclusions of law, rather than proposed findings of fact.

COPIES FURNISHED:

H. Lee Moffitt, Esquire

Mark Herron, Esquire

E. Gary Early, Esquire

Akerman, Senterfitt & Eidson, P.A.

Post Office Box 10555

Tallahassee, Florida 32302-2555

William S. Stevens III, Esquire

Department of Commerce

Collins Building, Room 535

107 West Gaines Street

Tallahassee, Florida 32399

Greg Farmer, Secretary

Department of Commerce

536 Collins Building

107 West Gaines Street

Tallahassee, Florida 32399-2000

Liz Cloud, Chief

Bureau of Administrative Code

The Capitol, Room 1802

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

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.