05-004068RU Donald Chewning, Dennis Dodge, Leigha Rae Feyen, Leonard Paul Hebb, Christina Inserillo, Janice Overturf, Laura Deagle, Sunny Wood, Clifton Jones, Richard Lucas, And Robert Klaproth, Jr. vs. Department Of Law Enforcement Status: Closed DOAH Final Order on Tuesday, January 24, 2006.

Summary: Forms incorporated by reference into properly adopted rules are not required to be set forth in full within the notice published in the Florida Administrative Weekly.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD CHEWNING, DENNIS DODGE, )

LEIGHA RAE FEYEN, LEONARD PAUL )

HEBB, CHRISTINA INSERILLO, )

JANICE OVERTURF, LAURA DEAGLE, )

SUNNY WOOD, CLIFTON JONES, )

RICHARD LUCAS, AND ROBERT )

KLAPROTH, JR., )

)

Petiti oner s , )

)

vs. ) Case No. 05 - 4068RU

)

DEPARTMENT OF LAW ENFORCEMENT, )

)

Respondent. )

)

FINAL ORDER

On December 6, 2005, a final administrative hearing in this

case was held in Tallahas see, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Robert R. Berry , Esquire

Eisenmenger, Berry & Peters, P.A.

5450 Village Drive

Viera, Florida 32955

For Respondent: Rafael Eduardo Madrigal, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

STATEMENT OF THE ISSUE

The issue in the case is whether certain forms related to

inspection and operation of breath test instruments, and which

are incorporated by reference into various rules adopted by the

Florida Department of Law Enforcement (Respondent), must be

published in their entir ety in the Florida Administrative Weekly

during the rule adoption process.

PRELIMINARY STATEMENT

On November 7, 2005, the Petitioners filed a Petition

Challenging Florida Department of Law Enforcement's Failure to

Comply w ith t he Requirements of Chapter 12 0, Florida Statutes,

a s i t Relates to Promulgation of Breath Testing Forms.

The parties filed a Prehearing Stipulation on December 2,

2005. Pursuant to a Notice of Hearing dated November 9, 2005,

the hearing commenced on December 6, 2005.

Neither party presented any witnesses at the hearing. The

Petitioners had 26 exhibits identified as A through Z admitted

into evidence.

A n one - volume T ranscript of the hearing was filed on

December 27, 2005. The parties filed p roposed r ecommended and

p roposed f inal o rders on January 5, 2006. Based on the evidence

presented during the hearing and the factual stipulation of the

parties, the following f indings of f act are set forth.

FINDINGS OF FACT

1. Each of the Petitioners has been arrested and charged

with drivin g under the influence (DUI) in violation of

Section 316.193, Florida Statutes (2005) . The DUI cases are

currently pending.

2. The Respondent is the state agency charged with

adoption of rules related to operation of the alcohol testing

program, including certification and operation of breath test

instruments.

3. Apparently during the arrest process, the Petitioners

were administered breath tests using instruments identified as

Intoxilyzer breath machines. The machines were allegedly

maintained, and the tests administered, pursuant to requirements

set forth on various forms incorporated by reference into

rules adopted by the Respondent under the provisions of

Subsection 316.1932( 1 ) (a)2. , Florida Statutes (2005) .

4. Florida Administrative Code Chapter 11 D - 8 sets forth

rules applicable to the " Implied Consent Program ," including

rules related to breath testing administered to persons

suspected of DUI.

5. Florida Administrative Code Rule 11D - 8.017 includes a

list of forms referenced within Chapter 11D - 8, which are " hereby

incorporated by reference. "

6. Florida Administrative Code Rule 11D - 8.017 states that

all of the incorporated forms could " be obtained by contacting

the Florida Department of Law Enforcement, Alcohol Testing

Program, P. O. Box 1489, Ta llahassee, Florida 32302. "

7. Insofar as is relevant to this proceeding, the

incorporated forms are as follows:

FDLE/ATP Form 14 – Breath Test Result

Affidavit – Revised March 2002.

FDLE/ATP Form 16 – Agency Inspection

Procedures – Revised March 2004.

FDLE/ATP Form 24 – Agency Inspection Report

– Revised March 2001

FDLE/ATP Form 34 – Instrument Evaluation

Procedures – Revised March 2004.

FDLE/ATP Form 35 – Department Inspection

Procedures – Revised March 2004.

8. FDLE/ATP Form 14 is titled " Breath T est Result

Affidavit " and sets forth a series of 16 steps to be followed by

a breath test operator in administering a breath test.

9. FDLE/ATP Form 16 is titled " Agency Inspection

Procedures " and sets forth a series of 12 steps to be followed

in cleaning and testing a breath machine.

10. FDLE/ATP Form 24 is titled " Agency Inspection Report "

and is a form to be used by a permitted inspector to report

machine inspection results to the Department of Highway Safety

and Motor Vehicles.

11. FDLE/ATP Form 34 i s titled " Instrument Evaluation

Procedures " and sets forth the factors to be considered in

evaluating breath testing equipment for approval for use in

Florida.

12. FDLE/ATP Form 35 is titled " Department Inspection

Procedures " and sets forth a series of 11 steps to be followed

in cleaning and testing a breath machine.

13. The Respondent has not published the full text of the

cited forms in the Florida Administrative Weekly at any time

during the adoption, or subsequent amendment and re - adoption, of

Flori da Administrative Code Chapter 11D - 8.

14. In the Petitioners ' DUI cases, the State of Florida is

seeking to present evidence of compliance with the rules and

forms adopted by the Respondent related to maintenance of the

machines and administration of th e tests. The Petitioners

assert that the rules and forms were improperly adopted and ,

therefore , are invalid.

15. The Petitioners are substantially affected by the

rules and forms at issue in this proceeding.

16. There is no evidence that the Respon dent w as informed

by the Department of State or the Administrative Procedures

Committee during the rule adoption process that the process

utilized in adopting the referenced rule was improper.

17. There is no evidence that the rules have not been

readopt ed as necessary to accommodate revisions to the forms.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.56, Fla . Stat . (2005) .

19. The Petitioners have the burden of establishing by a

preponderance of evidence that the rules are an invalid exercise

of delegated legislative authority as to the objections raised.

§ 120.56(3), Fla . Stat . (2005) . The evidence fails to establish

that the rules and forms referen ced herein are an invalid

exercise of delegated legislative authority.

20. Section 120.52, Florida Statutes (2005) , provides the

following relevant definitions:

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond th e powers, functions, and

duties delegated by the Legislature. A

proposed or existing rule is an invalid

exercise of delegated legislative authority

if any one of the following applies:

(a) The agency has materially failed to

follow the applicable rulem aking procedures

or requirements set forth in this

chapter . . . .

* * *

(15) "Rule" means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

The term also includes the amendment or

repeal of a rule. The term does not

include:

(a) Internal ma nagement memoranda which do

not affect either the private interests of

any person or any plan or procedure

important to the public and which have no

application outside the agency issuing the

memorandum.

(b) Legal memoranda or opinions issued to

an agenc y by the Attorney General or agency

legal opinions prior to their use in

connection with an agency action.

(c) The preparation or modification of:

1. Agency budgets.

2. Statements, memoranda, or instructions

to state agencies issued by the Chief

Fina ncial Officer or Comptroller as chief

fiscal officer of the state and relating or

pertaining to claims for payment submitted

by state agencies to the Chief Financial

Officer or Comptroller.

3. Contractual provisions reached as a

result of collective barg aining.

4. Memoranda issued by the Executive Office

of the Governor relating to information

resources management.

21. The forms cited in this case set forth various

procedures established by the Respondent for collecting

quantified evidence of DUI or for maintenance of the equipment

used to perform alcohol breath testing. No challenge has been

brought to the Respondent ' s authority to establish such rules.

22. The central issue in this case is whether the

Respondent is required to publish the full t ext of each form in

the Florida Administrative Weekly when providing notice that the

forms are being incorporated into rules proposed for adoption.

For purposes of this Final Order, the forms are presumed to meet

the definition of " rule " because the forms constitute agency

statements of general applicability that implement the

provisions of S ubs ection 316.1932( 1 ) (a)2. , Florida Statutes

(2005) , the alcohol testing program, although it is unclear

whether each element of each form could be so defined.

23. Section 120.54, Florida Statutes (2005) , sets forth

the applicable procedures to be followed by an agency in

adopting administrative rules, including publication of notice

in the Florida Administrative Weekly . S ubs ection

120.54(3)(a)1 . , Florida Statutes ( 2005) , provides as follows:

Prior to the adoption, amendment, or repeal

of any rule other than an emergency rule, an

agency, upon approval of the agency head,

shall give notice of its intended action,

setting forth a short, plain explanation of

the purpos e and effect of the proposed

action; the full text of the proposed rule

or amendment and a summary thereof; a

reference to the specific rulemaking

authority pursuant to which the rule is

adopted; and a reference to the section or

subsection of the Florida Statutes or the

Laws of Florida being implemented,

interpreted, or made specific.

24. The Petitioners assert that the reference in

S ubs ection 120.54(3)(a)1 . , Florida Statutes (2005) , to " full

text " means that each form must be published in its entirety i n

the Florida Administrative Weekly during the rule adoption

process and that in failing to publish the entire text of the

forms, the Respondent failed to follow the applicable rulemaking

procedures, rendering the related rules an invalid exercise of

deleg ated legislative authority.

25. There is clearly no requirement that such forms be

published in their entirety in the Florida Administrative Code.

S ubs ection 120.54 (1) (i)1 . , Florida Statutes (2005) , provides as

follows:

A rule may incorporate material by reference

but only as the material exists on the date

the rule is adopted. For purposes of the

rule, changes in the material are not

effective unless the rule is amended to

incorporate the changes. A rule may not be

amended by reference only. Amendme nts must

set out the amended rule in full in the same

manner as required by the State Constitution

for laws. The Department of State may

prescribe by rule requirements for

incorporating materials by reference

pursuant to this paragraph.

26. The Departm ent of State has, in fact, established

rules related to incorporation of materials by reference in

Florida Administrative Code Rule 1S - 1.005, which provides in

relevant part as follows:

1S - 1.005 Incorporation by Reference.

(1) Any ordinance, standard, spe cification

or similar material may be incorporated by

reference in a rule adopted pursuant to

Section 120.54, F.S., and Rule 1S - 1.002,

F.A.C., subject to the following conditions:

(a) The material shall be generally

available to affected persons.

(b) Th e material shall be published by a

governmental agency or a generally

recognized professional organization.

(2) The agency incorporating material by

reference shall file with the Department of

State a correct and complete copy of the

referenced material w ith an attached

certification page which shall state a

description of the referenced material and

specify the rule to which the referenced

material relates. . . .

(3) Any amendments to material incorporated

by reference must be promulgated under the

rulem aking provisions of Section

120.54, F.S., in order for the amended

portions to be valid.

27. The Petitioner s assert that the intent of a statutory

amendment adopted in Chapter 84 - 203, Laws of Florida, was to

require that the full text of all forms be pub lished in the

notice of proposed rule adoption set forth in the Florida

Administrative Weekly . No evidence related to statutory intent

was offered to support the assertion.

28. Prior to the 1984 amendment, the existing S ubs ection

120.55(1)(b)2 . , Florida Statutes (2005) , included a prohibition

on publication of forms in the Florida Administrative Weekly .

The amendment deleted the prohibition. The statute also

included a prohibition on publication of forms in the Florida

Administrative Code, but the amend ment required that such forms

be filed with the Administrative Procedures Committee and that

forms meeting the definition of " rule " be incorporated by

reference into the appropriate rule.

29. The Petitioner s suggest that deletion of the

prohibition was indicative of the Legislature ' s intent that all

forms be fully published in the Florida Administrative Weekly .

Had the Legislature intended to require publication of all forms

in the Florida Administrative Weekly , it could easily have done

so in the amend ment. No such requirement was enacted. It is

not reasonable, absent other evidence of l egislative intent, to

presume that the Legislature intended to require that all forms

be published in the Florida Administrative Weekly .

FINAL ORDER

Based on the for egoing Findings of Fact and Conclusions of

Law, it is hereby

ORDERED that the Petition Challenging Florida Department of

Law Enforcement's Failure to Comply w ith t he Requirements of

Chapter 120, Florida Statutes, a s i t Relates to Promulgation of

Breath Te sting Forms is DISMISSED.

DONE AND ORDERED this 24th day of January , 2006 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of January , 2006 .

COPIES FURNISHED :

Ro bert R. Berry, Esquire

Eisenmenger, Berry & Peters, P.A.

5450 Village Drive

Viera, Florida 32955

Gregory W. Eisenmenger, Esquire

Eisenmenger, Berry & Peters, P.A.

5450 Village Drive

Viera, Florida 32955

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Rafael Eduardo Madrigal, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

Scott Boyd, Executive Director

and General Counsel

Joint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399 - 1300

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party w ho is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original N otice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

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

the Appellate District whe re the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.