06-000141RX An Unnamed Political Entity vs. Florida Elections Commission Status: Closed DOAH Final Order on Thursday, July 6, 2006.

Summary: The challenged rules are not an invalid exercise of delegated legislative authority. Respondent`s executive director is authorized to issue subpoenas and determine the legal sufficency of a complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AN UNNAMED POLITICAL ENTITY , )

)

Petitioner , )

)

vs. ) Case No. 06 - 0141RX

)

FLORIDA ELECTIONS COMMISSION , )

)

Respondent . )

)

FINAL ORDER

A formal administrative hearing was waived in this case ,

and the parties stipulated to the submission of cross motion s

for summary final order before Daniel M. Kilbride,

Administrative Law Judge of the Division of Administrative

Hearings in Tallahassee, Florida.

A PPEARANCES

For Petitioner: Edward A. Tellechea, Esquire

Office of the Attorney General

The Capital, Plaza Level 01

Tallahassee, Florida 32399

For Respondent: Jo hn H. French, Jr., Esquire

1531 Live Oak Drive

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether Florida Administrative Code Rules 2B - 1.0025(3),

(5), and (7) and 2B - 1.0027(3) are valid exercises of dele gated

legislative authority.

PRELIMINARY STATEMENT

On January 11, 2006, Petitioner filed a P etition to

Determine the Invalidity of Existing Rules. On January 13,

2006, Respondent's counsel filed his Notice of A ppearance. On

January 19, 2006, a telephonic pre - hearing conference was held ,

and , pursuant to the agreement of the parties , an Order on

Confidentiality was entered the following day, which held that

Petitioner in this proceeding is a political entity regulated by

Chapter 106, Florida Statutes (2005 ) , 1 and was presently under

investigation by Respondent, and, inter alia , could proceed to

resolution on the merits under the pseudonym listed in the style

of this case.

This matter was then set for hearing . O n February 14,

2006, the parties filed a Joint Motion wherein the parties

represented that they did not need a formal hearing in this

matter, but would submit stipulated facts , and sought to submit

cross motions for summary final orders and response s to each

side's respective motions. The motion was granted, the hearing

was cancelled , and a briefing schedule was established.

Following the granting of several motions for extension of time,

the parties each filed m otions for summary final o rder and

responses to said motions.

Following the filing of th e parties' final submittals on May 10

and 11, 2006, each parties ' motions and responses ha ve been

given careful consideration in the preparation of this Final

O rder.

FINDINGS OF FACT

1. Petitioner is a political entity subject to the

regulations set forth in Chapter 106, Florida Statutes.

2. Petitioner is the subject of certain complaints and

several investigatory proceedings initiated by Respondent.

3. The aforementioned complaints were determined to be

legally sufficient, pursuant to the Florida Administrative Code,

and as a result thereof, investigatory subpoenas were issued in

accordance with Florida Administrative Code Rule 2B - 1.0027(2).

4. The rules subject to Petitioner's challenge,

Florida Administr ative Code Rules 2B - 1.0025(3) , (5) , and (7) ,

and 2B - 1.0027( 2), were all subject to and reviewed by legal

counsel to the Joint Administrative Procedure C ommittee of the

Florida Legislature pursuant to Subsection 120.54(3)(a)4 . ,

Florida Statutes , and were promulga ted without Committee

objection prior to 1999.

5. The a forementioned investigatory subpoenas served upon

Petitioner were challenged by Petitioner , pursuant to Florida

Adm inistrative Code Rule 2B - 1.0027 (2).

The challenge was heard by Respondent's Chair via telephone

conference call o n January 9, 2006, and the subpoenas were

upheld by the Chair.

6. Petitioner has been, and continues to be , subject to the

provisions and o perations of the rules that are the subject of

this proceeding and is, thus , substantially affected by said

r ules. Accordingly, Petitioner has st anding to maintain this

proceeding.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings (DOAH) has

jurisdiction over the parties to and the subject matter of this

proceedin g pursuant to Subsection 120.56 (1), Florida Statutes .

8. Petitioner is a subst antially affected party by the

challenged rules and has standing to maintain this proceeding.

Subs ection 120.56 (1) (a) , Florida Statutes.

9. The ultimate issue in this mat ter is whether the

challenged r ules constitute an invalid exercise of delegated

legisl at ive authority as defined by Subsection 120.52 (8),

Florida Statutes. The portions of that statute that are

releva nt to this proceeding read, as follows:

120.52 Definitions. -- As used in this act:

* * *

(8) "Invalid exercise of delegated

legislative a uthority" 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 of the following applies:

* * *

(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.

* * *

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

th e enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within t he agency's

class of powers and duties, nor shall an

agen cy have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no furt her than implementing or

interpreting the specific powers and duties

conferred by the same statute.

10 . Petition er contends that Florida Administrative Code

Rule 2B - 1.0025 (3) is invalid in that it delegates determinations

of the legal sufficiency of com plaints to the Respondent's

executive d irector in contravention of the underlying statutory

authority .

11. The relevant portion of the r ule reads, as follows:

2B - 1.0025 Complaints

* * *

(3) Upon receipt of a complaint, the

executive director s hall determine whether

the complaint is legally sufficient , unless

the executi ve director determines that the

identity of the parties or witnesses or

other factual or legal basis would prevent

his or her determination due to an

appearance of impropriety or a conflict as

defined by Section 112.312 (8), Florida

Statutes. Upon the executive director's

determination that he or she has a conflict

or that action on the complaint would

present an appearance of impropriety, the

executive director shall refer the co mplaint

to the Commission for a determination of

le gal sufficiency .

12 . The specific authority cited for the authority to

adopt the rule is contained in S ubs ection 106.26 (1), Florida

Statutes, the relevant portion of which reads :

106.26 Powers of commi ssion; rights and

responsibilities of parties ; findings by

commission --

(1) The commission shall, pursuant to rules

adopted and published in accordance with

Chapter 120, consider all sworn complaints

filed with it and all mat t ers reported to it

by the Di vision of Elections. In order to

carry out the responsibilities prescribed by

this chapter, the commission is empowered to

subpoena and bring before it, or its duly

authorized representatives, an y person in

the state, or any person doing business in

the s tate, or any person who has filed or is

required to file any application, document,

papers, or other information with an office

or agency of this state or a political

subdivision thereof and to require the

production of any papers, books or other

records r elevant to any investigation,

including the records and accounts of any

bank or trust company doing business in this

state. Duly authorized representatives of

the commission are empowered to administer

all oaths and affirmations in the manner

prescribed b y law to witnesses who shall

appear before them concerning any relevant

matter.

13 . Petitioner points to the above - quoted statute to make

its claim that Florida Administrative Code Rule 2B - 1.00 27(2)

contravenes S ubsection 106.26(1) , Florida Statutes, be cause the

statute specifically provides that the "Commission is empowered

to su bpoena" and fails to mention anything about delegating such

responsibility to any other entity . Petitioner also cites to

S ubsection 106.26 (1) , Florida Statutes , to support its claim

that Florida Administrative Code Rule 2B - 1.0025 (3) contravenes

the legislative mandate that the "Commission . . . consider all

sworn complaints filed with it and all matters reported to it by

the Division of Elections" bec ause it calls for Respondent 's

executive d irector to make findings of legal sufficiency .

14 . Petitioner, however, has fa iled to consider

Subsection 106.24 (4), Florida Statutes, which addresses the

functions of Respondent's executive d irector.

Section 106.24 , Florida Statutes , cr eates th e "Florida Elections

Commission " and provides in part as follows:

(4) The commission shall appoint an

executive director, who shall serve under

the direction, supervision, and cont rol of

the commission. The executive director,

with the consent of the commission, shall

employ such staff as are necessary to

adequately perform the functions of the

commission , within budgetary limitations.

(Emphasis added)

15 . Respondent's position is that S ubsection 106.24 (4) ,

Florida Statutes , allows , to delegat e to the e xecutive d irector

the authority to perform necessa ry "functions of the Commission "

and those such functions i nclude the issuance of subpoena s and

the determination of le gal sufficiency of a complaint.

Respondent relies on Florida Commission on H uman R elations v.

Parrish Management, Inc . , 682 So. 2d 159 (Fla. 1st DCA 1996), a

case arising out of the First District Court of Appeal that is

based on underlying facts that are remarkably similar to the

matter at hand. Parrish involved a challenge to t he Florida

Commission on Human Relations (FCHR) rules that allowed its

executive d irector to make "an investigatory determination of

reasonable cause to believe that an unlawful employment practice

had occurred." Parrish at 159. The rule in question was

challenged in part o n the basis that Subsection 760.11(3),

Florida Statutes (1995) , specifically provided that "the

Commission shall determine if there is reasonable cause to

believe that a discriminatory practice has occurred , in

violation of the Florida Civil Rights Act of 1992 , " and that

such explicit statutory lang uage gave the FCHR , and not its

executive d irector , the authority to find reasonable cause.

16 . In overruling the DOAH Administrative Law Judge's

Final O rder finding the rules in question to be invalid

exercises of delegated legislative authority, the court in

Parrish cited to S ubsection 760.03 (7), Florida Statutes (1995) ,

which reads in part as follows:

(7) The commission shall appoint, and may

remove, an executive director who, with the

co nsent of the commission, may employ a

deputy, attorneys, investigators, clerks,

and such other personnel as may be necessary

adequately to perform the functions of the

commission , within bu dgetary limitations.

(E mphasis added).

17. The court found that the above - quoted language, which

is practically identical to that found in Subsection 106.24 (4),

Florida Statutes , clearly allows "the Commission to delegate to

the executive director the authority necessary to adequately

'perform the functions of the com mission'" such as making

findings of reasonable cause. Parrish at 160. In making its

finding, the c ourt recognized that the term "c ommission" as use d

in Sections 760.03 and 760.11, Florida Statutes , could not be

reasonably define d to only include the pan el of c ommissioners.

18. In support of its view, the court not ed that along

with giving the "c ommission" the authority to find reasonable

cause, Section 760.11 , Florida Statutes , also provides that upon

a finding of reasonable cause it shall,

[C] lea rly stamp on the face of the complaint

the date the complaint was filed with the

commission; shall within 5 days of the

complaint being filed, send a copy of the

complaint to the person who allegedly

committed the viola tion; shall investigate

the allegatio ns in the co mplaint; and shall

promptly notify the aggrieved pers on and the

respondent of the reasonable cause

determination, the date of such

determination, and the options available

under this section.

Parrish at 160. The court noted that the FCHR , a collegial body

that meets on a periodic basis, could not reasonably be expected

to perform all the functions out lined in Section 760.11, Florida

Statutes. Therefore, it was surely the intention o f the

legislature to allow the c o mmission through Subsection

760.03 (7) , Florida Statutes , to delegate the authority to

perfor m some of its functions to its executive d irector.

19 . S ubs ection 106.24 (4) , Florida Statutes, and other

relevant provisions of Chapter 106 , Florida Statutes, are very

similar to the provis ions in Chapter 760 , Florida Statutes,

addressed by the First District Court of Appeal in Parrish .

S ubsection 106.24 (4) , Florida Statutes , is alm ost identical to

Subs ection 760.03 (7) , Florida Statutes , and like Section 760.11 ,

Florida Statutes , there are provisions in Section 106.25 ,

Florida Statutes, that employ the term "c om mission" in such a

manner that cannot be reasonably defined to only include the

panel of commissioners. For example, under S ubs ection

106.25 (2), Florida Statutes , the "c om mission" is required to ,

within five days after the receipt of a sworn complaint, send a

copy of the complaint to the alleged violator and is required to

investigate all sworn complaints containing violations of

Chapters 104 and 106 , Florida Statutes , or complaints a rising

from information provided to Respondent by the Division of

Elections. As in the case of the FCHR in Parrish , Respondent

too is a collegial body that must meet in the "sunshine" and on

a quarterly basis, and can not reasonably b e expected to perform

all the "c ommission" functions outlined in Chapter 106 , Florida

Statutes , itself.

20 . Furthermore, under Subsection 106.24(1 )( a), Florida

Statutes , the legislature explicitly deems Respondent's

executive director as "the agency head for all purposes." T he

delegation of authority to its executive d irector is not

explicitly precluded and , thus, is allowed under S ubs ection

20.05(1) (b), Florida Statutes, which provides , in pertinent

part, as follows:

(1) Each head of a department, except as

otherwise prov ided by law, must:

* * *

(b) Have authority, without being relieved

of responsibility, to execute any of the

powers, duties, and functions vested in the

department or in any administrative unit

thereof through administrative units and

through assis tants and deputies designated

by the head of the department from time to

time, unless the head of the department is

explicitly required by law to perform the

same without delegatio n . (Emphasis added ).

21. Since there is no language in any of the provisi ons of

Chapter s 104 or 106 , Florida Statutes , that explicitly prohibit

the delegation of the authority to issue subpoenas and the

finding of legal sufficiency of com plaints, Florida

Administrative Code Rules 2B - 1.0025(3) and 2B - 1.0027 (2) do n ot

contravene any specific statutory authority. Accord, Sheffield

v. Department of Highway Safety and Motor Vehicles , 356 So. 2d

353 (Fla. 1st DCA 1978).

22 . Given the statutory framework of Chapter 106, Florida

Statutes , the Parrish ruling, S ubs ection 20.05(1) (b), F lorida

Statutes, and the clear and plain language of S ubsection

106.24 (4) , Florida Statutes, it is held that it was the

intention o f the legislature to allow the c ommission to del egate

to the executive d irector the authority to issue investigatory

subpoena s, to make findings of legal sufficiency, and to perform

other such functions that it can not reasonably perform due to

its collegial nature. Ac cordingly, Respondent , pursuant to its

rulemaking authority set forth in Subs ection 106.26(1), Florida

Statutes , has explicitly consented to having its executive

d irector perform the ministerial task of making findings of

legal sufficiency and issuing subpoenas, subject to the review

of Respondent's C hair, or his/ her designee , pursuant to Florida

Adm inistrative Co de Rule 2B - 1.0027 (2).

23 . Petitioner also challenges Florida Admi nistrative Code

Rules 2B - 1.0025 (5) and (7) as enlarging, modifying , or

contravening S ubs ection 106.25 (2), Florida Statutes, which reads

as follows:

(2) The commission shall investigate all

violations of this chapter and chapter 104,

but only after having received either a

sworn complaint or information reported to

it under this subsection by the Division of

Elections. Any person, other than the

division, having information of any

violat ion of this chapter or chapter 104

shall file a sworn complaint with the

commission . The commission shall

investigate only those alleged violations

specifically contained within the sworn

complaint . (E mphasis added).

24 . Petitioner alleges that Florid a Administrative Code

Rule s 2B - 1 .0025 (5) and (7) are contrary to the above - quoted ,

emphasized statutory language.

25 . Florida Administrative Code Rule 2B - 1.002 5 implements

Section 106.25, Florida Statutes , and , in doing so , it defines

legal sufficiency and outlines the process by which a complaint

is determined to be legally s ufficient. Florida Administrative

Code Rule s 2B - 1.0025 (5) and (7) , the two specific rule

provisions in question , reads as follows:

(5) A complaint is not r equired to list

every se ction of the Election Code t hat a

R espondent could have violated or to specify

facts that support every element of the

violations allege d . (Emphasis added).

* * *

(7) In determining the legal sufficiency of

a complaint, the executive director shall

consider any document referred to in th e

complaint and any material C ommission staff

has obtained in prior Commission

investigations. In deter mining the legal

sufficiency of a complaint alleging a

violation of the campaign finance laws, the

executive dir ector shall also consider

documents on file with the filing officer .

( E mphasis added).

26 . Petitioner characterizes the emphasized portions of

the above - quoted rules as authorizing, "the Executive Director

to 'fill in the blanks' in a complaint as to t he facts necessary

to constitute a violation as well as to consider documents and

other materials that are extraneous to the complaint or

otherwise mad e part thereof by the complaint. "

27. Respondent opposes Petitioner's characterization. The

first se n tence within S ubs ection 106.25 (2), Florida Statutes,

which Petitioner noticeably excludes from its Petition, requires

the Respondent to investigate "all violations" of Chapter s 104

and 106 , Florida Statutes, that are contained either within a

sworn compla int or information reported to it by the Division of

Elections. The last sentence of Subsection 106.25 (2) , Florida

Statutes , merely states that Respondent may only investigate the

violation contained within the complaint. The clear and

unambiguous langua ge of both sent ences, when read together, make

it clear that Respondent is required by law to investigate all

violations contained within a sworn complaint received by

Respondent. No reasonable reading of S ubsection 106.25 (2) ,

Florida Statutes , could lead any reasonable person to conclude

that all complaints or allegations of wrongdoing received by

Respondent must specify all the facts necessary to support a

violation before Respondent can decide to investigate the

matter.

28 . In filing this challenge , P etitioner is attempting to

improperly restrict Respondent's ability to investigate

violations of Chapters 104 and 106, Florida Statutes, by

encouraging this tribunal to read S ubs ection 106.25(2) , Florida

Statutes , in such a manner as to require all complai nts to be

more akin to a formal charging document . R ather , what is

required is just a simple allegation that sets forth that an

entity , subject to Chapter s 104 or 106 , Florida Statutes , has

violated one of its provisions. If the stricter standard were

th e case, only those member s of the public that have the legal

knowledge necessary to determine all the factual elements

necessary to support a violation of Chapter 104 or 106 , Florida

Statutes , or have the financial ability to h ire an

attorney to do so , on their behalf , would be able to have their

complaints heard.

29. Petitioner a lso asserts that Subsection 106.25 (2),

Florida Statutes , precludes Respondent from promulgating a rule

that allows it to refer to extraneous documents to determine

whether a com plaint is legal ly sufficient. There is no language

within S ubs ection 106.25(2) , Florida Statutes , or any provision

of Chapter 104 or 106 , Florida Statutes , that precludes

Respondent from referring to documents outside of the complaint

itself for purposes of verifying or discounting facts alleged

within a complaint. The primary purpose of Florida

Administrative Code Rule 2B - 1.002 5(7) is to provide a mechanism

that allows Respondent, through its staff, to review documents

extraneous to the complaint that co ntradict the allegations in

the compla int , which support a finding of no leg al sufficiency.

In other words, it helps eliminate unsupported complaints early

during the legal sufficiency phase of an investigation.

30 . If Petitioner's position was upheld , Respondent would

be unable to simply review a document already in its possession,

or easily accessible through another agency, to verify or deny

an allegation contained in a complaint. In other words, it

would eliminate a mechanism that facilitates the early

elimination of complaints that lack merit and would require

Respondent to take all complaints to the full commission for

full review and prolong the life span of meritless complaints.

31 . Florida Admi nistrative Code Rules 2B - 1.0025 (5) and (7)

do n ot enlarge, modify , and/or contravene the specific

provisions of S ubs ection 106.25(2) , Florida Statutes . As

required by law, it simply sets forth, "pursuant to rules

adopted an d published in accordance with C hapter 120," how

Respondent will "consider all sworn complaints filed with it and

all matters reported to it by the Division of Elections."

§ 106.26 (1) , Fla. Stat.

32 . In 1999 , the legislature amended S ubs ecti on 120.52 (8),

Florida Statutes, to read in pertinent part:

. . . an agency may adopt only rules that

implement or interpret the specific powers

and duties granted by the enabling statute.

33. The amendment to the statute does not repeal or amend

the powers and duties provisions in Sections 106.24 or 106.25,

Florida Statutes, and the rules , previously adopted by

Respondent, implement the specific powers and duties granted to

Respondent in the enabling statute. Therefore, the 1999

amendment to S ubs ection 120.52(8) , Florida Statutes , does not

overrule or preclude the result in Parrish , which is the binding

precedent in this case.

FINAL ORDER

Based on the foregoing,

It is ORDERED , as follows:

1) Petitioner's motion fo r summary final order is denied;

2) Respondent's motion for summary final order is granted;

3 ) The petition seeking decl aration of invalidity of

Florida Administr ative Code Rules 2 - B - 1.0025(3) , (5) , and (7) and

2B - 1.0027(2) is dismissed; and

4 ) The above - cited rules do not constitute an invalid

exercise of delegated legislative authority.

DONE AND ORDERED this 6th day o f July , 2006 , in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 96 75 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of July, 2006 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes shall be to the 2005 version.

COPIES FURNISHED :

John H. French, Jr., Esquire

1531 Live Oak Drive

Tallahassee, Florida 32301

Edward A. Tellechea, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Scott Boyd, Executive Director

and General Counsel

Joint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399 - 1300

Barbara M. Linthicum, Executive Director

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tal lahassee, Florida 32399 - 1050

Patsy Rushing, Clerk

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Or der is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the 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 where the party resides. The notice of

appe al must be filed within 30 days of rendition of the order to

be reviewed .