07-005665RX Fairdistrictsflorida.Org vs. Department Of State, Division Of Elections Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, May 15, 2008.

Summary: Respondent exceeded its rulemaking authority and enlarged or modified enabling statute when it adopted a rule prohibiting the bundling of constitutional amendment initiative petitions when they are presented to the public for signature.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FAIRDISTRICTSFLORIDA.ORG, )

)

Petitioner, )

)

vs. ) Case No. 07 - 5665RX

)

DEPARTMENT OF STATE, DIVISION )

OF ELECTIONS, )

)

Respondent. )

_________________________________)

FINAL ORDER

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

on January 15, 2008, in Tallahassee, Florida, before Patricia M.

Hart, a duly - designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Mark Herron, Esquire

Monica M. Evans, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

For Respondent: Gary J. Holland , Esquire

Department of State

R.A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

STATEMENT OF THE ISSUE

Whether Florida Administrative Code Rule 1S - 2.009(8)

constitutes an invalid exercise of delegated legislative

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

(2007). 1

PRELIMINARY STATEMENT

This proceeding was initiated o n December 12, 200 7 , when

FairDistrictsFlorida.org ("FDF") , filed with the Division of

Administrative Hearings a Petition to Determine Invalidity of

Existing Rule , in which it challenged Florida Administrative

Code Rule 1S - 2.009(8) as an invalid exercise of delegated

legislative authority as defined in Section 12 0.52(8), Florida

Statutes. The matter was assigned to the undersigned

Administrative Law Judge on December 12, 2008. On December 17,

2007 , FDF filed an Amended Petition to Determine Invalidity of

Existing Rule , to which it attached several exhibits . Flo rida

Administrative Code Rule 1S - 2.009(8) was enacted by Department

of State, Division of Elections (" Department "), and FDF

challenges Florida Administrative Code Rule 1S - 2.009(8) on the

specific grounds that the Department " has exceeded its grant of

rulem ak ing authority" in violation of Section 120.52(8)(b),

Florida Statutes; that the " rule enlarges, modifies, or

contravenes the specific provisions of the law imp lemented" in

violation of Section 120.52(8)(c), Florida Statutes; and that

the rule is " arbitra ry or capricious" in violation of Section

120.52(8)(c), Florida Statutes. 2

The final hearing was held on January 15, 2008, pursuant to

the request of FDF, without objection from the Department , which

constituted a waiver of the requirement in Section 120.5 6(1)(c),

Florida Statutes, that the final hearing in a challenge to an

existing rule be held within 30 days of the date on which the

matter is assigned to an administrative law judge. On

January 10, 2008, the parties filed a Pre - Hearing Stipulation to

whi ch they appended a Stipulation of Facts that contains

numerous facts on which the parties agree. At the final

hearing, the parties presented oral argument and offered Joint

Exhibits 1 through 23, which were received into evidence.

Neither party presented the testimony of witnesses.

FINDINGS OF FACT

Based on the Stipulation of Facts and on the joint exhibits

received into evidence at the final hearing and on the entire

record of this proceeding, the following findings of fact are

made:

The Parties

1. FD F is a political committee registered pursuant to

Section 106.03, Florida Statutes, to advocate a change in the

way Florida draws legislative and congressional district lines.

FDF is engaged in developing and implementing initiative

petitions to place con stitutional amendments on the ballot to

provide standards by which state legislative and federal

congressional district boundaries are drawn.

2. The Division of Elections is a division within the

Department of State, the head of whic h is the Secretary of

State. § 20.10 , Fla. Stat.

The challenged rule, relevant statutes, and rule and legislative

history

3. Florida Administrative Code Rule 1S - 2.009 (8), which is

the subject of this rule challenge, provides: “Bundling: No

initiative petition form circulat ed for signature may be bundled

with or attached to any other petition.”

4 . The rule was adopted on March 16, 2006, as part of a

number of amendments to Florida Administrative Code Rules 1S -

2.0011, 1S - 2.009, and 1S - 2.0091. Fl a. Admin . Weekly, Vol. 32,

No . 10, Mar . 10, 2006, p. 1131.

5 . According to the Notice of Proposed Rule published

November 23, 2005, "t he proposed amendments reflect changes in

practice and procedure and implement changes made during the

2005 Legislative Session in Cha pter 2005 - 278, L aws of Florida,

that pertain to the procedures governing submission and approval

of initiative petitions and ballot position assignment s for

constitutional amendments" and " updat e the rule to reflect

current practices, procedures, and legislative changes r elating

to the procedures governing the submission and approval of

initiative petitions and ballot position assignments for

constitutional amendments." Fl a. Admin. Weekly, Vol. 31,

No. 47, Nov . 23, 2005, p p. 4308 - 4312.

6 . The Department received no com ments or objections from

the public or from the Florida Legislature’s Joint

Administrative Procedures Committee during the rulemaking

process for Florida Administrative Code Rule 1S - 2.009.

7 . The specific authority for Florida Administrative Code

Rule 1S - 2.009 is identified in the Florida Administrative Code

as S ections 20.10(3), 97.012(1), 100.371(3), (7), and

101.161(2), Florida Statutes. The law implemented is identified

as S ections 100.371 and 101.161, Florida Statutes.

8 . As noted above, the amendme nts to Florida

Administrative Code Rule 1S - 2.009 were enacted to implement

Chapter 2005 - 278, Laws of Florida, which was effective

January 1, 2006. This law revised the procedures by which

constitutional amendments by initiative are placed on the ballot

an d included amendments to Section 100.371, Florida Statutes.

Pertinent to this proceeding, one of the amendments deleted

former Section 100.371(2), Florida Statutes (2005), and

re - numbered former Section 100.371(3), Florida Statutes (2005),

as Section 100 .371(2), Florida Statutes (2006). No changes were

made to the text of the newly re - numbered Section 100.371(2),

Florida Statutes.

9 . Section 100.371(2), Florida Statutes, provides in

pertinent part that "[t] he Secretary of State s hall adopt rules

pursuan t to s. 120.54 prescribing the styl e and requirements of

such form . " This language has been in Section 100.371, Florida

Statutes, since the statute’s inception in 1979. The only

substantive change occurred in 2002 when the current term

“adopt” replaced i ts predecessor term “promulgate” in the

sentence.

10 . The amendments to Section 100.371, Florida Statutes,

in Chapter 2005 - 278, Laws of Florida, did not address bundling

of initiative petitions nor did the amendments provide any

rulemaking authority to th e Department regarding constitutional

amendment initiative petition forms other than that already

included in Section 100.371(2) and (7) , Florida Statutes.

11 . During the 2006 legislative session, bills were

introduced t hat would have amended Section 100. 371 (2) , Florida

Statutes, to include a provision that "[t] he form shall consist

of a single card or sheet of paper unconnected with any other

card or sheet of paper and must be circulated for signatures in

this context."

12 . Pertinent to these proceedings , t he Senate Staff

Analysis and Economic Impact Statement for Committee Substitute

for one of the bills introduced during the 2006 legislative

session, Senate Bill 720 , contained the following:

During the 2004 election cycle, numerous stories

appeared in n ewspapers concerning fraud in the

petition process to place constitutional

amendments on the ballot. Two petition gatherers

were arrested in Santa Rosa County for over

40 counts each of uttering a forged document.

Several other elections supervisors foun d

petitions signed with the names of dead voters.

The Florida Department of Law Enforcement (FDLE)

issued a press release in October of 2004

indicating that it had received numerous

complaints relating to voting irregularities, and

had initiated several i nvestigations.

Specifically, the FDLE created regional elections

task forces to address the issue of voter fraud

in a statewide manner. While the FDLE did not

reveal details of the investigations, it noted

that the investigations focused on the following

conduct: In some cases, persons who believed

they were signing petitions later found out that

their signatures or possible forged signatures

were used to complete a fraudulent voter

registration. In other instances, it appears

that workers hired to obta in legitimate voter

registrations filled in the information on the

registration forms that should have been

completed by the registrants. On several

occasions, workers appear to have signed multiple

voter registrations themselves using information

obtaine d during the registration drive. In many

of the situations complained about, the workers

were being paid on the basis of each registration

form submitted.

(Footnotes omitted.) Similar language was contained in the

House of Representatives Staff Analysis for Committee

Substitute for the other bills, CS/HB 773.

13 . On April 19, 2006, the Senate Judiciary Committee

voted unfavorably on the passage of Senate Bill 720 , and the

bill never made it to the Senate f loor for consideration.

CS/HB 773 was placed on the House Calendar on April 11, 2006 ,

but it died on the House Calendar on May 5, 2006.

14 . N o legislation providing that “[t]he form [of an

initiative petition] shall consist of a single card or sheet of

paper unconnected with any other card or sheet of paper and must

be circulated for signatures in this context ” was enacted into

law during the 2006 Legislative session or in any subsequent

session of the Legislature.

15 . Since the 2006 regular legislative session, the

Florida Legislature has met in regu lar session and in four

special sessions in 2007. In 2007, t he Legislature made several

amendments to Section 100.371, Florida Statutes , but no

amendments to Section 100.371(2), Florida Statutes , were

enacted . See Ch. 2007 - 30, § 25, at 19 - 21, Laws of Fl a .

16 . Florida Administrative Code Rule 1S - 2.009 was amended

on October 15, 2007, but Florida Administrative Code Rule 1S -

2.009(8) remained unchanged . The Department received no

comments or objections from the public or the Florida

Legislature’s Joint Adm inistrative Procedures Committee during

the rulemaking process for Florida Admi nistrative Code Rule 1S -

2.009 when it was amended on October 15, 2007.

Definitions

17 . The following terms have the definitions as stated:

a. Bundle : "A group of things fas tened together for

convenient handling." Merriam Webster Online Dictionary .

"Several objects or a quantity of material gathered or bound

together." Random House Webster’s College Dictionary (2d ed.

1999).

b. Attached : "Joined, connected, bound." Rand om House

Webster’s College Dictionary (2d ed. 1999).

c . Style : "A particular manner or technique by which

something is done, created, or performed." Merriam Webster

Online Dictionary . "A particular type or sort, with reference

to form, appearance, or c haracter."; "To design or arrange in

accordance with a given or new style."; "To bring into

conformity with a specific style." Random House Webster’s

College Dictionary (2d ed. 1999).

d. Requirement : " Something required." Merriam Webster

Online Diction ary . "S omething required."; "A requirement is

some quality or performance demanded of a person in accordance

with certain fixed regulations." Random House Webster’s College

Dictionary (2d ed. 1999).

Substantial effect of rule on FDF

18 . In a letter hand - delivered on October 31, 2006, Mr.

Ben Wilcox, Chairman of Floridians for Fair Elections, submitted

to the Department four initiative petitions concerning

legislative and congressional district boundaries for approval

as to format. Mr. Wilcox stated in t he letter that Floridia ns

for Fair Elections intended " to bundle these proposals as a

package for gathering signatures. "

19 . In a letter dated November 2, 2006, the Department

informed Mr. Wilcox that the four petition forms did not meet

the format requir ements of Florida Administrative Code Rule 1S -

2.009 and the Form DS - DE 19 incorporated into the rule . The

Department 's letter also stated that the r ule " provides that no

initiative petition form circulated for signature may be bundled

with or attac hed to any other petition form."

20 . In a letter hand - delivered to the Department on

August 7, 2007, Barry Richard, on behalf of Floridians for Fair

Elections, submitted four constitutional amendment initiative

petition forms concerning legislative and congressi onal district

boundaries. The letter stated:

The box in the upper left - hand corner for insertion of

the voter’s identifying information will be carbon

treated so that the voter only has to fill it out one

time for all four petitions. However, the signatu res

will not copy from one form to another and each

signature line can be seen only by lifting the

preceding page. This has been done to avoid the fraud

potential that was inherent in the bundled forms used

in the past and now prohibited by your rules.

2 1 . O n behalf of Floridians for Fair Elections, Mr.

Richard sought the Department 's approval to use NCR paper to

print and circulate the proposed initiative petitions. The

petitions were not attached to one another. Rather, t hey were

presented as separat e pages with three holes punched, to be

placed in a loose - leaf, three - ring binder notebook for

signature. The loose - leaf notebook design would permit the

elector to fill - in identifying information on the top petition ,

and that information would be transfe rred by carbon to the

petitions underneath the top petition. The signature line was

not carbon treated and no signature could be transferred to any

of the petitions underneath. The top petition would be shorter

in length than the other three petitions; h owever, the signature

line on the other three petition forms was not visible without

lifting the pr eceding petition form. The elector would be able

to review the text of th e petition by lifting the preceding

petition form.

22 . In an e - mail dated August 1 4, 2007, the Department

informed Mr. R ichard that the information he orally provided the

Department regarding the manner in which the petitions would be

presented to the voters, that is, fastened in a three ring

binder, would fall within the rule’s prohibi tion against being

" bundled with or attached to any other petition form. "

23 . In a letter dated September 17, 2007, Mr. Richard

submitted to the Department on behalf of Floridians for Fair

Elections two constitutional amendment initiative petition forms

r elating to legislative an d congressional redistricting.

Nothing was stated about bundling these petitions and each was

on regular, letter - sized paper.

24 . In a letter dated September 19 , 2007 , hand - delivered

to Department on September 20, 2007, Floridian s for Fair

Elections notified the Department that it had changed its name

to FairDistrictsFlorida.org . The Department acknowledged the

name change in a letter dated September 24, 2007 .

25 . In an e - mail dated September 25, 2007, FDF re -

submitted the two p etition forms to correct format mistakes on

the petitions that Mr. Richard had presented on behalf of FDF's

predecessor, Floridians for Fair Elections. After making

further correction s, FDF re - submitted for approval the two

initiative petitions via e - mail on September 27, 2007.

26 . In letters dated September 28, 2007, the Department

notified FDF that the format of its two initiative petitions was

approved and that they had been assigned serial numbers 07 - 15

and 07 - 16. ( A scrivener’s error e xists on Petit ion 07 - 15 -- the

" Date Approved " at the bottom of the form shoul d read "9/28/07,"

not "7/28/07." ) .

CONCLUSIONS OF LAW

27 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursu ant to Sections 120.56, 120.569, and

120.57(1), Florida Statutes (2007).

Standing

28 . Section 120.56(3)(a), Florida Statutes, provides that

any "substantially affected person may seek an administrative

determination of the invalidity of an existing rule at any time

during the existence of the rule." The facts to which the

parties have stipulated are sufficient to establish that the FDF

has been substantially affected by Florida Administrative Code

Rule 1S - 2.009(8) , and it, therefore, has standing to chal lenge

this rule.

Validity/invalidity of Florida Administrative Code Rule 1S -

2.009(8)

29 . FDF challenges the validity of Florida Administrative

Code Rule 1S - 2.009(8) on the grounds that it constitutes an

invalid exercise of delegated legislative authority pursuant to

Section 120.52(8)(b), (c), and (e), Florida Statutes, which

provides:

8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and

duties delegated by the Legislature. A

proposed or exist ing 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, mod ifies, or

contravenes the specific provisions of law

implemented, citation to which is required

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

* * *

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

c apricious if it is adopted without thought

or reason or is irrational [.]

* * *

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 onl y rules that implement or interpret

the specific powers and duties granted by

the 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 ca pricious or is within the agency's

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally descr ibing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the same statute.

See also § 120.536(1), Florida Statutes.

30 . For purposes of this cha lleng e to an existing rule,

FDF has the burden of proving by a preponderance of the evidence

that the rule is invalid. § 120.56(3)(a), Fla. Stat. The

preponderance of the evidence standard requires proof by "the

greater weight of the evidence," Black's Law Di ctionary 1201

(7th ed. 1999), or evidence that "more likely than not" tends to

prove a certain proposition. See Gross v. Lyons , 763 So. 2d

276, 28 0 n.1 (Fla. 2000)(relying on American Tobacco Co. v.

State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997) quoting

Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

31 . Florida Administrative Code Rule 1S - 2.009 provides in

its entirety as follows:

1S - 2.009 Constitutional Amendment by

Initiative Petition.

(1) Submission of Initiative Petition. Any

proposed ini tiative amendment to the State

Constitution to be placed on the ballot

shall be submitted by the sponsoring

political committee to the Division of

Elections for approval as to format prior to

circulation of the proposed initiative

amendment. Such submissi on shall be in

writing and shall include a copy or a

facsimile of the proposed form to be

circulated. No initiative petition form for

signatures may be circulated unless approved

by the Division of Elections.

(2) Requirements and Approval of Initiative

Petition Form. The Division shall review

the initiative petition form solely for

sufficiency of the format and shall render a

decision within seven (7) days following

receipt. The Division shall not review the

petition form for legal sufficiency. The

fo rmat of the petition form is deemed

sufficient only if the petition form:

(a) Is printed on separate cards or

individual sheets of paper. The minimum

size of such forms shall be 3 inches by 5

inches and the maximum shall be 8 1/2 inches

by 11 inches.

( b) Is clearly and conspicuously entitled

at the top of the form "Constitutional

Amendment Petition Form."

(c) Includes adequate space for the voter's

name, residential street address, city,

county, voter registration number, date of

birth, signature, an d date of signature.

(d) Contains the ballot title that shall

not exceed 15 words and the ballot summary

of the proposed amendment or other public

measure that shall not exceed 75 words in

length as prescribed in subsection (4).

(e) Conspicuously conta ins in the following

order:

1. The ballot title;

2. The ballot summary;

3. The article and section being created or

amended; and

4. The full text of the amendment being

proposed. If the text must be printed on

both sides of the form, it shall be c learly

indicated that the text is continued or

begins on the other side.

(f) Contains space for only one voter's

signature to be located below the full text

of the amendment being proposed. The

Division will not approve petition forms

providing for mult iple signatures per page.

(g) Is marked, in accordance with

Section 106.143, F.S. , governing political

disclaimers, with "paid political

advertisement" or contains the abbreviation

"pd. pol. adv." and identifies the name of

the sponsoring political commi ttee, and the

name of the entity paying for the

advertisement if different from the name of

the sponsoring political committee.

(h) Contains space, in accordance with

Section 106.19(3), F.S. , for the name and

address of a paid petition circulator, in

the event the petition form is gathered by a

paid petition circulator.

(3) Sample Petition Form. The format of an

initiative petition submitted for review and

approval by the Division of Elections shall

be substantially in accordance with Form DS -

DE 19 (ef fective 10 - 15 - 07), entitled

"Constitutional Amendment Petition Form."

Form DS - DE 19 is hereby incorporated by

reference and is available from the Division

of Elections, Room 316, R.A. Gray Building,

500 South Bronough Street, Tallahassee,

Florida 32399 - 02 50, (850)245 - 6500, or by

download from the Division of Elections'

rules webpage at:

http://election.dos.state.fl.us

(4) Word Count. The following provisions

apply to determine the word count for a

ballot title and summary:

(a) Hyphenated compound word s count as two

or more words.

(b) An ampersand or a plus or minus sign

shall count as one word.

(c) Punctuation such as commas, periods,

hyphens, question marks, parentheses,

quotation marks or exclamation points does

not affect the word count.

(d) E ach word joined by a forward or back

slash to another word counts separately as a

word.

(e) Each part of a date counts as one word.

Example: January 1, 2025 shall count as

three words.

(f) Each word in a name is individually

counted. Example: George Washington shall

count as two words.

(g) Each whole number shall count as a

word.

(h) Spaces do not affect the word count.

(5) Additional Information or Materials.

Other than providing information or a method

by which the petition form may be return ed

by mail to the sponsoring committee, no

additional information or materials that

support the proposed amendment shall be

printed directly on the form.

(6) Assignment of a Serial Number. The

Division shall assign a serial number to

each approved petit ion form. The serial

number shall begin with the last two digits

of the calendar year in which the petition

form is approved followed by a number in

numer ic al sequence. For example, the first

petition form approved in 2006 is assigned

the serial number 0 6 - 1. The serial number

assigned must be printed in the lower right

hand corner of the petition form.

(7) Changes. Any change to a previously

approved petition form shall be submitted to

the Division of Elections for review. No

person or entity other t han the sponsoring

political committee of the previously

approved petition form can submit a change

or changes to the previously approved

petition form. The Division of Elections

must approve any material change to a

previously approved petition form. A

material change constitutes a change in the

wording of the text of the proposed

amendment, the ballot title, or ballot

summary, or a change in punctuation or

layout, or a change in the name of the

sponsoring political committee. A

translation into another language does not

constitute a material change to an

initiative petition form. Any material

change submitted for approval to a

previously approved initiative petition

constitutes a request for approval of a new

petition form and shall be assigned a

diffe rent serial number upon approval by the

Division of Elections.

(8) Bundling. No initiative petition form

circulated for signature may be bundled with

or attached to any other petition form.

(9) Reproduction. Petition forms may be

reproduced in newspa pers, magazines, and

other forms of printed mass media or made

available through the internet for download

printing, provided such forms are reproduced

in the same format as approved by the

Division. The petition forms may be

included within a larger adve rtisement,

provided the forms are clearly defined by a

solid or broken line border.

(10) Submission of Signed Petition Forms.

All signed petition forms shall be returned

to the sponsoring political committee. Only

the sponsoring political committee sha ll

submit the signed petition forms to the

Supervisors of Elections for verification of

sig natures in accordance with Rule 1S -

2.0091, F.A.C.

(11) Effect on Previously Approved Petition

Form. Any petition form approved by the

Division of Elections prior to the effective

date of this rule may continue to be used

and circulated for signature gathering

unless a material change to the previously

approved petition form has been approved by

the Division of Elections or until the

sponsoring political committee n otifies the

Division of Elections that the committee is

no longer seeking to obtain ballot position,

or the registration of the sponsoring

political committee has been revoked in

accordance with Rule 1S - 2.021, F.A.C.

AUTHORITY: Specific Authority 20.10(3) ,

97.012(1), 100.371(3), (7), 101.161(2)

Florida Statutes.

Law Implemented 1 00.371, 101.161 FS.

A. Validity of Florida Administrative Code Rule 1S -

2.009(8) pursuant t o Section 120.52(8)(b), Florida

Statutes, and Section 120.52(8)(c), Florida Statutes

32 . I f an agency exceeds "its grant of rulemaking

authority" in adopting a rule, the rule constitutes an invalid

exercise of delegated legislative authority pursuant to

Section 120.52(8)(b), Florida Statutes. Likewise, if a rule

"enlar ges, modifies, or contravenes the specific provisions of

law implemented," the rule constitutes an invalid exercise of

delegated legislative authority pursuant to

Section 120.52(8)(c), Florida Statutes.

33 . The L egislature has explicated the limitations o n the

extent of an agency's authority to adopt rules in the "flush

left" paragraph in Section 120.52(8) and in Section 120.536(1),

Florida Statutes, which require not only that an agency adopting

a rule have a grant of rulemaking authority but also that th e

rulemaking authority granted by statute extend no further than

the implementation or interpretation of "the specific powers and

duties granted by the same statute."

34 . In interpreting the provisions of the "flush left"

paragraph of Section 120.52(8) an d in Section 120.536(1),

Florida Statutes, the First District Court of Appeal observed in

Southwest Florida Water Management District v. Save the Manatee

Club, Inc., et al. , 773 So. 2d 594, 599 (Fla. 1st DCA 2000),

that

[t]he new law gives the agencies aut hority

to "implement or interpret" specific powers

and duties contained in the enabling

statute. A rule that is used to implement

or carry out a directive will necessarily

contain language more detailed than that

used in the directive itself. Likewise, t he

use of the term "interpret" suggests that a

rule will be more detailed than the

applicable enabling statute. There would be

no need for interpretation if all details

were contained in the statute itself.

It follows that the authority for an

admin istrative rule is not a matter of

degree. The question is whether the statute

contains a specific grant of legislative

authority for the rule, not whether the

grant of authority is specific enough.

Either the enabling statute authorizes the

rule at issue or it does not.

35 . The court in Board of Trustees of the Internal

Improvement Trust Fund v. Day Cruise Ass'n , 794 So. 2d 696, 701

(Fla. 1st DCA 2001), observed that the question of an agency's

exceeding its grant of rulemaking authority and the questio n of

a rule enlarging or modifying the specific provisions of law

implemented are interrelated but present two different issues

for consideration in determining whether a rule is an invalid

exercise of delegated legislative authority pursuant to

Section 12 0.52(8)(b) and Section 120.52(8)(c), Florida Statutes.

In this case, however, the two questions are inextricably

intertwined and can better be addressed if examined together.

36 . As noted in the closing paragraph of Florida

Administrative Code Rule 1S - 2. 009, the Department identified

several statutory bases for its authority to adopt Florida

Administrative Code Rule 1S - 2.009: Sections 20.10(3);

97.012(1); 100.371(3)(ren umbered as Section 100.371(2)) and (7);

and 101.161(2), Florida Statutes.

37 . The fir st two statutory sections ar e general grants of

rulemaking authority. Section 20.10(3), Florida Statutes,

authorizes the Department of State to adopt rules to "administer

the provisions of law conferring duties upon the department. "

Section 97 .012(1), Fl orida Statutes, confers on the S ecretary of

State the responsibility to "[o] btain and maintain uniformity in

the interpretation and implementation of the election laws. " In

order to carry out this responsibility, the Department of State

is authorized in S ection 97.012(1), Florida Statutes, to " adopt

by rule uniform standards for the proper and equitable

interpretation and implementation of the requirements of

chapters 97 - 102 and chapter 105 of the Election Code. "

38 . Under the limitations imposed in the " flush left"

paragraph in Section 120.52(8), Florida Statutes, the general

grants of rulemaking authority are not sufficient of themselves

to confer on the Department the authority to adopt Florida

Administrative Code Rule 1S - 2.009(8); a "specific law to be

implemented" is also required. In the final paragraph of

Florida Administrative Code Rule 1S - 2.009, the Department cites

Sections 100.371 and 101.161, Florida Statutes, as the specific

laws implemented by the rule.

39 . Section 100.371, Florida Statutes, provides:

1) Constitutional amendments proposed by

initiative shall be placed on the ballot for

the general election, provided the

initiative petition has been filed with the

Secretary of State no later than February 1

of the year the general election is held. A

petition shall be deemed to be filed with

the Secretary of State upon the date the

secretary determines that valid and verified

petition forms have been signed by the

constitutionally required number and

distribution of electors under this code,

subject to the right of revocati on

established in this section.

(2) The sponsor of an initiative amendment

shall, prior to obtaining any signatures,

register as a political committee pursuant

to s. 106.03 and submit the text of the

proposed amendment to the Secretary of

State, with the form on which the signatures

will be affixed, and shall obtain the

approval of the Secretary of State of such

form. The Secretary of State shall adopt

rules pursuant to s. 120.54 prescribing the

style and requirements of s uch form. Upon

filing with the Secretary of State, the text

of the proposed amendment and all forms

filed in connection with this section must,

upon request, be made available in

a lternative formats.

(3) Each signature shall be dated when made

and s hall be valid for a period of 4 years

following such date, provided all other

requirements of law are met. The sponsor

shall submit signed and dated forms to the

appropriate supervisor of elections for

verification as to the number of registered

electors whose valid signatures appear

thereon. The supervisor shall promptly

verify the signatures within 30 days of

receipt of the petition forms and payment of

the fee required by s. 99.097. The

supervisor shall promptly record in the

statewide voter registration s ystem, in the

manner prescribed by the Secretary of State,

the date each form is received by the

supervisor, and the date the signature on

the form is verified as valid. The

supervisor may verify that the signat ure on

a form is valid only if:

(a) The fo rm contains the original

s ignature of the purported elector.

(b) The purported elector has accurately

recorded on the form the date on w hich he or

she signed the form.

(c) The form accurately sets forth the

purported elector's name, street address,

cou nty, and voter registration number or

date of birth.

(d) The purported elector is, at the time

he or she signs the form, a duly qualified

and registered elector authorized to vote in

the county in which his or her signature is

submitted.

The supervisor shall retain the signature

forms for at least 1 year following the

election in which the issue appeared on the

ballot or until the Division of Elections

notifies the supervisors of elections that

the committee which circulated the petition

is no longer see king to obtain ballot

position.

(4) The Secretary of State shall determine

from the signatures verified by the

supervisors of elections and recorded in the

statewide voter registration system the

total number of verified valid signatures

and the distribut ion of such signatures by

congressional districts. Upon a

determination that the requisite number and

distribution of valid signatures have been

obtained, the secretary shall issue a

certificate of ballot position for that

proposed amendment and shall ass ign a

designating number pursuant to s. 101.161 .

(5)(a) Within 45 days after receipt of a

proposed revision or amendment to the State

Constitution by initiative petition from the

Secretary of State, the Financial Impact

Estimating Conference shall comple te an

analysis and financial impact statement to

be placed on the ballot of the estimated

increase or decrease in any revenues or

costs to state or local governments

resulting from the proposed initiative. The

Financial Impact Estimating Conference shall

submit the financial impact statement to the

Attorney General and Secretary of State.

(b) The Financial Impact Estimating

Conference shall provide an opportunity for

any proponents or opponents of the

initiative to submit information and may

solicit info rmation or analysis from any

other entities or agencies, including the

O ffice of Eco nomic and Demographic Research.

(c) All meetings of the Financial Impact

Estimating Conference shall be open to the

public. The President of the Senate and the

Speaker o f the House of Representatives,

jointly, shall be the sole judge for the

interpretation, implementation, and

enforcement of this subsection.

1. The Financial Impact Estimating

Conference is established to review,

analyze, and estimate the financial impac t

of amendments to or revisions of the State

Constitution proposed by initiative. The

Financial Impact Estimating Conference shall

consist of four principals: one person from

the Executive Office of the Governor; the

coordinator of the Office of Economic and

Demographic Research, or his or her

designee; one person from the professional

staff of the Senate; and one person from the

professional staff of the House of

Representatives. Each principal shall have

appropriate fiscal expertise in the subject

matte r of the initiative. A Financial

Impact Estimating Conference may be

appointed for each initiative.

2. Principals of the Financial Impact

Estimating Conference shall reach a

consensus or majority concurrence on a clear

and unambiguous financial impact s tatement,

no more than 75 words in length, and

immediately submit the statement to the

Attorney General. Nothing in this

subsection prohibits the Financial Impact

Estimating Conference from setting forth a

range of potential impacts in the financial

impac t statement. Any financial impact

statement that a court finds not to be in

accordance with this section shall be

remanded solely to the Financial Impact

Estimating Conference for redrafting. The

Financial Impact Estimating Conference shall

redraft the f inancial i mpact statement

within 15 days.

3 . If the members of the Financial Impact

Estimating Conference are unable to agree on

the statement required by this subsection,

or if the Supreme Court has rejected the

initial submission by the Financial Impac t

Estimating Conference and no redraft has

been approved by the Supreme Court by 5 p.m.

on the 75th day before the election, the

following statement shall appear on the

ballot pursuant to s. 101.161 (1): "The

financial impact of this measure, if any,

cannot be reaso nably determined at this

time."

(d) The financial impact statement must be

separately contained and be set forth after

the ballot summary as required in

s. 101.161 (1).

(e)1. Any financial impact statement that

the Supreme Court finds not to be in

accordance with this subsection shall be

remanded solely to the Financial Impact

Estimating Conference for redrafting,

provided the court's advisory opinion is

rendered at least 75 days before the

election at which the question of ratifying

the amendme nt will be presented. The

Financial Impact Estimating Conference shall

prepare and adopt a revised financial impact

statement no later than 5 p.m. on the 15th

day after t he date of the court's opinion.

2. If, by 5 p.m. on the 75th day before the

electio n, the Supreme Court has not issued

an advisory opinion on the initial financial

impact statement prepared by the Financial

Impact Estimating Conference for an

initiative amendment that otherwise meets

the legal requirements for ballot placement,

the finan cial impact statement shall be

deemed approv ed for placement on the ballot.

3 . In addition to the financial impact

statement required by this subsection, the

Financial Impact Estimating Conference shall

draft an initiative financial information

statement . The initiative financial

information statement should describe in

greater detail than the financial impact

statement any projected increase or decrease

in revenues or costs that the state or local

governments would likely experience if the

ballot measur e were approved. If

appropriate, the initiative financial

information statement may include both

estimated dollar amounts and a description

placing the estimated dollar amounts into

context. The initiative financial

information statement must include bot h a

summary of not more than 500 words and

additional detailed information that

includes the assumptions that were made to

develop the financial impacts, workpapers,

and any other information deemed relevant by

the Financia l Impact Estimating Conference.

4. The Department of State shall have

printed, and shall furnish to each

supervisor of elections, a copy of the

summary from the initiative financial

information statements. The supervisors

shall have the summary from the initiative

financial information statements available

at each polling place and at the main office

of the superv isor of elections upon request.

5. The Secretary of State and the Office of

Economic and Demographic Research shall make

available on the Internet each initiative

financial i nformation statement in its

entirety. In addition, each supervisor of

elections whose office has a website shall

post the summary from each initiative

financial information statement on the

website. Each supervisor shall include the

Internet addresses fo r the information

statements on the Secretary of State's and

the Office of Economic and Demographic

Research's websites in the publication or

mailing required by s. 101.20.

(6)(a) An elector's signature on a petition

form may be revoked within 150 days o f the

date on which he or she signed the petition

form by submitting to the appropriate

supervisor of elections a signed petition -

revocation form adopted by rule for this

pur pose by the division.

(b) The petition - revocation form and the

manner in which s ignatures are obtained,

submitted, and verified shall be subject to

the same relevant requirements and

timeframes as the corresponding petition

form and processes under this code and shall

be approved by the Secretary of State before

any signature on a pet iti on - revocation form

is obtained.

(c) Supervisors of elections shall provide

petition - revocation forms to the public at

all main and branch offices.

(d) The petition - revocation form shall be

filed with the supervisor of elections by

February 1 precedi ng the next general

election or, if the initiative amendment is

not certified for ballot position in that

election, by February 1 preceding the next

successive general election. The supervisor

of elections shall promptly verify the

signature on the petiti on - revocation form

and process such revocation upon payment, in

advance, of a fee of 10 cents or the actual

cost of verifying such signature, whichever

is less. The supervisor shall promptly

record each valid and verified petition -

revocation form in the s tatewide voter

registration system in the manner prescribed

by the Secretary of State.

(7) The Department of State may adopt rules

in accordance with s. 120.54 to carry out

the provisions of subsections (1) - (6).

(8) No provision of this code shall be

d eemed to prohibit a private person

exercising lawful control over privately

owned property, including property held open

to the public for the purposes of a

commercial enterprise, from excluding from

such property persons seeking to engage in

activity supp orting or opposing initiative

amendments.

40 . Section 101.161, Florida Statutes, governs the

submission of a "constitutional amendment or other public

measure . . . to the vote of the people" in an election or

referendum.

41 . In addition to the general grants of rulemaking

authority in Sections 20.10(3) and 97.012(1), Florida Statutes,

t he Department cites Section 100.371(2) and (7), Florida

Statutes, quoted above, as specific authority for the adoption

of Florida Administrative Code Rule 1S - 2.009 . The grant of

rulemaking authority in Section 100.371(2), Florida Statutes,

limits the Department's rulemaking authority to rules

"prescribing the style and requirements" of constitutional

amendment initiative petition forms . The grant of rulemaking

authority in Section 100.371(7), Florida Statutes, limits the

Department's authority to adopt rules to implement ing the powers

and duties set forth in Section 100.371(1) through (6), Florida

Statutes , which govern the contents of constitutional amendment

initiative petition forms ; the requirement that such forms be

submitted to the Secretary of State for approval ; the

requirement that such forms be submitted to the various

supervisors of elections for verification of signature s; the

requirement that a financial impac t statement be prepared for

inclusion on the ballot, the requirement that such forms be

filed with the Secretary of State; and the right to revocation

and requirements for revocation petition forms.

42 . Finally, Section 101.161(2), Florida Statutes, is

ci ted by the Department as specific authority for its adoption

of Florida Administrative Code Rule 1S - 2.009. That statute

grants to the Department of State the authority to adopt rules

relating specifically to the approval by the Secretary of State

of the s ubstance and ballot title of a constitutional amendment

proposed by initiative and to the assignment of a designating

number for each proposed amendment, as follows:

The substance and ballot title of a

constitutional amendment proposed by

initiative shall be prepared by the sponsor

and approved by the Secretary of State in

accordance wi th rules adopted pursuant to

s. 120.54. The Department of State shall

give each proposed constitutional amendment

a designating number for convenient

reference. This number designation shall

appear on the ballot. Designating numbers

shall be assigned in the order of filing or

certification and in accordance with rules

adopted by the Department of State. The

Department of State shall furnish the

designating number, the ball ot title, and

the substance of each amendment to the

supervisor of elections of each county in

which such amendment is to be voted on.

§ 101.161(2), Fla. Stat.

43 . The "anti - bundling" provision of Florida

Administrative Code Rule 1S - 2.009(8) prescribes the manner in

which constitutional amendment initiative petition s which have

been approved by the Secretary of State may be presented to the

public for signature. The most specific grant of rulemaking

authority cited by the Department is in Section 100.3 71(2),

Florida Statutes, which requires the Department to adopt rules

governing the "style and requirements" for initiative petition

forms . This provision does not, under an y reasonable

interpretation, encompass the authority to adopt a rule

prescribing t he manner in which approved constitutional

amendment initiative petitions can be presented to the public

for signature .

44 . Section 100.371(7), Florida Statutes, is also a

relatively specific grant of rulemaking authority for the

Department to adopt rules implementing and interpreting the

provisions of Section 100.371(1) through (6), Florida Statutes .

N othing in those statutory subsections , however, gives the

Department the power or duty to prescribe the manner in which

approved constitutional amendment i nitiative petitions can be

presented to the public for signature.

45 . The grant of rulemaking authority in

Section 101.161(2), Florida Statutes, limits the Department to

adopting rules governing the "submission and approval" of the

substance and ballot ti tle of constitutional amendment

initiative petitions and to the assignment of designating

numbers; there is no thing in Section 101.161, Florida Statutes,

that grants the Department the specific power or duty to

prescribe the manner in which approved consti tutional amendment

initiative petitions can be submitted to the public for

signature. 3

46 . Finally, nothing in Section 100.371 , Florida Statutes,

or in Section 101.161, Florida Statutes, supports the use of the

general grants of rulemaking authority in Se ctions 20.10(3) and

97.012(1), Florida Statutes, to adopt limitations on the manner

in which approved constitutional amendment initiative petitions

can be submitted to the public for signature.

47 . For these reasons, FDF has met its burden of proving

by a preponderance of the evidence that Florida Administrative

Code Rule 1S - 2.009(8) is an invalid exercise of delegated

legislative authority . It exceeds the rulemaking authority

granted to the Department in Sections 20.10(3), 97.012(1),

100.371(2) and (7) , and 101.161(2), Florida Statutes , as

prohibited by Section 120.52(8)(b), Florida Statutes, and it

enlarges and modifies the provisions of Sections 100.371 and

101.161, Florida Statutes, the specific provisions of law

implemented by Florida Administrative C ode Rule 1S - 2.009 ,

neither of which mention the manner in which a n approved

constitutional amendment initiative petition can be presented to

the public for signature , as prohibited by Section 120.52(8)(c),

Florida Statutes.

B. Validity of Florida Admini strative Code Rule 1S -

2.009(8) pursuant to Section 120.52(8)(e), Florida

Statutes

48 . A rul e is invalid pursuant to Section 120.52(8)(e),

Florida Statutes, if it is arbitrary, defined as " not supported

by logic or the necessary facts " or capricious, defined as

" adopted without thought or reason. "

49 . The FDF has failed to meet its burden of proving by a

preponderance of the evidence that Florida Administrative Code

Rule 1S - 2.009(8) is arbitrary or capricious. In adopting

Florida Admin istrative Code Rule 1S - 2.009(8), the Department

could have been addressing the concerns regarding fraud in the

constitutional amendment initiative petition process addressed

in the 2006 staff analysis for Committee Substitute Bill 720 . A

limitation o n the manner in which constitutional amendment

initiative petitions can be presented to the public for

signature is logically related to the elimination of fraud

because it would require a person signing a constitutional

amendment initiative petition to complet e the personal

information required by Florida Administrative Code Rule 1S -

2.009(2) (c) for each petition, thereby alerting the public that

two or more petitions were being presented for signature.

50 . While the goal of the Department in adopting Florida

A dministrative Code Rule 1S - 2.009(8) may be laudable, in the

absence of a law specifically giving the Department the power to

regulate the manner in which constitutional amendment initiative

petitions are presented to the public for signature, the

Departmen t does not have the authority to adopt a rule

prohibiting "bundling."

Attorneys fees and costs

51 . Section 120.595, Florida Statutes, provides in

pertinent part:

(3) CHALLENGES TO EXISTING AGENCY RULES

PURSUANT TO SECTION 120.56 (3). -- If the court

or adm inistrative law judge declares a rule

or portion o f a rule invalid pursuant to

s. 120.56 (3), a judgment or order shall be

rendered against the agency for reasonable

costs and reasonable attorney's fees, unless

the agency demonstrates that its actions

were substantially justified or special

circumstances exist which would make the

award unjust. An agency's actions are

"substantially justified" if there was a

reasonable basis in law and fact at the time

the actions were taken by the agency. If

the agency pr evails in the proceedings, the

court or administrative law judge shall

award reasonable costs and reasonable

attorney's fees against a party if the court

or administrative law judge determines that

a party participated in the proceedings for

an improper pu rpose as defined by paragraph

(1)(e). No award of attorney's fees as

provided by this subsection shall exceed

$15,000 .

52 . FDF is the prevailing party in this proceeding brought

pursuant to Section 120.56(3), Florida Statutes, and is,

therefore, entitle d to an award of reasonable attorney's fees

and costs, not to exceed $15,000.00, if the Department is unable

to prove "that its actions were substantially justified or

special circumstances exist which would make the award unjust."

§ 120.595(3), Fla. Stat . Accordingly, jurisdiction is retained

so that an evidentiary hearing may be conducted to determine if

FDF is entitled to an award reasonable attorney's fees and costs

against the Department and, if so, the amount that should be

awarded.

CONCLUSION

Base d on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED

1. Florida Administrative Code Rule 1S - 2.009(8) is an

invalid exercise of delegated legislative authority pursuant to

Section 120.52(8)(b) and (c), Florida Statutes.

2. Jurisdictio n is retained to determine whether

FairDistrictsFlorida is entitled to an award of attorney's fees

and costs against the Department of State and, if so, the amount

of attorney's fees and costs to be awarded.

3. The parties shall file a joint status report with the

Division of Administrative Hearings on or before March 12, 2008,

in which they shall provide an estimate of the length of time

necessary to conduct an evidentiary hearing on the entitlement

to and amount of attorney's fees and costs and several d ates on

which the parties are available for hearing.

DONE AND ORDERED this 2 8 th day of February , 200 8 , in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA M. HART

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 2 8 th day of February , 200 8 .

ENDNOTES

1 / All references to the Florida Statutes herein are to the 2007

edition unless otherwise indicated.

2 / FDF also alleged in the amended petition that the rule was

not supported by competent substantial evidence under Section

120.52(8)(f), Florida Statutes; however, the Petitioner withdrew

this claim in the Pre - Hearing Stipulation.

3 / Consideration has been given to the stipu lated facts that an

"anti - bundling" provision was included in proposed legislation

submitted during the 2006 legislative session but was not

enacted into law and that the Legislature made significant

amendments to Section 100.371, Florida Statutes, during the 2007

legislative session but that none of the amendments prohibited

bundling. The parties urge that an inference be drawn, on the

one hand, that the Legislature did not want to prohibit the

"bundling" of constitutional amendment initiative petitions o r,

on the other hand, that the Legislature approved the

Department's "anti - bundling" rule and felt it unnecessary to

enact a statute prohibiting this practice. Because the

Legislature's failure to amend Section 100.371, Florida

Statutes, to include an "an ti - bundling" provision is inherently

ambiguous, any attribution of meaning to this failure would be

pure speculation. See Day Cruise , 794 So. 2d at 704, n. 8.

Such speculation would add nothing to the legal analysis of the

validity of Florida Administrat ive Code Rule 1S - 2.009(8).

COPIES FURNISHED:

Mark Herron, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

Gary J. Holland, Esquire

Department of State

R.A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399

F. Scott Boyd, Executive Director

and General Counsel

Administrative Procedures Committe e

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

Lynn Hearn, General Counsel

Department of State

R.A. Gray Building

500 S outh Bronough Street

Tallahassee, Florida 32399 - 0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affe cted 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 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

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

be reviewed.