09-004732RX Brian L. Blair vs. Florida Elections Commission Status: Closed DOAH Final Order on Friday, March 5, 2010.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIAN L. BLAIR, )

)

Petitioner, )

)

vs. ) Case No. 09-4732RX

)

FLORIDA ELECTIONS COMMISSION, )

)

Respondent. )

)

FINAL ORDER

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

in Tallahassee, Florida, on January 27, 2010, before Jeff B.

Clark, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Emmett Mitchell, IV, Esquire

200 West College Avenue, Suite 311B

Tallahassee, Florida 32301

For Respondent: Edward A. Tellechea, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue presented is whether Florida Administrative Code

Rule 2B-1.002 is an "invalid exercise of delegated legislative

authority."

PRELIMINARY STATEMENT

On August 27, 2009, Petitioner filed a Petition with the

Division of Administrative Hearings ("DOAH") requesting an

administrative hearing to determine the validity of Florida

Administrative Code Rule 2B-1.002, effective December 25, 2009,

alleging that the rule is an invalid exercise of delegated

legislative authority. By Order dated August 28, 2009, DOAH's

Chief Judge determined that the Petition was in compliance with

the requirements of Section 120.56, Florida Statutes, and

assigned the case to the undersigned.

On September 2, 2009, a Notice of Hearing was entered

scheduling the case for October 13, 2009, in Tallahassee,

Florida. On September 30, 2009, an agreed Motion to Continue

was filed; and on October 6, 2009, an Order Granting Continuance

was entered requiring the parties to advise within ten days the

dates of their mutual availability for the final hearing. On

October 16, 2009, the parties filed a Joint Response to Order

Granting Continuance, and the final hearing was rescheduled for

January 12, 2010.

On November 4, 2009, the parties jointly filed a Proposed

Schedule agreeing to the following:

a. Parties shall submit proposed final orders by

December 22, 2009.

b. Parties shall submit responses to the

proposed final orders by January 5, 2010.

c. Parties shall proceed with oral arguments on

the law at a brief hearing on January 12, 2010.

Based on the foregoing agreed schedule, a Notice of Hearing

was entered scheduling oral arguments on the law for January 12,

2010.

On December 18, 2009, the parties filed a Joint Motion for

Continuance proposing the following schedule:

a. Parties shall submit proposed final orders by

January 8, 2010.

b. Parties shall submit responses to the

proposed final orders by January 19, 2010.

c. Parties shall proceed with oral arguments on

the law at a brief hearing on January 27, 2010.

On December 22, 2010, an Order Granting Continuance and

Rescheduling Hearing was entered scheduling oral argument on the

law for January 27, 2010, as agreed by the parties.

The hearing (arguments on the law) took place as

rescheduled. The parties were given an opportunity to submit

additional written arguments on the law following the hearing.

Respondent filed a Memorandum in Support of Petitioner's Rule

Challenge on February 10, 2010.

All statutory references are to Florida statutes (2008),

unless otherwise noted.

STIPULATED FINDINGS OF FACT

The following facts have been stipulated by the parties:

1. Petitioner, Brian L. Blair, is a Respondent in a case

before DOAH styled, Florida Elections Commission v. Brian L.

Blair , Case No. 09-2069, wherein the Florida Elections

Commission ("Commission") has charged Mr. Blair with two counts

of willfully accepting campaign contributions in excess of

$500.00 in violation of Subsection 106.19(1)(a), Florida

Statutes.

2. Petitioner filed a Petition to Determine Invalidity of

Existing Rule on August 28, 2009, wherein he alleges that the

Commission Rule, Florida Administrative Code Rule 2B-1.002,

constitutes an invalid exercise of delegated legislative

authority.

3. As a person subject to Chapter 106, Florida Statutes,

and accused of willfully violating one of its prohibitions,

Mr. Blair is substantially affected by the Commission's

application of Florida Administrative Code Rule 2B-1.002 to his

case and, therefore, has the requisite standing to bring this

action.

4. In 2007, the Florida Legislature repealed Section

106.37, Florida Statutes (2006), which contained a definition of

"willfulness" for purposes of Chapter 106, Florida Statutes.

That section was repealed by CS/HB 537 (Section 51, Chapter

2007-30, Laws of Florida), effective January 1, 2008.

5. Contemporaneous with the repeal of Section 106.37,

Florida Statutes, the same legislation amended Subsection

106.25(3), Florida Statutes, to provide that willfulness is "a

determination of fact." (§ 48, Chap. 2007-30, Laws of Florida,

effective January 1, 2008). Subsection 106.25(3), Florida

Statutes, currently provides:

(3) For the purposes of commission

jurisdiction, a violation shall mean the

willful performance of an act prohibited by

this chapter or chapter 104 or the willful

failure to perform an act required by this

chapter or chapter 104. Willfulness is a

determination of fact ; however, at the

request of the respondent, willfulness may

be considered and determined in an informal

hearing before the commission. (Emphasis

added.)

6. The 2007 Legislative Session ended on May 4, 2007;

CS/HB 537 was signed and approved by the Governor on May 22,

2007.

7. On May 24 and 25, 2007, Barbara Linthicum, executive

director of the Commission at the time, engaged in the following

exchange via email with the Commission's attorney, Edward A.

Tellechea, counsel of record in this case, regarding Florida

Administrative Code Rule 2B-1.002:

Ms. Linthicum: "Do you think we have

authority to add chapter 106 to the

willfulness rule?"

Mr. Tellechea: ". . . Someone will

challenge it[,] but what the heck[,] I'm

game."

Ms. Linthicum: "But, if you are game, I

think we should definitely go ahead before

January 1 comes along. You certainly do

have a good track record defending our

rules"

8. The amendment of Florida Administrative Code Rule

2B-1.002 was effective December 25, 2007. The repeal of the

definition of "willfulness" in Section 106.37, Florida Statutes,

became effective January 1, 2008.

9. The proposed rule amendment to Florida Administrative

Code Rule 2B-1.002 that is the subject of this proceeding was

reviewed in 2007 by the Joint Administrative Procedures

Committee of the Florida Legislature, pursuant to Section

120.545, Florida Statutes, prior to its adoption, and the

Committee made no written comments or filed any written

objections.

10. In order to determine whether willful violations of

Chapter 106, Florida Statutes, have occurred, the Commission

employs the definition of "willful" contained in Florida

Administrative Code Rule 2B-1.002, when making the factual

determination of willfulness.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction of the parties and subject matter. § 120.56, Fla.

Stat. (2009).

12. Petitioner is challenging Florida Administrative Code

Rule 2B-1.002, which provides:

Definitions.

For purposes of imposing a civil penalty

for violating Chapter 104 or 106, F.S., the

following definitions shall apply:

(1) A person acts “willful” or

“willfully” when he or she knew that, or

showed reckless disregard for whether his or

her conduct was prohibited or required by

Chapter 104 or 106, F.S.

(2) “Knew” means that the person was

aware of a provision of Chapter 104 or 106,

F.S., understood the meaning of the

provision, and then performed an act

prohibited by the provision or failed to

perform an act required by the provision.

(3) “Reckless disregard” means that the

person disregarded the requirements of

Chapter 104 or 106, F.S., or was plainly

indifferent to its requirements, by failing

to make any reasonable effort to determine

whether his or her acts were prohibited by

Chapter 104 or 106, F.S., or whether he or

she failed to perform an act required by

Chapter 104 or 106, F.S.

13. Section 120.56, Florida Statutes, allows a

substantially affected person to challenge a rule's facial

validity. Petitioner's standing is not in dispute.

14. An existing rule may be challenged pursuant to Section

120.56, Florida Statutes, on the grounds that it is an "invalid

exercise of delegated legislative authority." § 120.56(3)(a),

Fla. Stat. (2009).

15. A duly-promulgated agency rule will be considered

presumptively valid until it is shown that it is invalid by way

of a rule challenge. Petitioner bears the burden of proving by

a preponderance of the evidence that the challenged rule is an

invalid exercise of delegated legislative authority.

§ 120.56(3)(a), Fla. Stat. (2009).

16. Subsection 120.52(17), Florida Statutes, defines

"rulemaking authority" as follows:

"Rulemaking authority" means statutory

language that explicitly authorizes or

requires an agency to adopt, develop,

establish, or otherwise create any statement

coming within the definition of the term

"rule."

17. Petitioner asserts that Florida Administrative Code

Rule 2B-1.002 is an "invalid exercise of delegated legislative

authority," which means the action goes beyond the powers,

functions, and duties delegated by the Legislature. Petitioner

asserts Florida Administrative Code Rule 2B-1.002 is an invalid

exercise of delegated legislative authority, pursuant to

Subsection 120.52(8)(b), (c), Florida Statutes, which provides:

(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.

18. Subsections (8)(b) and (c) of Section 120.52, Florida

Statutes, must be read in pari materia with the closing

paragraph of Subsection (8), which provides as follows:

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

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 capricious 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 describing 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 enabling statute.

19. In discussing the interpretation of Subsection

120.52(8), Florida Statutes, the court in Board of Trustees of

the Internal Improvement Fund v. Day Cruise Association, Inc. ,

794 So. 2d 696, 700 (Fla. 1st DCA 2001), stated:

[A]agencies have rulemaking authority only

where the legislature has enacted a specific

statute, and authorized the agency to

implement it, and then only if the . . .

rule implements or interprets specific

powers or duties, as opposed to improvising

in an area that can be said to fall only

generally within some class of powers or

duties the Legislature has conferred.

On rehearing, the court clarified its opinion and stated:

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 or it

does not . . . [T]his question is one that

must be determined on a case-by-case basis.

(Emphasis in original.)

Board of Trustees of Internal Improvement Fund v. Day Cruise

Association, Inc. , 798 So. 2d 847 (Fla. 1st DCA 2001).

20. The Legislature's restrictive delegation of rulemaking

authority is further emphasized by the 2008 revision of

Subsection 120.52(17), Florida Statutes, where the definition of

rulemaking authority now includes the term "explicitly," and

states:

"Rulemaking authority" means statutory

language that explicitly authorizes or

requires an agency to adopt, develop,

establish, or otherwise create any statement

coming within the definition of the term

"rule."

21. An agency is required by Subsection 120.54(3)(a)1.,

Florida Statutes, to "reference to the grant of rulemaking

authority pursuant to which the rule is adopted"; Respondent

relies on Section 106.26, Florida Statutes, as the "authority"

for Florida Administrative Code Rule 2B-1.002. Section 106.26,

Florida Statutes, grants rulemaking authority in Subsections (1)

and (12).

22. Subsection 106.26(1), Florida Statutes, provides, in

pertinent part:

The commission shall, pursuant to rules

adopted and published in accordance with

chapter 120, consider all sworn complaints

filed with it and all matters reported to it

by the Division of Elections.

23. If the statutory provisions are among those Respondent

is specifically responsible for administering, Respondent's

construction of these provisions (as incorporated in the rule)

"should be upheld when it is within the rule of permissible

interpretations." Board of Podiatric Medicine v. Florida

Medical Association , 779 So. 2d 658, 660 (Fla. 1st DCA 2001).

24. "Legislative intent is the 'polestar' in

interpretation of statutory provisions." Blinn v. Department of

Transportation , 781 So. 2d 1103, 1106 (Fla. 1st DCA 2001).

Accordingly, an agency's construction of a statute that is

contrary to the plain legislative intent is not entitled to any

deference and must be rejected.

25. "Legislative intent must be derived primarily from the

words expressed in the statute. If the language is clear and

unambiguous," these words must be given effect. Florida

Department of Revenue v. Florida Municipal Power Agency , 789

So. 2d 320, 323 (Fla. 2001). In attempting to ascertain the

meaning of statutory language (and legislative intent), the

entire statute, along with related provisions, must be examined.

Woodham v. Blue Cross and Blue Shield of Florida , 829 So. 2d 891

(Fla. 2002).

26. The Legislature's 2007 repeal of Section 106.37,

Florida Statutes (2006), containing the definition of

"willfulness" and the contemporaneous amendment of Subsection

106.25(3), Florida Statutes, making willfulness "a determination

of fact," is a clear indication that the Legislature did not

perceive a need to define the term, nor did it foresee the

necessity of defining "willfulness" by rule. In fact, by

statute, it made the finding of "willfulness" a determination of

fact. "[I]t is presumed the Legislature intends to change the

law when it repeals or amends a statute." Smith v. Department

of Corrections , 961 So. 2d 1050 (Fla. 1st DCA 2007).

27. The clear intent of Subsection 106.26(1), Florida

Statutes, is to require Respondent to "consider all sworn

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

Division of Elections." Even though Subsection 106.26(1),

Florida Statutes, authorizes the adoption of rules by which

Respondent is to consider sworn complaints, Respondent's

reliance on this as its statutory authority is ill-advised.

There is no "explicit" statutory authority to define “willful”

or "willfulness" that can be read into the clear statutory

language.

28. By defining "willfulness" in Florida Administrative

Code Rule 2B-1.006, Respondent "enlarges, modifies, or

contravenes the specific provisions of law implemented." The

clear legislative intent in making "willfulness" a determination

of fact is to allow the trier of fact to make a determination of

"willfulness" based on the factual situation presented in each

case. By imposing its definition of "willfulness," Respondent

challenges the Legislature's decision to remove the definition

from the statute and modifies or contravenes the specific

provisions of the statutory revision by imposing its own

definition.

29. Ruling on Petitioner's request for reasonable

attorney's fees and costs is deferred for separate hearing where

Respondent shall have the opportunity to demonstrate

that its actions were substantially justified or special

circumstances exist which would make the award unjust.

FINAL ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that Florida Administrative Code Rule 2B-1.002

constitutes an invalid exercise of delegated legislative

authority, because in promulgating this rule, Respondent

exceeded its delegated legislative authority; and because the

rule enlarges, modifies, or contravenes the specific provisions

of the law being implemented.

DONE AND ORDERED this 5th day of March, 2010, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of March, 2010.

COPIES FURNISHED :

Eric Lipman, Acting Executive Director

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399-1050

Patricia Rushing, Clerk

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399-1050

Scott Boyd, Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

Liz Cloud, Program Administrator

Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399

Emmett Mitchell, IV, Esquire

200 West College Avenue, Suite 311B

Tallahassee, Florida 32301

Edward A. Tellechea, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing 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.