12-000417 Florida Elections Commission vs. Josue Larose Status: Closed DOAH Final Order on Monday, July 30, 2012.

Summary: Due to the absence of a timely request by Respondent for a formal hearing before DOAH, jurisdiction to conduct a formal hearing rests exclusively with the Florida Elections Commission pursuant to section 106.25(5), Fla. Stat. (2011).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 12 - 0 417

)

JOSUE LAROSE, )

)

Respondent. )

______________ ___________________)

FINAL ORDER OF DISMI SSAL

In an Order to Show Cause issued July 23, 2012, the

undersigned directed the parties to show cause, no l ater than

July 27, 2012, why the Division of Administrative Hearings

("DOAH") should not dismiss this case for lack of jurisdiction .

Thereafter, on July 25, 2012, the parties submitted responses to

the Order to Show Cause, which the undersigned has considered.

For the reasons detailed below, jurisdiction to hold a

formal hearing in this cause resides exc lusively with Florida

Elections Commission ("FEC") pursuant to section 106 . 25(5),

Florida Statutes (2011). In brief, because Respondent did not

submit a timely request for a hearing before DOAH, t he FEC is

the only quasi - judicial tribunal au thorized to ad judicate the

pending charges. This case, having been filed improvidently

with DOAH, must therefore be dismissed to enable the FEC to

fulfill its statutory obligations .

I. Background

On December 6, 2011, the FEC filed an Order of Probable

Cause ("OPC") ÏÏ the equivalent of an administrative complaint ÏÏ

agains t Respondent, which alleged more than 2,000 violations of

various provisions of chapter 106, Florida Statutes. Both the

OPC and a Notice of Rights ("Notice" ) were forwarded promptly to

Respondent. Am ong other things, the Notice indicated clearly

that if Respondent desired a formal hearing before an

administrati ve law judge , a request would need to be made within

30 days from the date the OPC was filed ÏÏ i.e., Thursday,

January 5, 2012 ÏÏ not served. Th e Notice provided further that

if Respondent did not request a hearing before DOAH (or settle

the matter by a consent order) within 30 days of the filing

date , 1 / the case would be "sent to the Commission and

[Respondent ] will be entitled to a formal or inf ormal hearing."

Subsequently, on Friday, January 6, 2012, at approximately

9:00 p.m., Respondent faxed a correspondence (dated January 6)

to the FEC that requested a formal hearing. Notwithstanding the

fact that the request was made two business da ys late 2 / and

contained no indication that Respondent desired a formal hearing

before DOAH ÏÏ the relevant portion of Respondent's request reads,

"I send you this letter to request a Formal Hearing" ÏÏ the FEC

forwarded the matter to DOAH for the assignment of an

administrative law judge.

Thereafter, on July 23, 2012, the undersigned issued an

Order to Show Cause, 3 / which provided, in relevant part:

As reflected by the [language of section

request for a hearing to be cond ucted by an

ALJ, it is the sole responsibility of the

FEC to hold a hearing ÏÏ either formal or

informal, depending upon the existence of

disputed issues of material fact ÏÏ and issue

a final order. In other words, jurisdiction

rests exclusively with the FEC unless a

respondent makes a timely, affirmative

election for an ALJ hearing.

It appears . . . that Respondent submitted

an untimely (by at least one day) request

for a formal hearing to be co nducted by an

ALJ. Accordingly, . . . the parties shall

show cause in writing why the undersigned

should not dismiss this cause for lack of

jurisdiction and return the matter to the

FEC to conduct a final hearing.

(emphasis in original).

In his response to the Order to Show Cause, Respondent

concedes that DOAH lacks jurisdiction to adjudicate this matter

and requests that his case be returned to the FEC:

Declaration of Non Jurisdiction: I want to

declare that you don't have the jurisdiction

to litigate this case and I need to ask you

to dismiss this case and cl ose it

immediately. You can send this case back to

[the FEC] for non jurisdiction . . . . I

wait for your order to dismiss this case and

close it immediately.

In contrast, the FEC argues in its response that this

matter is properly before DOAH because: (1) the 2010 vers ion of

section 106.25(5) is applicable, despite the fact that the

amend ed 2011 version took effect more than six months before the

OPC was filed; and (2) assuming the 2011 version of section

106.25 controls , DOAH may exercise jurisdictio n in this cause

even in the absence of a timely request.

Contrary to Petitioner's assertion, the 2011 codification

of section 106.25(5) governs Respondent's untimely request for

formal hearing. Further, the current version of section

106.25(5) provides that the FEC alone possesses jurisdiction to

hold formal hearings in situations where a respondent makes a

belated request for a formal hearing. Each of these issues is

discussed below.

II. Analysis

As alluded to previously , section 106.25 (5) und erwent

revision during the 2011 legislative session. Prior to 2011,

that section read:

Unless a person alleged by the Elections

Commission to have committed a violation of

this chapter or chapter 104 elects, within

30 days after the date of the filing of the

commission's allegations, to have a formal

or informal hearing conducted before the

commission, or elects to resolve the

complaint by consent order, such person

shall be entitled to a formal administrative

hearing conducted by an administrative law

jud ge in the Division of Administrative

Hearings. The administrative law judge in

such proceedings shall enter a final order

subject to appeal as provided in s. 120.68.

§ 106 .25(5), Fla. Stat. (2010).

The foregoing language demonstrates that under the 2 010

version of section 106.25(5) , a respondent who submitted a late

request for a formal heari ng to be held by the FEC (or made no

request at all ) was entitled to a hearing at DOAH before an

administrative law judge. In other words, the default p rocedure

was that DOAH would hear elections cases unless a respondent

requested, timely and affirmatively, that the FEC itself conduct

the hearing . The subsequent revision to section 106 .25(5),

which took effect on May 19, 2011 ÏÏ well before Petitioner filed

its OP C against Respondent ÏÏ reversed the default procedure

completely . Specifically, the amended version of section

106 .25(5) provides :

A person alleged by the Elections Commission

to have committed a violation of this

chapter or chapter 104 may elect, as a

mat ter of right, within 30 days after the

date of the filing of the commission's

allegations, to have a formal administrative

hearing conducted by an administrative law

judge in the Division of Administrative

Hearings . The administrative law judge in

such pr oceedings shall enter a final order,

which may include the imposition of civil

penalties, subject to appeal as provided in

s. 120.68. If the person does not elect to

have a hearing by an administrative law

judge and does not elect to resolve the case

by a consent order, the person is entitled

to a formal or informal hearing conducted

before the commission .

§ 106.25(5), Fla. Stat. (2011) (emphasis added).

As the plain and unambiguous statutory language reveals ,

the current version of section 106.25(5) de signates the FEC ÏÏ and

only the FEC ÏÏ as the quasi - judicial tribunal charged with the

duty of conducting a formal hearing unless a respondent makes a

timely request for a hearing before DOAH. Stated differently,

DOAH's jurisdiction in these matters is condi tioned on an

affirmative, timely - submitted request for a DOAH proceeding,

without which DOAH is not authorized to conduct a final hearing.

This interpretation is supported by the Staff Analysis of the

2011 amendment , which reads :

The bill reverses the cur rent default

procedure whereby alleged election law

violations are transferred to the Division

of Administrative Hea rings (DOAH) unless the

party charged with the offense elects to

have a hearing before the Commission. It

mandates that the the alleged vio lator

affirmatively request a hearing at DOAH

within 30 days after the Commission's

probable cause determination, or the

Commission will hear the case.

Fla. H. Gov't Op. Subcomm., CS/HB 1355 (2011) Staff Analysis at

9. (Apr. 11, 2011); see also Fla. H . State Affairs Comm.,

CS/CS/HB 1355 (2011) Final Bill Analysis at 14 - 15 (June 29,

2011).

Significantly, the circumstances under which DOAH is

permitted to hear allegations of election law violations ÏÏ i.e.,

where a respondent makes a timely , specific re quest for a

hearing before DOAH ÏÏ cannot be expanded by the consent of the

parties or by a delegation of the FEC's responsibility . See

Procacci v. Dep't of Health & Rehabilitative Servs. , 603 So. 2d

1299 , 1300 - 01 (Fla. 1st DCA 1992). In Procacci , a hearin g

officer determined that the Department of Health and

Rehabilitative Services ("HRS") had failed to follow its own

procedures concerning the evaluation of competitive bids.

Thereafter, b y stipulation of the bidding parties and HRS, the

hearing officer co nducted a de novo review of the bids and made

a recommendation regarding which party should receive the award.

Id. at 1300. HRS entered a final order adopting the hearing

officer's recommendations, which one of the losing bidders

appealed. In reversing the final or der, the court observed that

because the legislature had placed upon HRS "the primary

responsibility for evaluating bids and selecting the bidd er to

whom the contract or lease at issue should be awarded," id. at

1300, HRS was precluded from del egating its responsibility to

the hearing officer:

An agency may not delegate to a hearing

officer its legislatively prescribed

responsibilities.

* * *

Thus, HRS had no authority to enter into the

stipulation by which it purported to agree

that the heari ng officer could determine

which of the bidders should be awarded the

lease. Moreover, because it was the

responsibility of HRS to evaluate the bids,

and then to select the bidder to whom the

lease should be awarded, the hearing officer

lacked jurisdictio n to make such a decision .

In such a case, jurisdiction cannot be

conferred by agreement or consent of the

parties; nor can it be based upon waiver or

estoppel.

Id. at 1300 - 01 (emphasis added).

The First District's decision in Swebilius v. Florida

Const ruction Industry Licensing Board , 365 So. 2d 1069 (Fla. 1st

DCA 1979), which the court relied upon in Procacci , illustrates

further the principle that an agency may neither enlarge its

jurisdiction nor delegate such jurisdiction away . In Swebilius ,

a cont ractor was alleged to have performed substandard work in a

county in which a local contracting board existed. Id. at 1069.

Pursuant to section 468.112, Florida Statutes, the state

licensing board was required to forward the allegations to the

local board for further proceedings; only in situations where no

local board existed was the state board authorized to take

jurisdiction. Id. at 1070. Notwithstanding the requirements of

section 468.112, the state licensing board filed an

administrative complaint a gainst the builder, which was

subsequently forwarded to a hearing officer to conduct a formal

hearing . On appeal, the court reversed the final order entered

against the contractor on the grounds that state licensi ng board

lacked jurisdiction :

The act is c lear in its terms that only in

the event a local board does not exist is

FCI conferred jurisdiction to investigate,

hold hearings, and if need be, suspend or

revoke a license . . . . [A]n agency may not

enlarge its jurisdiction; nor can

jurisdiction be con ferred upon the agency by

agreement or consent of the parties . . . .

Since there was a local board, the Licensing

Board had no jurisdiction, and Swebilius is

not e stopped from now raising the point.

Id. at 1070 - 71; see also Booker Creek Pres., Inc., v. Southwest

Fla. Water Mgmt. Dist. , 534 So. 2d 419, 424 (Fla. 5th DCA 1988)

("The District cannot delegate its statutory duty to other state

agencies.").

Analogous to the statute in Swebilius , which authorized the

state board to exercise jurisdiction only when no local board

existed, the curre nt version of section 106.25(5) provides that

DOAH is authorized to hear election law cases only where a

respondent makes an affirmative election for a DOAH hearing

within 30 days. In all other situations ÏÏ such as the instant

case, where , indisputably, R espondent made an untimely 4 / (and

ambiguous) election ÏÏ it is the FEC's statutory charge to conduct

a formal hea ring. To find otherwise would require the

undersigned to ignore the obvious legislative intent behind 2011

revision to section 106.25(5): to make the FEC the def ault

tribunal . Accordingly, it is concluded that jurisdiction to

hold a formal hearing in this cause is vested exclusively with

the FEC. 5 /

Finally , the undersigned will addres s FEC's contention tha t

the current version of 106.25(5) does not apply. In particular,

the FEC asserts that the 2011 amendment to section 106.25(5) was

substantive in nature (as opposed to procedural) and cannot be

applied retroactively 6 / in the absence of clear evidence of

l egislative intent.

Contrary to FEC's argument, and as demonstrated by Florida

Birth - Related Neurological Injury Compensation Association v.

DeMarko , 640. So. 2d 181 (Fla. 1st DCA 1994), the 2011 amendment

to section 106.25(5) that modified the circumsta nces under which

DO AH and the FEC will hear alleged election law violations was a

procedural change. In DeMarko , the parent of an injured child

brought a claim under the Florida Birth - Related Neurological

Injury Compensation Act ("the Act"). Pursuant to the law in

effect at the time of the injury, cases brought under the Act

were heard by the Office of the Judges of Compensation Claims

("JCC"). Id. at 182. After the completion of the final

hearing, but before the JCC entered a final order in the matter,

the Act was modified such that jurisdiction to hear birth -

related injury cases was transferred to DOAH . Id. at 182. A

petition for writ of prohibition that challenged the JCC's

authority to enter a final order was subsequently filed, which

the First Dis trict granted:

While we agree that judicial resources would

be conserved if the judge of compensation

claims could enter the final order, he lacks

jurisdiction to do so. It is well - settled

that remedial or procedural statutes do not

fall within the consti tutional prohibition

against retroactive legislation and they may

be held immediately applicable to pending

cases. A statute transferring jurisdiction

from one quasi - judicial tribunal to another

is procedural in nature . . . . Because

section 766.304 cont ains no explicit savings

clause, the judge of compensation claims has

lost jurisdiction over the cause and

jurisdiction now lies with the Division of

Administrative Hearings.

Id. at 182 (emphasis added)(internal citations and quotations

omitted); Russell Corp. v. Jacobs , 782 So. 2d 404, 405 - 06 (Fla.

1st DCA 2001)(holding that amendment to section 440.09(4),

Florida Statutes, which conferred jurisdiction to the JCC to

determine whether fraud occurred in wor kers' compensation cases,

was a procedural change); Kerr Constr. v. Peters Contracting,

Inc. , 767 So. 2d 610, 611 - 12 (Fla. 5th DCA 2000)(holding that

statutory amendment that voided forum selection clauses in

contracts for improvements to real property was procedural in

nature; "[T]he statute does not affe ct the substantive rights of

the parties. It merely requires that those substantive rights

be adjudicated by a Florida Court.") .

Applying the foregoing authority to the instant matter, the

2011 amendment to section 106.25(5) ÏÏ which took effect mor e than

six months before Respondent was charged ÏÏ was procedural in

nature because it modified the circumstances under which DOAH

and the FEC hear election law cases; it did not effect a

substantive change by, for example, redefining the elements of

an offe nse . For these reasons, the current version of section

106.25(5) controls.

III. Conclusion

For the reasons detailed above, jurisdiction to hold a

formal hearing in this matter resides solely with the FEC due to

the absence of a timely request for a hear ing to be conducted

before DOAH. It is, therefore,

ORDERED that:

1. The file of the Division of Administrative Hearings in

the above - captioned matter is closed.

2. This dismissal is without prejudice to Respondent's

right to a formal hearing before th e FEC .

DONE AND ORDERED this 30th day of July, 2012 , in

Tallahassee, Leon County, Florida.

S

Edward T. Bauer

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalach ee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.sta t e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of July, 2012.

ENDNOTES

1 / Although neither party has raised the issue, it should be

noted that the FEC's service of the Order of Probable Cause and

Notice of Rights by U.S. Mail did not result in an extension of

the 30 - day deadline to make a request for hearing. See Fla.

Admin. Code R. 28 - 106.103 ("No additional time shall be added

. . . when the period of time begins pursuant to a type of

notice described in Rule 28 - 106.111, F.A.C."); Cann v. Dep't of

Child. & Fam. Servs. , 813 So. 2d 237, 238 - 39 (Fla. 2d DCA 2 002)

("Although Florida Administrative Code Rule 28 - 106.103 allows an

additional five days for mailing in some circumstances, that

rule expressly excepts requests for hearing under rule 28 -

106.111.").

2 / See Fla. Admin. Code. R. 28 - 106.104(3)("Any document received

by the office of agency clerk after 5:00 p.m. shall be filed as

of 8:00 a.m. on the next regular business day").

3 / A tribunal may raise the issue of jurisdiction sue sponte.

See DNA Ctr. for Neurology & Rehab. v. Progressive Am. Ins . Co. ,

13 So. 3d 74, 75 (Fla. 5th DCA 2009).

4 / Significantly, Respondent's pleading in response to the Order

to Show Cause contains no assertion that the hearing request

dated January 6, 2012, was filed timely, nor does it include any

allegation that he was misled into inaction or prevented from

asserting his rights. Further, the record demonstrates that the

substance of the FEC's Notice of Rights was consistent with the

terms of 106.25(5), Florida Statutes (2011).

5 / During a July 23, 20 12, telephone conference with the

parties, counsel for the FEC conceded the Respondent is entitled

to a formal hearing (as opposed to informal) due to the

existence of disputed issues of fact.

6 / The undersigned is skeptical that the facts of the inst ant

case implicate any issue of retroactivity, as it is undisputed

that the operative event in this context ÏÏ i.e., the FEC's filing

of the OPC against Respondent ÏÏ occurred more than six months

after section 106.25(5) was amended. In any event, the

statuto ry amendment was mere ly procedural in nature and must

theref ore be applied retroactively.

COPIES FURNISHED :

Rosanna Catalano, Executive Director

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399

Patricia Rushing , Clerk

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399

Eric M. Lipman, Esquire

Florida Elections Commission

107 West Gaines Street

Collins Building, Suite 224

Tallahassee, Flori da 32399

Jacqueline M. Davison, Esquire

Florida Elections Commission

107 West Gaines Street

Collins Building, Suite 224

Tallahassee, Florida 32399

Josue Larose

929 Southwest 15th Street

Deerfield Beach, Florida 33441

NOTICE OF RIGHT TO JUDICIAL REVI EW

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 t he original notice of appeal with the 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 Distri ct where the party resides. The notice of

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

be reviewed.