12-003282RX Raymond Colantonio, Et Al. vs. Department Of Law Enforcement Status: Closed DOAH Final Order on Tuesday, February 5, 2013.

Summary: Petitioners failed to prove that rule 11D-8.003(2), to the extent it approves the Intoxilyzer 8000 as a breath test device, is an invalid exercise of delegated legislative authority, within the meaning of section 120.52(8)(a), as they had alleged.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

Pursuant to notice, a hearing was conducted in this case

pursuant to sections 120.56, 120.569, and 120.57, Florida

Statutes, 1 / before Stuart M. Lerner, a duly-designated

administrative law judge of the Division of Administrative

Hearings (DOAH), on November 29, 2012, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert R. Berry, Esquire

Eisenmenger, Berry and Peters, P.A.

5450 Village Drive

Rockledge, Florida 32955

For Respondent: Ann Marie Johnson, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

STATEMENT OF THE ISSUE

Whether Florida Administrative Code Rule 11D-8.003(2) is an

"invalid exercise of delegated legislative authority" for the

reasons alleged in the petition filed by Petitioners.

PRELIMINARY STATEMENT

On October 8, 2012, Petitioners filed with DOAH a petition

seeking the entry of a final order determining that Florida

Administrative Code Rule 11D-8.003(2), a rule provision of the

Florida Department of Law Enforcement (FDLE), is an "invalid

exercise of delegated legislative authority," within the meaning

of section 120.52(8)(a), Florida Statutes, "to the extent it

includes a provision approving the Intoxilyzer 8000 for use as

an evidentiary breath test instrument in the State of Florida"

(Petition). With the agreement of the parties, the undersigned,

on October 19, 2012, scheduled an evidentiary hearing on the

Petition for November 29, 2012. He also, on that same date,

issued an Order of Pre-Hearing Instructions, which directed the

parties to, among other things, file a pre-hearing stipulation.

The parties filed their Pre-Hearing Stipulation on

November 28, 2012. In it, they provided the following "general

statement of each['s] position":

Petitioner[s]: Based on a) Section

120.54(3)(a), Florida Statutes (2002),

b) Section 120.54(3)(e), Florida Statutes

(2002), c) the First District's decision in

Manasota-88 Inc. v. DOER , 567 So.2d 895

(Fla. 1st DCA 1990) and d) the fact that the

Florida Department of Law Enforcement's

Alcohol Testing program had done approval

testing studies on the Intoxilyzer 8000

during the 2002 rules making process,

[Florida Administrative Code Rule] 11D-

8.003(2) (approving the Intoxilyzer 8000 as

a breath test instrument for use in Florida)

was an invalid exercise of delegated

legislative authority, because the State

never shared with the public in general and

the Administrative Procedures Committee and

the Secretary of State in particular,

approval studies done in April and May 2002.

In particular, the statement by the

Department purporting to constitute a

"detailed written statement of the facts and

circumstances justifying the rule" filed

with the Administrative Procedures Committee

and the Secretary of State prior to approval

omitted to include the results of those

studies or even suggest any such studies

were done.

Respondent [FDLE]: The Respondent fully

complied with all rule promulgation

requirements as they relate to the

challenged rules and forms, and such rules

and forms remain valid and in effect. The

Respondent exercised its delegated

legislative authority, pursuant to [s]ection

316.1932(1)(a)(2), Florida Statutes (2002),

in proper promulgation of Florida

Administrative Code Rule 11D-8.003(2).

The evidentiary hearing was held on November 29, 2012, as

scheduled. Two witnesses testified at the hearing: Laura

Barfield and Rafael Madrigal. In addition to the testimony of

these two witnesses, 25 exhibits (Joint Exhibits 1 through 25)

were offered and received into evidence.

At the conclusion of the taking of evidence at the hearing,

the undersigned announced, on the record, the following extended

deadlines, to which the parties had agreed: proposed final

orders to be filed no later than January 11, 2013; and the final

order to be issued no later than 30 days following the filing of

the last-filed proposed final order.

The Transcript of the hearing (consisting of one volume)

was filed with DOAH on January 2, 2013.

On January 9, 2013, FDLE filed an unopposed motion

requesting an extension of the proposed final order fling

deadline. By Order issued January 10, 2013, the motion was

granted and the proposed final order filing deadline was

extended to January 25, 2013.

Petitioners and FDLE timely filed their Proposed Final

Orders on January 25, 2013.

FINDINGS OF FACT

1. Petitioners are defendants in various pending

prosecutions in Brevard County, Florida. They all were charged

with driving with an unlawful breath alcohol level, after having

taken breath tests pursuant to the implied consent requirement

of section 316.1932(1)(a)1.a., Florida Statutes, which presently

provides, in pertinent part, that "[a]ny person who accepts the

privilege extended by the laws of this state of operating a

motor vehicle within this state is, by so operating such

vehicle, deemed to have given his or her consent to submit to an

approved chemical test or physical test including, but not

limited to, an infrared light test of his or her breath for the

purpose of determining the alcoholic content of his or her blood

or breath if the person is lawfully arrested for any offense

allegedly committed while the person was driving or was in

actual physical control of a motor vehicle while under the

influence of alcoholic beverages." 2 / They have also been charged

under the alternative theory of driving under the influence of

alcohol to the extent their normal faculties were impaired.

Under this theory of prosecution, the State can argue that with

a breath alcohol level in excess of .08, a defendant is presumed

to have been under the influence of alcohol to the extent his or

her normal faculties were impaired. 3 /

2. The state of Florida intends to offer evidence in each

of these cases that the defendant had an unlawful breath alcohol

level at the time of the charged offense.

3. In offering such evidence, the state will argue that it

has complied with all statutory and rule prerequisites to the

evidence's admissibility. Among other things, it will allege

that each defendant took an "approved" infrared breath test on

an Intoxilyzer 8000.

4. Section 316.1932(1)(a)2. presently provides, in

pertinent part, as follows:

The Alcohol Testing Program within the

Department of Law Enforcement is responsible

for the regulation of the operation,

inspection, and registration of breath test

instruments utilized under the driving and

boating under the influence provisions and

related provisions located in this chapter

and chapters 322 and 327. . . . The program

shall:

* * *

g. Have the authority to approve or

disapprove breath test instruments and

accompanying paraphernalia for use pursuant

to the driving and boating under the

influence provisions and related provisions

located in this chapter and chapters 322 and

327.

* * *

l. Promulgate rules for the administration

and implementation of this section,

including definitions of terms.

5. Florida Administrative Code Rule 11D-8.003 is an

existing rule of FDLE that was adopted pursuant to the

rulemaking authority granted by section 316.1932(1)(a)2. It is

entitled, "Approval of Breath Test Methods and Instruments," and

provides as follows:

(1) The Department has approved the

following method(s) for evidentiary breath

testing: Infrared Light Test, also known as

Infrared Light Absorption Test.

(2) The Department approves breath test

methods and new instrumentation to ensure

the accuracy and reliability of breath test

results. The Department has approved the

following breath test instrumentation for

evidentiary use: CMI, Inc. Intoxilyzer 5000

Series - including any or all instruments

using one of the following programs: 5000

Basic Software Program; Florida Software

Program; R-Software Program; and CMI, Inc.

Intoxilyzer 8000 using software evaluated by

the Department in accordance with Instrument

Evaluation Procedures FDLE/ATP Form 34 -

Rev. March 2004.

(3) The Department has approved the

following options for use with Intoxilyzer

5000 Series instruments: keyboard;

simulator recirculation; sample capture;

pressure switch setting at no less than two

inches and no more than six inches of water.

(4) A Department inspection performed in

accordance with Rule 11D-8.004, F.A.C.,

validates the approval, accuracy and

reliability of an evidentiary breath test

instrument.

(5) The Department shall conduct

evaluations for approval of new

instrumentation under subsection (2) in

accordance with Instrument Evaluation

Procedures FDLE/ATP Form 34 - Rev. March

2004.

(6) The availability or approval of new

instruments, software, options or

modifications does not negate the approval

status of previously approved instruments,

software, options or modifications.

6. Since 2001, rule 11D-8.003 has been amended twice--in

2002 and, most recently, in 2004.

7. Before its amendment in 2002, the rule provided as

follows:

(1) The Department has approved the

following method(s) for evidentiary breath

testing: Infrared Light Test, also known as

Infrared Light Absorption Test.

(2) The Department has approved the

following breath test instrument(s) for

evidentiary use: CMI, Inc. Intoxilyzer 5000

Series – including any or all instruments

using one of the following programs: 5000

Basic Software Program; Florida

Software Program; R-Software Program.

(3) The Department has approved the

following options for use with Intoxilyzer

5000 Series instruments: keyboard;

simulator recirculation; sample capture;

pressure switch setting at no less than two

inches and no more than six inches of water.

(4) The determination to evaluate an

evidentiary breath test instrument for use

in the State of Florida will be made by the

Department. Upon notification by the

Department that an evidentiary breath test

instrument will be evaluated, the

instrument's manufacturer shall submit the

following to the Department:

(a) The method of analysis upon which the

instrument is based;

(b) The instrument's model designation;

(c) At least two (2) instruments for

evaluation and a certificate of calibration

for each instrument;

(d) A description of the instrument;

(e) The operator's/technician's manual;

(f) A schematic design of the instrument;

(g) The instrument's maintenance manual, if

published;

(h) Any accessories and materials necessary

to use the instrument for breath testing;

(i) The maximum and minimum temperatures at

which the instrument provides accurate

results;

(j) The name and description of the

software used.

(5) A manufacturer whose instrument has

been previously approved by the Department

shall notify the Department in writing prior

to making any modification or adding a new

option to such instrument. The Department

shall evaluate such modifications or options

to an approved breath test instrument and

determine whether they affect the

instrument's method of analysis or

analytical reliability.

(6) The Department shall conduct

evaluations for approval under sections (4)

and (5) in accordance with Instrument

Evaluation Procedures FDLE/ATP Form 34 –

Rev. March 2001.

8. The Instrument Evaluation Procedures FDLE/ATP Form 34 –

Rev. March 2001 (Form 34) referred to in subsection (6) of the

pre-2002 version of rule 11D-8.003 read as follows:

The following procedures will be used to

evaluate breath test instruments for

approval for use in Florida, and to evaluate

any changes, modifications or new options to

a previously approved breath test

instrument.

1. Only breath test instruments listed on

the US Department of Transportation

Conforming Products List of Evidential

Breath Measurement Devices will be

evaluated.

2. All materials, equipment and supplies

necessary to evaluate an instrument must be

received and recorded prior to beginning the

evaluation process. New instrument

evaluation requirements are outlined in Rule

11D-8.003(4), FAC, and requirements for

evaluations of changes, modifications, or

new options will be determined by the

Department based on the nature of the

change, modification or new option.

3. Results of all evaluations shall record:

a. The purpose for and subject of the

evaluation.

b. The personnel involved and their

specific role.

c. The make, model and serial number of the

instrument.

d. The software which controls the

instrument and the options and settings

available.

e. The make, model and serial numbers, and

the operating conditions of any external

equipment and instrumentation (such as

simulators) used in the evaluation process.

f. The testing location and operating

conditions (such as room temperature).

g. All options, changes and modifications

involved in the evaluation.

h. A conclusion to approve, disapprove, or

withhold approval as inconclusive pending

additional information, and the reasons for

such conclusion.

4. Each instrument evaluated must be

properly calibrated by the manufacturer

prior to evaluation, and a certificate of

calibration must be submitted by the

manufacturer.

5. Each instrument evaluated must be

operated in accordance with the

manufacturer's operator/technician manual.

6. Each instrument will be evaluated at

each of the following alcohol

concentrations: 0.020g/210L, 0.050g/210L,

0.080g/210L, 0.150g/210L, 0.300g/210L, and

0.400g/210L. Each instrument will also be

evaluated for its capability to detect

acetone interference and mouth alcohol as

prescribed by the manufacturer, and for its

capability to properly analyze an alcohol

free sample (0.00g/210L).

7. Each instrument evaluated will be

subjected to at least fifty (50) repetitions

of an alcohol free test, an acetone

interference test, and a mouth alcohol test.

a. The alcohol free test will be conducted

by analyzing a 500 mL of deionized or

distilled water. The water will be analyzed

by gas chromatography prior to the test to

verify that it contains no alcohol. All

results must be 0.000g/210L;

b. The acetone interference test will be

conducted by analyzing an alcohol free

simulator (deionized or distilled water)

containing 3 mL of acetone stock solution.

The acetone stock solution will be prepared

using distilled or deionized water and

adding 77 mL of reagent grade acetone per

liter of water, and will be analyzed by gas

chromatography prior to the evaluation to

verify that it contains only acetone. The

results must be 0.000g/210L and the acetone

detected by the correct instrument

response(s) prescribed by the manufacturer

to denote the interferent.

c. The mouth alcohol test will be conducted

by first analyzing an alcohol free subject's

breath sample, and another breath sample

after the subject has rinsed their mouth

with an alcohol solution. The first breath

sample result must be 0.000g/210L, and the

mouth alcohol breath sample must be detected

by the correct instrument response(s)

prescribed by the manufacturer to denote

mouth alcohol.

8. Each instrument evaluated will be

subjected to at least fifty (50) repetitions

analyzing the following concentrations of

either an alcohol reference solution or an

alcohol stock solution: 0.020g/210L,

0.050g/210L, 0.080g/210L,, 0.150g/210L,

0.200g/210L, 0.300g/210L, and 0.400g/210L.

In order to establish the accuracy of an

evaluated instrument, the results of each

analysis must fall within the following

ranges: 0.020g/210L range is 0.015 to

0.025g/210L; 0.050g/210L range is 0.045 to

0.055g/210L; 0.080g/210L range is 0.075 to

0.085g/210L; 0.150g/210L range is 0.145 to

0.155g/210L; 0.200 range is 0.190 to

0.210g/210L; 0.300g/210L range is 0.285 to

0.315g/210L; and the 0.400g/210L range is

0.380 to 0.420g/210L. In order to establish

the precision of an evaluated instrument,

the average standard deviation for the above

results will be calculated and must not

exceed the manufacturer's specifications for

precision.

9. Each lot of alcohol reference solution

or alcohol stock solution will be analyzed

by gas chromatography in accordance with the

procedures in Rule 11D-8.0035(2)(a), FAC,

before being used in the evaluation process.

10. Any option that is available with the

instrument will be evaluated according to

the manufacturer's recommendation for

utilizing that option. If an option can be

evaluated according to the methods stated

above, then those procedures will be

followed. If an option cannot be evaluated

according to the methods stated above, the

manufacturer must provide the information

necessary to evaluate that option, and that

option will be evaluated according to the

manufacturer's recommendation. The

procedure for evaluating the option and the

results of the evaluation will be recorded.

11. The Department will determine whether

to conduct additional tests or studies

necessary to properly evaluate an instrument

or any of its options, or additional

evaluations for quality assurance or

research purposes. The Department will

record the procedures used and the results

obtained.

9. In 2001, U.S. Department of Transportation's National

Highway Traffic Safety Administration (NHTSA) determined that

CMI, Inc.'s Intoxilyzer 8000 met all of the requirements for

placement on its Conforming Products List of Evidential Breath

Measurement Devices (CPL) referenced in the Instrument

Evaluation Procedures FDLE/ATP Form 34 – Rev. March 2001.

10. On October 3, 2002, an amendment to the CPL was

published in the Federal Register (at 67 Fed. Reg. 620191).

4 /

Among the "[e]vidential [b]reath [m]easurement [d]evices" added

to the CPL by this amendment was the Intoxilyzer 8000.

11. A Form 34 evaluation of the Intoxilyzer 8000 was

conducted by FDLE's Alcohol Testing Program on April 30, 2002

(April 2002 Evaluation). 5 / Two Intoxilyzer 8000s--one bearing

Serial Number 80-000208 and the other bearing Serial Number 80-

000209--were assessed. The testing was not successfully

completed. A written report of the evaluation was generated on

or about July 29, 2002. It described the following "exceptions"

that had occurred during the evaluation:

INSTRUMENT 80-000208 :

1. The breath test affidavit failed to

print completely on the first evidential

breath test with external printer attached.

On the second test, the affidavit printed

correctly. Probable cause: software.

3. Three exceptions occurred during the

mouth alcohol tests. On sample #5, the

sample was introduced at the wrong time, on

sample #12, the sample was introduced

improperly, and on sample #35, a cell phone

was used next to the instrument, causing a

radio interference flag.

3. During the 0.20 simulator tests, the

results were noted to be consistently

dropping in value. After the 20th sample, a

0.40 simulator was attached. The results

for this simulator were low and erratic.

All connections were checked. It was then

noted that air was being taken from the

simulator. Blocking the breath tube

resulted in closer to target values. This

is symptomatic of a failed one-way valve.

Testing was terminated at this point.

INSTRUMENT 80-000209

1. One exception occurred during the mouth

alcohol tests. On sample #48, the sample

was introduced improperly.

2. During the 0.02 simulator tests, the

instrument reported interferent at simulator

sample #42. During simulator sample #44,

the instrument reported interferent and an

alcohol reading during the subsequent

airblank. Testing was suspended and the

room checked for sources of interferents.

The instrument was purged for 15 minutes.

The instrument reported interferent when

none was known to be present for two more

0.02 samples and for three 0.05 simulator

samples. Mr. Toby Hall, CMI Inc., was

contacted for guidance. He attributed the

exceptions to software failure. Testing was

terminated.

12. Shortly after the April 2002 Evaluation, FDLE

published in the May 17, 2002, edition of Florida Administrative

Weekly a Notice of Development of Proposed Rules, advising that

it was proposing to make the following changes to rule 11D-8.003

(with the underlined language representing proposed additions to

the rule), as well as changes to other rules in rule chapter

11D-8:

11D-8.003 Approval of Breath Test Methods

and Instruments.

(1) No change.

(2) The Department has approved the

following breath test instrument(s) for

evidentiary use: CMI, Inc. Intoxilyzer 5000

Series – including any or all instruments

using one of the following programs: 5000

Basic Software Program; Florida Software

Program; R-Software Program; and CMI, Inc.

Intoxilyzer 8000 using software approved by

the Department in accordance with Instrument

Evaluation Procedures FDLE/ATP Form 34 –

Rev. March 2002 .

(3) through (4)(e) No change.

(f) A schematic design and a mechanical

drawing of the instrument;

(g) through (j) No change.

(5) through (6) No change.

(7) The availability or approval of new

instruments, software, options or

modifications does not affect the approval

status or reliability of previously approved

instruments, software, options or

modifications.

The notice indicated that, "if requested in writing and not

deemed unnecessary by the agency head, a rule development

workshop [would] be held [at] 10.00 a.m. [on] June 4, 2002."

13. On May 29, 2002, while the rulemaking process was

still ongoing, FDLE's Alcohol Testing Program conducted another

Form 34 evaluation of the Intoxilyzer 8000 (May 2002

Evaluation), using the same two instruments (bearing Serial

Numbers 80-000208 and 80-000209) that had been the subject of

the April 2002 Evaluation, but they were newly calibrated by the

manufacturer (CMI, Inc.) and had different software. The

testing of the Intoxilyzer 8000 bearing Serial Number 80-000209

was aborted due to an "electrical short circuit" which caused it

to emit smoke. The assessment of the Intoxilyzer 8000 bearing

Serial Number 80-000208, however, "proceeded to completion as

outlined in the Report based on work done on that date," 6 / as the

parties stipulated in Admitted Fact 13 set forth in their Pre-

Hearing Stipulation. That "Report" indicated, among other

things, that the testing yielded the following "Analytical

Results" and "Conclusion":

Analytical Results

All results met the requirements of FDLE/ATP

Form 34 Instrument Evaluation Procedures for

accuracy, and all instrumentation performed

within the manufacturer's specification for

precision of 0.003. All results for the

acetone interferent test were 0.000g/210L

and acetone was detected by the correct

instrument response prescribed by the

manufacturer to denote the interferent.

Mouth alcohol was correctly determined by

the instrumentation.

Conclusion

The results of this evaluation establish

that the CMI, Inc. Intoxilyzer 8000

instrumentation produces accurate and

reliable breath alcohol test results. Based

on the results of this evaluation, the

Florida Department of Law Enforcement

Alcohol Testing Program approves the

infrared light absorption method as it

exists in the CMI, Inc. Intoxilyzer 8000

instrumentation using software version

8100.10. The CMI, Inc. Intoxilyzer 8000

instrumentation is approved for use as

evidentiary breath instrumentation in the

State of Florida.

Pursuant to FDLE's interpretation of the version of rule 11D-

8.003 then in effect (an interpretation with which Petitioners

have, in this proceeding, expressed their disagreement), the

successful completion of Form 34 testing on one of the two

Intoxilyzer 8000s that CMI (as required by subsection (4)(c) of

the rule) had submitted was sufficient to warrant FDLE's

approval of the Intoxilyzer 8000 under the then-existing version

of the rule.

14. By letter dated July 8, 2002, William Harrold, the

Joint Administrative Procedures Committee's (JAPC's)

7 / Chief

Attorney, advised Fern Rosenwasser of FDLE's Office of General

Counsel that he had "completed a preliminary review of [the

proposed amendments to rule chapter 11D-8][ 8 / ] and ha[d] . . .

comments for [her] consideration" regarding proposed rules 11D-

8.003(7) and 11D-8.017 (and no other matters), which comments

were set forth in the letter. Significantly, Mr. Harrold did

not request any further information concerning FDLE's

justification for amending rule 11D-8.003(2) to list the

Intoxilyzer 8000 as an FDLE-approved breath test instrument.

15. On July 18, 2002, Ms. Rosenwasser sent Mr. Harrold the

following letter in response to his July 8, 2002, letter:

I write in reference to the preliminary

review of [FDLE's proposed amendments to

rule chapter 11D-8]. I have included FDLE's

comments in each individual rule section to

facilitate your review.

11D-8.003(7) This rule provision states:

The availability or approval of new

instruments, software options or

modifications does not affect the

approval status or reliability of

previously approved instruments,

software, options or modifications.

[Comment by Mr. Harrold:] Under the "map

tack" provisions of § 120.536, F.S., a

specific law implemented is required for

each rule provision. Provide citation to

the statutory authority that authorizes

this rule provision. The statement in

the rule appears overly broad. If all of

the new instruments, software, options or

modifications were examined since the

breathalyzers were first used there is a

high probability that the approval status

of previously approved instruments,

software, options and modifications have

been affected.

Response

: The approval of another

instrument does not affect the "approval

status" of a previously approved instrument.

If the previously approved instrument['s]

reliability is in question, then there are

tests and procedures to determine such and

to terminate approval status. This section

merely reaffirms that approval of a new

instrument does not invalidate the approval

of a previous instrument. Language revised

to read: (7) The availability or approval

of new instruments, software, options or

modifications does not negate the approval

status of previously approved instruments,

software, options or modifications.

11D-8.017 [Comment by Mr. Harrold:]

This rule provision incorporates various

forms. FDLE/ATP Form 14, Breath Test

Result Affidavit was not submitted with

the rule package and must be supplied.

Response: Form submitted in Notice of

Proposed Rulemaking package.

16. Eight days later, FDLE published in the "Proposed

Rules" section of the July 26, 2002, edition of the Florida

Administrative Weekly its proposed amendments to rule chapter

11D-8, as revised in the manner described in Ms. Rosenwasser's

July 18, 2002, letter to Mr. Harrold (2002 Proposed Rules). The

"full text of the [2002] [P]roposed [R]ules" was published,

accompanied by, among other things, a statement that, if

requested within 21 days, a hearing on the 2002 Proposed Rules

would be held on August 21, 2002.

17. On October 16, 2002, JAPC issued a Certification

concerning the 2002 Proposed Rules, certifying that:

The adopting agency has responded in writing

to all material and timely written comments

or written inquiries made on behalf of the

Committee regarding the [2002 Proposed

Rules];

That all statutory rulemaking requirements

of Chapter 120, F.S. have been complied

with;

There is no administrative determination

under subsection 120.56(2), F.S. pending on

any rule covered by this certification;

All rules covered by this certification are

filed within the prescribed time limitations

of paragraph 120.54(3)(e), F.S. They are

filed not less than 28 days after the notice

required by subsection 120.54(3)(a), F.S.;

and [a]re filed not more than 90 days after

the notice.[

9 / ]

The Certification noted that the 2002 Proposed Rules "remain[ed]

subject to committee review pursuant to the provisions of

section 120.545."

18. That same day (October 16, 2002), FDLE filed with the

Secretary of State the 2002 Proposed Rules, along with the

following Summary of Proposed Rule[s], Justification of Proposed

Rule[s], Federal Comparison Statement, and Summary of Hearing:

SUMMARY OF PROPOSED RULE[S]

Proposed revisions to Chapter 11D-8, F.A.C.

pertain to the regulation and implementation

of Florida's implied consent and alcohol

testing program. The proposed revisions

govern definitions based on scientific and

common usage; standards for issuance and

regulation of permits; evaluation and

approval of breath and blood alcohol

analysis methods; approval, use, and

inspection of breath test instruments and

records; and training requirements and

qualifications.

JUSTIFICATION OF PROPOSED RULE[S]

The proposed revisions are necessary to

accommodate approval of a new breath test

instrument for use in the State of Florida

that employs new technology with expanded

capabilities, to implement certification of

breath test instructors and approval of

breath test courses by the Criminal Justice

Standards and Training Commission, and to

ensure the qualifications and proficiency of

blood alcohol analysts.

FEDERAL COMPARISON STATEMENT

There are no federal requirements dealing

with this topic.

SUMMARY OF HEARING

The proposed rules were noticed in the

Florida Administrative Weekly on July 26,

2002, for a hearing to be held on August 21,

2002, if requested. FDLE received no

requests for a public hearing and none was

conducted. One written comment was

submitted and is summarized below.

Stuart I. Hyman, P.A., objects to the

proposed revision because information

relating to breath test instrumentation

software and technical components are

confidential and exempt from public records

disclosure. FDLE's response restated the

exemption and provided the applicable

statutory authority.

19. The Justification of Proposed Rule[s] that FDLE filed

with the Secretary of State had previously been submitted to

JAPC for its review and consideration.

20. The 2002 Proposed Rules became effective November 5,

2002. 10 /

21. On November 12, 2002, the Department of State received

the following letter from Ms. Rosenwasser:

Please accept this request from [FDLE} for a

technical change to Rule 11D-8.003(6). The

change is necessary since FDLE/ATP Form 34

does in fact reflect a March 2002 revision

date, and is referenced as such throughout

the rules. Effective November 5, 2002, the

2001 version was replaced by the 2002

version.

22. Information concerning the April and May 2002

Evaluations was not requested by, nor shared with, JAPC during

the rulemaking process in 2002.

23. FDLE engaged in rulemaking in 2004 to again make

changes to rule 11D-8.003, including subsection (2) of the rule.

These changes became effective December 9, 2004. The rule has

not been amended since. Accordingly, the existing version of

rule 11D-8.003 is the version that emerged from the rulemaking

process in 2004.

CONCLUSIONS OF LAW

24. The instant challenge is being made pursuant to

section 120.56(1) and (3), Florida Statutes, which allows

substantially affected persons to administratively challenge the

facial validity of an existing rule (but not a rule no longer in

existence) and, if successful, to obtain from a DOAH

administrative law judge a declaration of the rule's invalidity

(which declaration has prospective effect only 11 / ). See Off. of

Ins. Reg. v. Serv. Ins. Co. , 50 So. 3d 637, 638 (Fla. 1st DCA

the parameters of an ALJ's jurisdiction to entertain a rule

challenge. It provides that '[a] substantially affected person

may seek an administrative determination of the invalidity of an

existing rule at any time during the existence of the

rule.' . . . This statute does not authorize a rule challenge

to a rule that is no longer in existence."); Abbott Labs. v.

Mylan Pharms., Inc. , 15 So. 3d 642, 653 (Fla. 1st DCA

2009)("[S]ection 120.56(3) delays the date on which a rule shall

become void until after appellate proceedings have ended.");

Dep't of Rev. v. Sheraton Bal Harbour Ass'n , 864 So. 2d 454

(Fla. 1st DCA 2003)("The Department contends that section

120.56, Florida Statutes, does not authorize a rule challenge to

a rule that is no longer in existence, and therefore, DOAH is

acting in excess of its jurisdiction. We agree and grant the

petition."); Fairfield Cmtys. v. Fla. Land & Water Adj. Comm'n ,

522 So. 2d 1012, 1014 (Fla. 1st DCA 1988)("At the outset, we

note that we are being asked [in this appeal of a final order

issued in a DOAH rule challenge proceeding] to determine the

facial validity of these two rules [being challenged], not to

determine their validity as applied to specific facts, or

whether the agency has placed an erroneous construction on

them."); State Bd. of Optometry v. Fla. Soc'y of Ophthalmology ,

538 So.2d 878, 889 (Fla. 1st DCA 1989)(on motions for rehearing

and motion for clarification)("It is apparent that the statutory

scheme in chapter 120 for invalidating agency rules contemplates

that once a rule . . . has been issued and acted or relied upon

by the agency or members of the public in conducting the

business of the agency, the rule will be treated as

presumptively valid, or merely voidable, and must be given legal

effect until invalidated in a section 120.56 rule challenge

proceeding. . . . The statutory scheme is obviously intended to

avoid the chaotic uncertainty that would necessarily flow from

retroactively invalidating agency action taken in reliance on

the presumed validity of its rule prior to a proper rule

challenge proceeding holding the rule invalid." 12 / ); MDG Capital

Corp. v. Fla. Hous. Fin. Corp. , Case No. 09-5115RX, slip op. at

2 (Fla. DOAH Oct. 6, 2009)("[R]ules can be invalidated only on a

prospective basis."); The Fla. Retail Fed'n, Inc. v. Ag. for

Health Care Admin. , Case No. 04-1828RX, 2004 Fla. Div. Adm.

Hear. LEXIS 2018 *26 (Fla. DOAH July 19, 2004), aff'd , 903 So.

2d 939 (Fla. 1st DCA 2005)(table)("[A]n administrative decision

invalidating a rule cannot be applied retroactively.");

Advantage Therapy and Nursing Ctr. v. Ag. for Health Care

Admin. , Case No. 97-1625RX, 1997 Fla. Div. Adm. Hear. LEXIS 5550

*17 (Fla. DOAH July 29, 1997)("[I]n a rule challenge, the issue

to be determined is whether the rule, either proposed or

adopted, is valid on its face."); and 120.56(3)(b)("The rule or

part thereof declared invalid shall become void when the time

for filing an appeal expires.").

25. Section 120.56(1) and (3) provides as follows:

(1) General procedures for challenging the

validity of a rule or a proposed rule.

(a) Any person substantially affected by a

rule or a proposed rule may seek an

administrative determination of the

invalidity of the rule on the ground that

the rule is an invalid exercise of delegated

legislative authority.

(b) The petition seeking an administrative

determination must state with particularity

the provisions alleged to be invalid with

sufficient explanation of the facts or

grounds for the alleged invalidity and facts

sufficient to show that the person

challenging a rule is substantially affected

by it, or that the person challenging a

proposed rule would be substantially

affected by it.

(c) The petition shall be filed by

electronic means with the division which

shall, immediately upon filing, forward by

electronic means copies to the agency whose

rule is challenged, the Department of State,

and the committee. Within 10 days after

receiving the petition, the division

director shall, if the petition complies

with the requirements of paragraph (b),

assign an administrative law judge who shall

conduct a hearing within 30 days thereafter,

unless the petition is withdrawn or a

continuance is granted by agreement of the

parties or for good cause shown. Evidence

of good cause includes, but is not limited

to, written notice of an agency's decision

to modify or withdraw the proposed rule or a

written notice from the chair of the

committee stating that the committee will

consider an objection to the rule at its

next scheduled meeting. The failure of an

agency to follow the applicable rulemaking

procedures or requirements set forth in this

chapter shall be presumed to be material;

however, the agency may rebut this

presumption by showing that the substantial

interests of the petitioner and the fairness

of the proceedings have not been impaired.

(d) Within 30 days after the hearing, the

administrative law judge shall render a

decision and state the reasons therefor in

writing. The division shall forthwith

transmit by electronic means copies of the

administrative law judge's decision to the

agency, the Department of State, and the

committee.

(e) Hearings held under this section shall

be de novo in nature. The standard of proof

shall be the preponderance of the evidence.

Hearings shall be conducted in the same

manner as provided by ss. 120.569 and

120.57, except that the administrative law

judge's order shall be final agency action.

The petitioner and the agency whose rule is

challenged shall be adverse parties. Other

substantially affected persons may join the

proceedings as intervenors on appropriate

terms which shall not unduly delay the

proceedings. Failure to proceed under this

section shall not constitute failure to

exhaust administrative remedies.

(3) Challenging existing rules; special

provisions.

(a) A 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

petitioner has a burden of proving by a

preponderance of the evidence that the

existing rule is an invalid exercise of

delegated legislative authority as to the

objections raised.

(b) The administrative law judge may

declare all or part of a rule invalid. The

rule or part thereof declared invalid shall

become void when the time for filing an

appeal expires. The agency whose rule has

been declared invalid in whole or part shall

give notice of the decision in the Florida

Administrative Weekly in the first available

issue after the rule has become void.

26. An existing rule may be challenged pursuant to the

foregoing statutory provisions only on the ground that it is an

"invalid exercise of delegated legislative authority." An

administrative law judge is without authority to declare an

existing rule invalid on any other basis; 13 / nor may the

administrative law judge declare an existing rule retroactively

invalid. To do so would be an impermissible extension of the

administrative law judge's authority beyond the boundaries

established by the Legislature. See Cape Coral v. GAC Utils.,

Inc. , 281 So. 2d 493, 495-496 (Fla. 1973)("All administrative

bodies created by the Legislature are not constitutional bodies,

but, rather, simply mere creatures of statute. This, of course,

includes the Public Service Commission. As such, the

Commission's powers, duties and authority are those and only

those that are conferred expressly or impliedly by statute of

the State.")(citations omitted); Ocampo v. Dep't of Health , 806

So. 2d 633 (Fla. 1st DCA 2002)("An agency can only do what it is

authorized to do by the Legislature."); Fla. Dep't of Ins. v.

Bankers Ins. Co. , 694 So. 2d 70 (Fla. 1st DCA 1997)("In

determining the extent of an agency's authority or jurisdiction,

we start with the proposition that agencies are creatures of

statute. Their legitimate regulatory realm is no more and no

less than what the Legislature prescribes by law."); and Fiat

Motors of North America, Inc. v. Calvin , 356 So. 2d 908, 909

(Fla. 1st DCA 1978)("Administrative agencies are creatures of

statute and have only such powers as statutes confer.").

27. In the instant case, Petitioners contend that Florida

Administrative Code Rule 11D-8.003(2) is an "invalid exercise of

delegated legislative authority," within the meaning of section

120.52(8)(a), Florida Statutes, 14 / which provides as follows:

Invalid exercise of delegated legislative

authority" means action that goes beyond the

powers, functions, and duties delegated by

the Legislature. A proposed or existing

rule is an invalid exercise of delegated

legislative authority if any one of the

following applies:

The agency has materially failed to follow

the applicable rulemaking procedures or

requirements set forth in this chapter.[ 15 / ]

The alleged lack of compliance upon which Petitioners' challenge

to rule 11D-8.003(2) is based occurred in 2002, during the

development and adoption of the immediate predecessor to the

current version of the rule. Petitioners contend that, in the

2002 rule development and adoption process, FDLE violated the

"detailed written statement of the facts and circumstances"

requirement of section 120.54(3)(a)4 and (e)1, which statutory

provisions then provided as follows:

ADOPTION PROCEDURES.--

(a) Notices.--

* * *

4. The adopting agency shall file with the

[Joint Administrative Procedures]

[C]ommittee, at least 21 days prior to the

proposed adoption date, a copy of each rule

it proposes to adopt; a detailed written

statement of the facts and circumstances

justifying the proposed rule ; a copy of any

statement of estimated regulatory costs that

has been prepared pursuant to s. 120.541 ; a

statement of the extent to which the

proposed rule relates to federal standards

or rules on the same subject; and the notice

required by subparagraph 1.

(e) Filing for final adoption; effective

date.--

1. If the adopting agency is required to

publish its rules in the Florida

Administrative Code, it shall file with the

Department of State three certified copies

of the rule it proposes to adopt, a summary

of the rule, a summary of any hearings held

on the rule, and a detailed written

statement of the facts and circumstances

justifying the rule . Agencies not required

to publish their rules in the Florida

Administrative Code shall file one certified

copy of the proposed rule, and the other

material required by this subparagraph, in

the office of the agency head, and such

rules shall be open to the public.

(emphasis added). According to Petitioners, the statement that

FDLE provided to JAPC and then to the Secretary of State lacked

necessary detail because it failed to include any mention of the

April 2002 and May 2002 Evaluations.

28. The undersigned has grave doubt as to whether

Petitioners may challenge rule 11D-8.003(2) based upon an

alleged procedural defect in the rulemaking process that

culminated in the adoption of, not the existing, but a prior,

version of that rule provision. It would seem that the window

for pursuing a challenge based upon this alleged procedural

defect in the 2002 rulemaking process closed when rule 11D-

8.003(2) was amended and readopted effective December 9, 2004,

and that from that time onward, the only possible procedural

errors theoretically capable of forming the basis of a challenge

to rule 11D-8.003(2) on the ground that it is an "invalid

exercise of delegated legislative authority," within the meaning

of section 120.52(8)(a), have been those errors, if any, that

may have been made during the 2004 rulemaking process 16 / (which

produced the existing version of the rule). Cf. Ellis v.

Hunter , 3 So. 3d 373, 381 (Fla. 5th DCA 2009)("We note,

parenthetically, that even if a single subject violation had

occurred, section 903.286 was enacted effective July 1, 2005, by

chapter 05-236, Laws of Florida, and was reenacted by chapter

06-3, as part of the adoption act, which is now submitted to the

Legislature annually. Because Simpkins posted bond for Hunter

on January 22, 2007, any single subject violation in section

903.286 was cured before Simpkins posted bond.")(citations

omitted); Dep't of High. Saf. & Motor Veh. v. Johnson , 980 So.

2d 1118, 1120 (Fla. 5th DCA 2008)("We conclude, as have the

First, Second, and Fourth District Courts, that the single

subject rule violation contained in chapter 98-223 was cured by

the enactment of chapter 03-25. Accordingly, the amended

version of section 322.271(4) became effective on July 1, 2003,

and Johnson had a window period, which closed on that date, to

obtain reinstatement of his license from the

Department.")(citations omitted); Dep't of High. Saf. & Motor

Veh. v. Fountain , 883 So. 2d 300, 301 n.1 (Fla. 1st DCA

2004)("We would note that, by the time Fountain sought

certiorari review, the Legislature had reenacted the 1999

version of the Florida Statutes, effective July 1, 2003, curing

the previous constitutional defect to the 1998 version of the

statutes."); and Parrish v. Moss , 200 Misc. 375, 378 (N.Y. Sup.

Ct. 1951)("[W]hen the board of education at its regular meeting

on May 31, 1951, by the unanimous consent of the eight members

present, voted to add to the calendar the matter of the

regulations submitted by the superintendent of schools and then,

by a vote of seven to zero, readopted these regulations, the

board cured any procedural defects that may have existed in the

resolutions adopted on May 24, 1951.").

29. In any event, even if were possible, in theory, for a

procedural defect in the 2002 rulemaking process to support a

declaration of the invalidity of the existing version of rule

11D-8.003(2), the making of such a declaration would be

unwarranted in the instant case. This is so because the record

evidence fails to establish that, during the 2002 rulemaking

process, FDLE actually violated the "detailed written statement

of the facts and circumstances" requirement of section

120.54(3)(a) and (e), as Petitioners have alleged. An

examination of the justification statement that FDLE provided to

JAPC and later to the Secretary of State reveals that, while

succinct, it was sufficiently detailed, notwithstanding its

failure to make specific mention of the April 2002 and May 2002

Evaluations, to enable JAPC to have performed its review

function and therefore fulfilled the legislatively-intended

functional purpose of section 120.54(3)'s "detailed written

statement of the facts and circumstances" requirement--which is

"[t]o facilitate [JAPC] review." 17 / Adam Smith Enters. v. Dep't

of Envtl. Reg. , 553 So. 2d 1260, 1267 (Fla. 1st DCA 1989); see

also Hamner v. Dep't of Prof'l Reg. , Case No. 81-967RX, 1981

Fla. Div. Adm. Hear. LEXIS 4505 **17-18 (Fla. DOAH Nov. 20,

1981)("[The justification statement is] require[d] to be filed

with the Joint Administrative Procedures Committee and the

Secretary of State, and not noticed to the general public. It

is merely to be used by the committee in its review of the

agency rules."); and Stephen T. Maher, We're No Angels:

Rulemaking and Judicial Review in Florida , 18 Fla. St. U.L. Rev.

767 (1991)(section 120.54(11)(a), which then contained the " detailed written statement of the facts and circumstances"

requirement now found in section 120.54(3), described as "a

section designed to facilitate JAPC review"). Particularly when

read together with the proposed rule amendments to rule chapter

11D-8 that JAPC was reviewing, FDLE's justification statement

clearly conveyed to JAPC, in plain and simple terms, that the

reason FDLE was proposing to amend that portion of rule chapter

11D-8 containing a listing of breath test instruments approved

by FDLE for evidentiary use (rule 11D-8.003(2)) was to add to

this listing a "new breath test instrument [specifically, the

Intoxilyzer 8000] . . . that contain[ed] new technology with

expanded capabilities." If JAPC needed additional details from

FDLE on the matter "[t]o facilitate [its] review" of this

proposed rule amendment, it could have, pursuant to section

120.545(2), "request[ed] from [FDLE] such information." That it

did not do so (as far as the evidentiary record in this case

reveals) is strong, if not compelling, evidence that FDLE's

justification statement served its intended purpose and

therefore was not legally deficient. Who better to determine

whether the statement was detailed enough "[t]o facilitate

[JAPC] review" than JAPC itself.

30. In support of their argument to the contrary that

FDLE's justification statement was legally deficient,

Petitioners have relied on Manasota-88, Inc. v. Dep't of Envtl.

Reg. , 567 So.2d 895, 898 (Fla. 1st DCA 1990), a case involving

direct appellate court review of the validity of a non-emergency

agency rule, an avenue of redress (hereinafter referred to as

the "Direct Appeal Option") that, since 1992, has been

unavailable to those seeking to challenge adopted non-emergency

agency rules on other than constitutional grounds. 18 / See §

120.68(9)("No petition challenging an agency rule as an invalid

exercise of delegated legislative authority shall be instituted

pursuant to this section, except to review an order entered

pursuant to a proceeding under s. 120.56 or an agency's findings

of immediate danger, necessity, and procedural fairness

prerequisite to the adoption of an emergency rule pursuant to s.

120.54 (4), unless the sole issue presented by the petition is

the constitutionality of a rule and there are no disputed issues

of fact."); see also Baillie v. Dep't of Nat. Res. , 632 So. 2d

1114, 1116 (Fla. 1st DCA 1994)("Enacted by chapter 92-166,

section 10, at 1679, Laws of Florida (1992), section 120.68(15),

Florida Statutes (1993) [currently section 120.68(9)], now

prohibits judicial scrutiny of an administrative rule to

determine whether the rule constitutes an invalid exercise of

delegated legislative authority 'except to review an order

entered pursuant to a proceeding under s. 120.54(4) or s.

120.56, unless the sole issue presented by the petition [for

review] is the constitutionality of a rule and there are no

disputed issues of fact.' Proceedings under sections 120.54(4)

and 120.56 are administrative rule challenges, initiated by

filing petitions seeking determinations of invalidity with the

Division of Administrative Hearings."); and Sellers, supra note

17, at 75 n.31 ("Direct appeals of agency rules were limited in

1992. 1992 Fla. Laws ch. 166, creating FLA. STAT. § 120.68(15)

(now § 120.68(9)). This limitation on direct appeals has the

effect of eliminating direct appeals such as those in Manasota-

88 v. DER , 567 So. 2d 895 (Fla. 1st DCA 1990)(direct appeal from

adoption of secondary ground-water quality standards)."). In

Manasota-88 , the appellate court, applying an "arbitrary and

capricious standard of review," found that the rule being

challenged therein was "invalid and ineffective" because, in the

court's view, the "Facts and Circumstances" statement the agency

had filed as part of the rulemaking process was insufficient to

meet the "detailed written statement of the facts and

circumstances" requirement of section 120.54--a view that was

driven by the court's belief, which it had earlier expressed in

obiter dicta in Adam Smith Enterprises , 553 So.2d at 1273 19 /

that, as part of the rulemaking process, an agency was required

to develop a record sufficiently robust and revealing to enable

a reviewing appellate court, on direct review, to properly

perform its review function. To suffice, according to the

Manasota-88 court, the rulemaking record had to "include a

statement of the relevant facts considered by the [agency]" and,

in addition, "reveal 'if and how the [agency] considered each

factor throughout the process of policy formation,' detailing

for the reviewing court 'the actual attention [the agency] gave

to the factors, and explain[ing] [its] final disposition with

respect to each of them.'" Manasota-88 , 567 So. 2d at 898. To

the extent that Manasota-88 stands for the proposition that the

"detailed written statement of the facts and circumstances"

required by section 120.54 must contain sufficient information

to facilitate, not only JAPC review, but also direct appellate

court review, it has not been good law since the Legislature's

elimination of the Direct Appeal Option in 1992. Accordingly,

Petitioners' reliance on Manasota-88 is misplaced.

31. Because Petitioners have failed to prove by a

preponderance of the evidence the allegation made in their

Petition that rule 11D-8.003(2), "to the extent it includes a

provision approving the Intoxilyzer 8000 for use as an

evidentiary breath test instrument in the State of Florida," is

an "invalid exercise of delegated legislative authority," within

the meaning of section 120.52(8)(a), based on FDLE's failure to

have complied with the "detailed written statement of the facts

and circumstances" requirement of section 120.54(3)(a) and (e)

during the 2002 rulemaking process, their rule challenge cannot

be sustained.

ORDER

Based on the foregoing, it is

ORDERED that:

The Petition filed by Petitioners pursuant to section

120.56(3) seeking an administrative determination that Florida

Administrative Code Rule 11D-8.003(2) is an "invalid exercise of

delegated legislative authority," as defined in section

120.52(8)(a), is hereby DISMISSED.

DONE AND ORDERED this 5th day of February, 2013, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

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 February, 2013.

ENDNOTES

1/ Unless otherwise noted, all references in this Final Order to

Florida Statutes are to that version of Florida Statutes in

effect at the time of the occurrence of the particular event or

action being discussed.

2/ "An 'approved' test under this provision is one that is

adopted [by FDLE] through rule promulgation in accordance with

the APA." State v. Bodden , 877 So. 2d 680, 684 (Fla. 2004).

3/ See § 316.1934(2) and (3), Florida Statutes, which presently

provides, in pertinent part, as follows:

(2) At the trial of any . . . criminal

action or proceeding arising out of acts

alleged to have been committed by any person

while driving, or in actual physical control

of, a vehicle while under the influence of

alcoholic beverages or controlled

substances, when affected to the extent that

the person's normal faculties were impaired

or to the extent that he or she was deprived

of full possession of his or her normal

faculties, the results of any test

administered in accordance with s. 316.1932

or s. 316.1933 and this section are

admissible into evidence when otherwise

admissible, and the amount of alcohol in the

person's blood or breath at the time

alleged, as shown by chemical analysis of

the person's blood, or by chemical or

physical test of the person's breath, gives

rise to the following presumptions:

* * *

(c) If there was at that time a blood-

alcohol level or breath-alcohol level of

0.08 or higher, that fact is prima facie

evidence that the person was under the

influence of alcoholic beverages to the

extent that his or her normal faculties were

impaired. Moreover, such person who has a

blood-alcohol level or breath-alcohol level

of 0.08 or higher is guilty of driving, or

being in actual physical control of, a motor

vehicle, with an unlawful blood-alcohol

level or breath-alcohol level.

The presumptions provided in this subsection

do not limit the introduction of any other

competent evidence bearing upon the question

of whether the person was under the

influence of alcoholic beverages to the

extent that his or her normal faculties were

impaired.

(3) A chemical analysis of a person's blood

to determine alcoholic content or a chemical

or physical test of a person's breath, in

order to be considered valid under this

section, must have been performed

substantially in accordance with methods

approved by the Department of Law

Enforcement and by an individual possessing

a valid permit issued by the department for

this purpose. Any insubstantial differences

between approved techniques and actual

testing procedures or any insubstantial

defects concerning the permit issued by the

department, in any individual case do not

render the test or test results invalid.

The Department of Law Enforcement may

approve satisfactory techniques or methods,

ascertain the qualifications and competence

of individuals to conduct such analyses, and

issue permits that are subject to

termination or revocation in accordance with

rules adopted by the department.

4/ Prior to this publication, the CPL had most recently been

published in the Federal Register on July 21, 2000.

5 / Prior to conducting this evaluation, FDLE had been

telephonically advised by a representative of the NHTSA that the

Intoxilyzer 8000 was "on [NHSTA's] list as an approved

instrument," albeit not the list published in the Federal

Register. FDLE had also done informal "field testing" on the

Intoxilyzer 8000 and four other breath instrument models. Of

the five models tested, the Intoxilyzer 8000 was the only one

chosen by FDLE, pursuant to subsection (4) of rule 11D-8.003,

for formal assessment in accordance with Form 34.

6/ The "Report" (which was offered and received into evidence as

Joint Exhibit 6) was prepared on February 10, 2005, almost three

years after the evaluation had been conducted.

7/ JAPC was then a standing committee of the Legislature

created, and vested with powers and duties, by section 11.60,

which has since been repealed. JAPC still exists, but as a

creature, not of statute, but of the Joint Rules of the Florida

Legislature, specifically 4.1 thereof.

8/ The review was conducted pursuant to section 120.545,

subsections (1) through (3) of which then provided as follows:

(1) As a legislative check on legislatively

created authority, the committee shall

examine each proposed rule, except for those

proposed rules exempted by s. 120.81(1)(e)

and (2), and its accompanying material, and

each emergency rule, and may examine any

existing rule, for the purpose of

determining whether:

(a) The rule is an invalid exercise of

delegated legislative authority.

(b) The statutory authority for the rule

has been repealed.

(c) The rule reiterates or paraphrases

statutory material.

(d) The rule is in proper form.

(e) The notice given prior to its adoption

was sufficient to give adequate notice of

the purpose and effect of the rule.

(f) The rule is consistent with expressed

legislative intent pertaining to the

specific provisions of law which the rule

implements.

(g) The rule is necessary to accomplish the

apparent or expressed objectives of the

specific provision of law which the rule

implements.

(h) The rule is a reasonable implementation

of the law as it affects the convenience of

the general public or persons particularly

affected by the rule.

(i) The rule could be made less complex or

more easily comprehensible to the general

public.

(j) The rule does not impose regulatory

costs on the regulated person, county, or

city which could be reduced by the adoption

of less costly alternatives that

substantially accomplish the statutory

objectives.

(k) The rule will require additional

appropriations.

(l) If the rule is an emergency rule, there

exists an emergency justifying the

promulgation of such rule, the agency has

exceeded the scope of its statutory

authority, and the rule was promulgated in

compliance with the requirements and

limitations of s. 120.54(4).

(2) The committee may request from an

agency such information as is reasonably

necessary for examination of a rule as

required by subsection (1). The committee

shall consult with legislative standing

committees with jurisdiction over the

subject areas. If the committee objects to

an emergency rule or a proposed or existing

rule, it shall, within 5 days of the

objection, certify that fact to the agency

whose rule has been examined and include

with the certification a statement detailing

its objections with particularity. The

committee shall notify the Speaker of the

House of Representatives and the President

of the Senate of any objection to an agency

rule concurrent with certification of that

fact to the agency. Such notice shall

include a copy of the rule and the statement

detailing the committee's objections to the

rule.

(3) Within 30 days of receipt of the

objection, if the agency is headed by an

individual, or within 45 days of receipt of

the objection, if the agency is headed by a

collegial body, the agency shall:

(a) If the rule is a proposed rule:

1. Modify the rule to meet the committee's

objection;

2. Withdraw the rule in its entirety; or

3. Refuse to modify or withdraw the rule.

(b) If the rule is an existing rule:

1. Notify the committee that it has elected

to amend the rule to meet the committee's

objection and initiate the amendment

procedure;

2. Notify the committee that it has elected

to repeal the rule and initiate the repeal

procedure; or

3. Notify the committee that it refuses to

amend or repeal the rule.

(c) If the rule is either an existing or a

proposed rule and the objection is to the

statement of estimated regulatory costs:

1. Prepare a corrected statement of

estimated regulatory costs, give notice of

the availability of the corrected statement

in the first available issue of the Florida

Administrative Weekly, and file a copy of

the corrected statement with the committee;

or

2. Notify the committee that it refuses to

prepare a corrected statement of estimated

regulatory costs.

9/ See § 120.54(3)(e)4, which then provided as follows:

At the time a rule is filed, the [Joint

Administrative Procedures] [C]ommittee shall

certify whether the agency has responded in

writing to all material and timely written

comments or written inquiries made on behalf

of the committee. The department shall

reject any rule not filed within the

prescribed time limits; that does not

satisfy all statutory rulemaking

requirements; upon which an agency has not

responded in writing to all material and

timely written inquiries or written

comments; upon which an administrative

determination is pending; or which does not

include a statement of estimated regulatory

costs, if required.

10/ See § 120.54(3)(e)6, which then provided, in pertinent part,

that "[t]he proposed rule shall be adopted on being filed [by

the adopting agency] with the Department of State and become

effective 20 days after being filed."

11/ Whether the granting of such prospective relief in the

instant case would render inadmissible in pending criminal

cases, such as Petitioners', the results of pre-declaration

breath tests using the Intoxilyzer 8000 is an issue that the

undersigned need not, and therefore will not, resolve.

12/ In making this pronouncement (which has since been cited

with approval in the 2007 case of Vale v. McDonough , 958 So. 2d

966, 967 (Fla. 1st DCA 2007), and the above-referenced 2009

Abbott Labs. case), the court relied on the following language

in the 1987 version of section 120.56(3) (which is substantially

similar to the language found in the current version of the

statute):

The hearing officer may declare all or part

of a rule invalid. The rules or part

thereof declared invalid shall become void

when the time for filing an appeal expires

or at a later date specified in the

decision.

Id. To the extent that, as Petitioners argue in their Proposed

Final Order, the case of Lanoue v. Dep't of Law Enf. , 751 So. 2d

94, 98 (Fla. 1st DCA 1999) supports the contrary proposition

that "retrospective relief" is available in a section 120.56(3)

rule challenge proceeding, it is at odds with the plain meaning

of the language in the second sentence of subsection (3)(b) of

the current version of section 120.56 providing that "the rule

or part thereof declared invalid [by the administrative law

judge] shall become void when the time for filing an appeal

expires."

13/ For example, an administrative law judge may not invalidate

an existing rule simply because, in the judge's opinion, it does

not represent the wisest or best policy choice. See Bd. of Trs.

of the Int. Impust Fund v. Levy , 656 So. 2d 1359, 1364 (Fla.

1st DCA 1995)("The issue before the hearing officer in this

[rule challenge] case was not whether the Trustees made the best

choice in limiting the lengths of docks within the preserve, or

whether their choice is one that the appellee finds desirable

for his particular location.").

14/ As Petitioners correctly point out in paragraph 61 of their

Proposed Final Order, among the other bases upon which an

administrative law judge may find an existing rule to be an

"invalid exercise of delegated legislative authority," as that

term is defined in section 120.52(8), is that the rule is

"arbitrary or capricious." § 120.52(8)(e). In ruling on the

merits of such a challenge, the administrative law judge must

consider "all of the available evidence, regardless of whether

the evidence was presented to the [agency] during its rulemaking

proceedings or was presented for the first time during the

section 120.56 hearing." Dep't of Health v. Merritt , 919 So. 2d

561, 564 (Fla. 1st DCA 2006). Stated differently, in such a

rule challenge proceeding, neither the challenger nor the agency

is "constrained by the evidence that it can demonstrate was

actually before [the agency] during rulemaking (or included in

the rulemaking record), [rather they both are] free to offer new

evidence . . . before the [administrative law judge], even if

not initially considered" by the agency. Id. at n.1 (citing

with approval Lawrence E. Sellers, Jr., The 2003 Amendments to

the Florida APA , 77 Fla. B. J. 74 (Oct. 2003)). It follows

that, in defending against such a challenge, the agency is not

bound by or limited to the "facts and circumstances" contained

in the "detailed written statement of the facts and

circumstances" it submitted to JAPC and the Secretary of State

pursuant to section 120.54(3)(a) and (e).

15/ Petitioners have also argued in this proceeding (in

paragraph 68 of their Proposed Final Order) that FDLE "deviated

from [its] own rules [that were in effect prior to the adoption

of the 2002 version of rule 11D-8.003(2)] in approving the

Intoxilyzer 8000 based on an evaluation where one instrument

completed the Form 34 protocol and one did not." Even assuming,

without deciding, that Petitioners are correct that such a

deviation occurred, the failure to follow the "agency's own

rules" or policies in the rulemaking process is not a basis upon

which a rule may be declared an "invalid exercise of delegated

legislative authority" in a section 120.56(3) proceeding. The

only "rulemaking procedures or requirements," deviation from

which warrants a finding of invalidity in such a proceeding, are

those set forth in chapter 120.

16/ Petitioners have neither alleged, nor proven, that any such

error was committed.

17/ Absent any language in section 120.54(3) specifying the

amount of detail that must be included in an agency's

justification statement, it is appropriate for the undersigned

to use this "legislatively-intended functional purpose" test to

evaluate the sufficiency of FDLE's statement. Cf. Bailey v. Van

Pelt , 82 So. 789, 792 (Fla. 1919)("[T]he statute should be

interpreted and applied so as to effectuate its purpose.");

State v. Hoyt , 609 So. 2d 744, 748 (Fla. 1st DCA 1992)("[A]

statute should be construed to effectuate the purpose for which

it was enacted."); Johnson v. Johnson , 385 F.3d 503, 516 (5th

Cir. 2004)("Section 1997e(a) does not say how specific a

prisoner's administrative grievances must be, and this court has

so far given relatively little guidance regarding what a

prisoner must say in his grievances to exhaust his claims

properly. . . . In deciding how much detail is required in a

given case, we believe that a court must interpret the

exhaustion requirement in light of its purposes . . . .");

Alward v. Comm'r of Soc. Sec. , Case No. 08-3373 (WJM), 2009 U.S.

Dist. LEXIS 114107 *12 (D.N.J. Dec. 7, 2009) ("These findings,

while not overwhelming in their amount of detail, are sufficient

for the purposes of judicial review . . . ."); State v.

Marshall , 130 N.J. 109, 132 (N.J. 1992)("How detailed a

compilation of homicide cases is required to facilitate an

adequate proportionality review of a given death sentence

depends on the purposes to be served by that review."); and

United Refrigerator Co. v. Applebaum , 410 Pa. 210, 213 (Pa.

1963)("[T]he lower court has broad discretion in determining the

amount of detail that must be averred since the standard of

pleading set forth in Rule 1019(a) is incapable of precise

measurement.").

18/ Section 120.54(4)(a)3 (formerly section 120.54(8)(a)3)

"explicitly makes agency determinations of 'immediate danger,

necessity, and procedural fairness' in the adoption of emergency

rules judicially reviewable without an intervening

administrative challenge." Postal Colony Co. v. Askew , 348 So.

2d 338, 339 (Fla. 1st DCA 1977)(emphasis supplied).

19/ As was pointed out in Baillie , 632 So. 2d at 1117, "[t]he

Adam Smith case came to the [appellate] court for review of a

hearing officer's final order in a rule challenge case, not

directly from the rulemaking agency."

COPIES FURNISHED :

Robert Ralph Berry, Esquire

Eisenmenger, Berry and Peters, P.A.

5450 Village Drive

Rockledge, Florida 32955

Ann Marie Johnson, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

(eServed)

Gerald M. Bailey, Commissioner

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

(eServed)

Mr. Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399

(eServed)

Liz Cloud, Program Administrator

Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399

(eServed)

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

one copy of a Notice of Appeal with the agency clerk of the

Division of Administrative Hearings and a second 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.