16-006127RU Stephen J. Williams, As A Trustee For The Sparkhill Trust vs. Florida Department Of Highway Safety And Motor Vehicles Status: Closed DOAH Final Order on Friday, March 3, 2017.

Summary: Petitioner proved, by a preponderance of the evidence, that two agency statements were unadopted rules that violate section 120.54(1)(a).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN J. WILLIAMS, AS A

TRUSTEE FOR THE SPARKHILL TRUST,

Petitioner,

vs. Case No. 16 - 6127RU

FLORIDA DEPARTMENT OF HIGHWAY

SAFETY AND MOTOR VEHICLES,

Respondent.

_______________________________/

FINAL ORDER

A final hearing in this case was conducted on December 12,

2016, pursuant to sections 120.56(4), 120.569, and 1 20.57(1),

Florida Statutes. 1/ Administrative Law Judge ("ALJ") Cathy M.

Sellers convened the hearing at the Divi sion of Administrative

Hearings ("DOAH") in Tallahassee, Florida. Respondent, Florida

Department of Highway Safety and Motor Vehicles, appeared at

DOAH. Petitioner, Stephen J. Williams, as Trustee for the

Sparkhill Trust, appeared by telephone. 2/

APPEA RANCES

For Petitioner: Stephen J. Williams

1019 Southeast 4th Place

Cape Coral, Florida 33990 - 1521

For Respondent: Yale H. Olenick, Esquire

Department of Highway Safety

and Motor Veh icles

2900 Apalachee Parkway, Room A - 432

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether two policy statements issued by Respondent, TL - 10

and RS/TL 14 - 18, are unadopted rules, as defined in section

120.52(20), Florida Statutes, that violate section 120.54(1)(a) ,

Florida Statutes . 3/

PRELIMINARY STATEMENT

On October 17, 2016, Petitioner filed a Petition for Hearing

challenging a portion of the Florida Department of Highway Safety

and Motor Vehicles' Procedure Manu al TL - 10, dated April 30, 2014

("TL - 10") , 4/ and Technical Advisory RS/TL 14 - 18 ("RS/TL 14 - 18") ,

dated October 20, 2014, as unadopted and invalid rules. 5/ On

October 27, 2016, the undersigned issued an Order Memorializing

Agreed Schedule for Filing Motions and Responses, which, among

other things, limited the issue in this proceeding to whether the

Challenged Statements were unadopted rules. On November 18,

2016, Petitioner filed an amended Petition for Hearing ("Amended

Petition"), which was accepted as t he operative rule challenge

petition in this proceeding.

The final hearing initially was scheduled for November 14,

2016, but was rescheduled to December 12, 2016. During the

pendency of the proceeding, Petitioner filed multiple requests

for summary fina l order and moved for a default judgment; all

were denied. 6/ Respondent filed multiple requests to dismiss the

proceeding; all were denied.

The final hearing was held on December 12, 2016. Petitioner

testified on his own behalf. Petitioner's Exhibits 1 through 3,

5 through 11, and 14 through 18 were admitted into evidence

without objection, and Petitioner's Exhibits 4, 12, and 13 were

admitted into evidence over objection. Respondent did not

present any witnesses or offer any exhibits for admission int o

evidence.

The one - volume Transcript was filed on December 27, 2016.

The deadline for filing proposed final orders was extended to

January 13, 2017. On January 13, 2017, Respondent timely filed

its Proposed Final Order, which was duly considered in pr eparing

this Final Order. Petitioner did not file a p roposed f inal

o rder. 7/

FINDING S OF FACT

I. The Parties

1. Petitioner is a co - trustee of the Sparkhill Trust (the

"Trust"), which was created in July 2009.

2. Opinicus Sentinel, LLC ("Opinicus Sentin el") currently

is a co - trustee of the Trust, and has been a trustee of the Trust

since its creation. Barbara Williams is the manager of Opinicus

Sentinel, and has served in that capacity since its creation. 8/

3. Petitioner was appointed a s a trustee of t he Trust on

October 11, 2016. 9/

4. The Trust owns a 2001 Porsche 996/911 Turbo motor

vehicle (here in after, "Vehicle"). Solely for purposes of this

proceeding, 10/ the Vehicle Identification Number ("VIN") of the

Vehicle is WP0ZZZ99Z1S682830, as alleged in the Amended Petition.

As of the final hearing, the Vehicle was located in Germany.

During all times relevant to this proceeding, the Vehicle was

located in a foreign country.

5 . Respondent is the state agency responsible for, among

other things, i mplementing and administering chapter 319, Florida

Statutes, governing the issuance of certificates of title for

motor vehicles. See § 319.17, Fla. Stat.

II. Background and Events Giving Rise to This Proceeding

6 . On or about September 30, 2014, Opinic us Sentinel ÏÏ at

that time, the sole trustee of the Trust ÏÏ submitted an

application consisting of completed Form 82040 11/ and supporting

documentation to the Lee County Tax Collector ("Tax Collector") 12/

on behalf of the Trust, requesting issuance of a cert ificate of

title for the Vehicle in the name of the Trust. The application

included a letter from a motor vehicle dealer in London, Ontario,

Canada, stating that the dealer had inspected the Vehicle and

that the Vehicle's VIN is WP0ZZZ99Z1S682830.

7 . On or about October 22, 2014, the Tax Collector sent a

letter to Ms. Williams, as manager of Opinicus Sentinel, stating

that the application for certificate of title could not be

processed "because all used vehicles coming into Florida from a

foreign country must have the Vehicle Identification Number

verified by a Division of Motorist Services Compliance Examiner."

8 . When asked for further explanation, the Tax Collector

responded by electronic mail ("email"):

The Lee County Tax Collector is a

Constituti onal Office that provides the

services of the Department of Highway Safety

and Motor Vehicles (DHSMV). As such, we are

bound by both statutory and department

procedural guidance. Procedures often are

entitled Technical Advisories. The technical

advisory relied upon by this office indicates

that all used vehicles coming into Florida

from a foreign country must have the VIN

verified by a Division of Motorist Services

Compliance Examiner as referenced in TL - 10 in

effect on the date the correspondence was

dr afted.

Email from Tax Collector to Barbara Williams , dated October 27,

2014 (emphasis added).

This email directed Ms. Williams to contact Respondent if the

trustee wished to challenge the denial of the application for

certificate of title for the Vehi cle.

9. On November 3, 2014, Ms. Williams contacted Respondent,

asserting that the Tax Collector's denial of the application for a

certificate of title violated section 319.23(3)(a)2, Florida

Statutes.

10 . Also on that date, Ms. Williams filed a P etitio n for

A dministrative H earing with Respondent on behalf of Opinicus

Sentinel, challenging TL - 10 as an invalid and unadopted rule

pursuant to section 120.56(4). 13/

11. On November 24, 2014, Respondent sent a letter to

Ms. Williams, refusing to issue the requested certificate of

title. The letter stated:

A fter researching the issue identified in your

letter, the Department stands by the decision

made by . . . [the Lee County Tax Collector] .

Section 319.23(a)(2), Florida Statutes, states

that, '[a]n ap propriate departmental form

evidencing that a physical examination has

been made of the motor vehicle by the owner

and by a duly constituted law enforcement

officer in any state, a licensed motor vehicle

dealer, a license inspector as provided by

s. 320.5 8, or a notary public commissioned by

this state and that the vehicle identification

number shown on such form is identical to the

vehicle identification number shown on the

motor vehicle.

Letter from Respondent to Barbara Williams , dated November 24,

201 4 (emphasis added).

12. The letter further stated:

However, section 319.23(11), Florida Statutes,

states that, '[t]he Department shall use

security procedures, processes, and materials

in the preparation and issuance of each

certificate of title to pro hibit to the extent

possible a person's ability to alter,

counterfeit, duplicate, or modify the

certificate of title.'

In the case at bar, the Department is choosing

to implement the language found in 319.23(11)

to ensure that the certificate of title is

issued correctly. The Department has the

authority to require VIN verifications on

vehicles entering the state of Florida from a

foreign country before a title can be issued.

13. In subsequent correspondence to Ms. Williams, dated

December 18, 2014, Re spondent stated:

I can only again point you to s. 319.23(11).

Since April of 2000 the Department's policy is

to require all used vehicles coming into

Florida from a foreign country to have the VIN

verified by a Motor Vehicle Field Office

Compliance Exam iner prior to being titled.

* * *

I have included a copy of the Department's

Technical Advisory, TL 14 - 18, which explains

the Department's policy in depth. [ 14/ ]

14. On December 18, 2014, Respondent referred Opinicus

Sentinel's P etition for A dministrative H earing to DOAH. The case

was assigned DOAH Case No. 14 - 6005. On March 3, 2015, Opinicus

Sentinel withdrew the petition , and the DOAH case file for Case

No. 14 - 6005 was closed .

15. Notwithstanding that Case No. 14 - 6005 was pending at

DOAH, on February 25, 2015 , Respondent sent Ms. Williams a letter

dismissing the previously - filed petition for administrative

hearing with leave to file an amended petition. The letter also

asserted an additional basis 15/ for Respondent's denial of the

certifi cate of title for the Vehicle, specifically:

Because the vehicle to be titled is not

currently in Florida, clearly the vehicle will

not be operated on the roads of Florida.

Accordingly, the vehicle cannot be registered

in Florida and the titling provisio ns of

Chapter 319, Fla. Stat., do not apply.

Therefore, the application for title you

submitted to the Lee County Tax Collector

pursuant to section 319.23, Fla. Stat. will

not be approved.

16. While DOAH Case No. 14 - 6005 was pending, Stephen J.

William s, as beneficiary of the Trust, filed a Petition for

Administrative Hearing challenging both TL - 10 and RS/TL 14 - 18 as

unadopted and invalid rules pursuant to section 120.56(4). That

case was assigned DOAH Case No. 15 - 0484 a nd ultimately was

dismissed by F in al O rder dated March 25, 2015. 16/

17. As previously noted, on October 11, 2016, Petitioner was

appointed a s a co - trustee of the Trust.

18. On October 17, 2016, Petitioner, as a trustee of the

Trust, initiated this proceeding by filing a Petition fo r

Administrative Hearing, again challenging both TL - 10 and

RS/TL 14 - 18 as unadopted and invalid rules. As noted above, the

scope of this proceeding subsequently was narrowed to eliminate

the challenge to the substantive invalidity of TL - 10 and

RS/TL 14 - 18, so that the sole issue in this proceeding is whether

TL - 10 and RS/TL 14 - 18 are unadopted rules that violate

section 120.54(1) (a) .

The Challenged Statements: TL - 10 and RS/TL 14 - 18

19. TL - 10, identified by the Tax Collector as the original

basis for denial of issuance of the certification of title for the

Vehicle, went into effect on April 30, 2014. The portion of TL - 10

pertinent to this proceeding states:

IV. MISCELLANEOUS INFORMATION

* * *

B. Vehicle identification number (VIN)

verifi cations are to be completed by the

applicant.

* * *

2. VIN verification may be done by one of the

following:

* * *

c. Florida Division of Motorist Services

(DMS) Compliance Examiner, DMS or tax

collector employees.

* * *

NOTE: All USED vehicles coming into Florida

from a foreign country, including dealer

transactions, MUST have the VIN verified by a

DMS Compliance Examiner.

20. Technical Advisory RS/TL 14 - 18 is titled

"Motor Vehicles Coming Into Florida from a Fore ign

Country." It states in pertinent part:

All used vehicles coming into Florida from a

foreign country (including dealer

transactions) must have the vehicle

identification number verified by a Motor

Vehicle Field Office Compliance Examiner prior

to being titled.

* * *

The Regional Motor Vehicle Field Office staff

will perform an inspection of the vehicle that

includes verification of the public VIN,

confidential VIN or secondary VIN,

manufacturerÓs label or letterhead letter that

states complia nce with US vehicle standards,

computer checks of NMVTIS/NICB data - bases, and

a review of documentation showing vehicle

clearance through US Customs (if applicable).

Copies of these documents, including a copy of

the completed form HSMV 84044, will be

mai ntained in the regional office.

The VIN verification will be completed by the

compliance examiner on a form HSMV 84044, in

lieu of a form HSMV 82040 or HSMV 82042.

The compliance examiner will give the customer

the original required documentation (in cluding

the original complete form HSMV 84044). The

customer must submit all documentation to a

tax collectorÓs office or license plate agency

in order for him/her to apply for a Florida

Certificate of Title.

21. The undisputed evidence establishes tha t neither TL - 10

nor RS/TL 14 - 18 have been adopted as rules pursuant to the

procedures prescribed in section 120.54.

22. Respondent did not present any evidence showing that

rulemaking was not practicable or feasible.

Respondent's Position

23. Respond ent admitted, in its Amended Responses to

Requests to Admissions served on Petitioner on November 21, 2016,

that TL - 10 and RS/TL 14 - 18 are intended to be, and are, of general

application; that TL - 10 and RS/TL 14 - 18 implement, interpret, or

prescribe law or policy and/or describe the procedure or practice

requirements of Respondent; and that TL - 10 and RS/TL 14 - 18 have

not been, and are not published in the Florida Administrative

1 0

Code. Additionally, Respondent acknowledges that neither TL - 10

nor RS/TL 14 - 18 have been adopted as rules.

24. Respondent takes the position that Petitioner lacks

standing to challenge TL - 10 and RS/TL 14 - 18 as unadopted rules.

25. Specifically, Respondent asserts that Petitioner has not

suffered a "real or immediate injury in f act" for purposes of

having standing because although the Tax Collector and Respondent

referred the Trust to TL - 10 and RS/TL 14 - 18 as grounds for denial

of the certificate of title , they were not the " ultimate grounds "

on which the Trust was denied a certi ficate of title. On this

basis, Respondent asserts that it did not apply TL - 10 or

RS/TL 14 - 18 to Petitioner, so Petitioner did not suffer injury as

a result of application of these statements.

26. Respondent further asserts that because Petitioner

cann ot meet the requirements in section 319.23 to be entitled to

issuance of a certificate of title for the Vehicle, Petitioner's

claimed injury in this proceeding is speculative and hypothetical.

27. To this point, Respondent argues that Petitioner's

allege d injury in this proceeding is speculative because the Trust

has not satisfied the requirements of section 319.23 for purposes

of being entitled to issuance of a certificate of title.

Specifically, Respondent argues that because the Vehicle is not

physica lly present in the state of Florida, it is not being

operated on the roads of Florida, and because it is not being

operated on the roads of Florida, it is not required to be

registered or to obtain a certificate of title ÏÏ and, indeed,

cannot be registered and a certificate of title issued until it is

p hysically present in Florida. Accordingly, Respondent reasons,

until the Vehicle is physically present in Florida and thus

subject to registration and licensure requirements, TL - 10 and

RS/TL 14 - 18 were not, a nd cannot be, applied to determine whether

the certificate of title for the Vehicle should be issued.

28. Also on this point, Respondent argues that Petitioner's

alleged injury is speculative because Petitioner did not meet the

requirement in section 31 9.23 that a physical examination of the

Vehicle be made by the owner and a motor vehicle dealer licensed

in the state of Florida.

29. Respondent further asserts that Petitioner's a lleged

interest does not fall within the zone of interest of this

proceed ing. Specifically, Respondent argues that because the

Vehicle is located in a foreign country, Petitioner is unable to

establish that the Vehicle must be registered and a certificate of

title issued in Florida. Respondent concludes:

Because Petitioner cannot meet the burden of

establishing that the motor vehicle in

question is required to be licensed and

registered in Florida, and because he failed

to satisfy the application requirements of

section 319.23(3)(a)(2), he cannot meet the

burden of establish ing that any interest in

obtaining a certificate of title for the

vehicle in question is within the 'zone of

interests' to be protected and regulated.

CONCLUSIONS OF LAW

3 0. Subject to a determination that Petitioner has

standing, discussed below, DOAH h as jurisdiction over this

proceeding pursuant to sections 120.56(4), 120.569, and

120.57(1).

31. Section 120.56(4)(a) provides in pertinent part:

(a) Any person substantially affected by an

agency statement may seek an administrative

determination that t he statement violates

s. 120.54(1)(a). The petition shall include

the text of the statement or a description of

the statement and shall state with

particularity facts sufficient to show that

the statement constitutes an unadopted rule.

* * *

( d) The administrative law judge may

determine whether all or part of a statement

violates s. 120.54(1)(a). The decision of the

administrative law judge shall constitute a

final order.

(e) If an administrative law judge enters a

final order that all or part of an unadopted

rule violates s. 120.54(1)(a), the agency must

immediately discontinue all reliance upon the

statement or any substantially similar

statement as a basis for agency action.

32. Petitioner bears the burden in this proceeding to prove ,

by a preponderance of the evidence, that the challenged statements

are unadopted rules that violate section 120.54(1)(a). See S.W.

Fla. Water Mg m t. Dist. v. Charlotte Cnty. , 774 So. 2d 903, 908

(Fla. 2d DCA 2001); see also Ag. for Pers. with Disab. v. C .B. ,

130 So. 3d 713, 717 (Fla. 1st DCA 2013).

TL - 10 and RS/TL 14 - 18 Are Unadopted Rules

33. The term "rule" is defined in section 120.52(16) 17/ as:

"Rule" means each agency statement of general

applicability that implements, interprets, or

prescribes la w or policy or describes the

procedure or practice requirements of any

agency and includes any form which imposes any

requirement or solicits any information not

specifically required by statute or an

existing rule. The term also includes

amendment or rep eal of a rule.

34. A statement of general applicability is a statement that

purports to affect not just a single person or singular

situations, but to a category or class of similarly - situated

persons or activities. See McCarthy v. Dep't of Ins. , 479 So. 2d

135 (Fla. 2d DCA 1985). Thus, the statement need not apply

universally to every person or activity within the agency's

jurisdiction; rather, it is sufficient that the statement apply

uniformly to a class of persons or activities over which an agen cy

exercises authority. See Dep't of High. Saf. & Motor Veh. v.

Schluter , 705 So. 2d 81, 83 (Fla. 1st DCA 1997).

35 . Florida case law has expanded on the definition of rule

to include "those statements which are intended by their effect to

create right s, or to require compliance, or otherwise have the

direct and consistent effect of law. " State Dep't of Admin. v.

Harvey , 356 So. 2d 323, 325 (Fla. 1st DCA 1977). See also Jenkins

v. State , 855 So.2d 1219 (Fla. 1st DCA 2003); Amos v. Dep't of

HRS , 444 So . 2d 43, 46 (Fla. 1st DCA 1983).

36. Thus, if the agency statement treats all those with like

cases equally or requires affected persons to conform their

behavior to a common standard, and creates or extinguishes rights,

privileges, or entitlements, then the statement is a rule. See

Fla . Quarter Horse Racing Ass'n v. Dep't of Bus. and Prof 'l Reg. ,

Case No. 11 - 5796 RU ( Fla. DOAH Final Order May 6, 2013), aff'd sub

nom. Fla . Quarter Horse Track Ass'n v. State , 133 So. 3d 1118

(Fla. 1st DCA 2014).

37. As t he Court of Appeal, First District, has explained:

[T] he breadth of the definition in

s ection 120.52(1[6]) indicates that the

legislature intended the term to cover a great

variety of agency statements regardless of how

the agency designates them. Any a gency

statement is a rule if it "purports in and of

itself to create certain rights and adversely

affect others," [ State, Dep't of Admin. v.]

Stevens , 344 So. 2d [290,] 296 [(Fla. 1st DCA

create rights, or to requi re compliance, or

otherwise to have the direct and consistent

effect of law."

McDonald v. Dep't of Banking & Fin. ,

346 So. 2d 569, 581 (Fla. 1st DCA 1977).

Harvey , 356 So. 2d at 325.

38. Applying these statutory and case law standards to this

proc eeding, there is no question that TL - 10 and RS/TL 14 - 18 are

rules. 18/

39. TL - 10 expressly applies to " [a] ll USED vehicles coming

into Florida from a foreign country, including dealer

transactions," and imposes the mandatory requirement that in order

to o btain an original certificate of title, the vehicle "MUST have

the VIN verified by a DMS Compliance Examiner."

40. RS/TL 14 - 18 expressly applies to " all used vehicles

coming into Florida from a foreign country" and requires that the

VIN be verified by an examiner with Respondent's Motor Vehicle

Field Office Compliance as a condition precedent to applying for

and obtaining a certificate of title for the vehicle.

41. Thus, by their plain terms, TL - 10 and RS/TL 14 - 18 apply

uniformly to a class of perso ns or activities over which

Respondent exercises authority ÏÏ here, all used motor vehicles

coming into Florida from a foreign country for which certificates

of title are sought. Further, both of these challenged statements

impose the requirement ÏÏ to which all persons seeking to obtain a

certificate of title for a used vehicle being brought from a

foreign country into the state of Florida must conform ÏÏ that the

VIN on the vehicle be verified by an examiner with Respondent's

Motor Vehicle Field Office. Thus, both TL - 10 and RS/TL 14 - 18

treat all those with like cases equally and require the affected

persons or activities to conform to a common standard.

42. It is also noted that nowhere in chapter 319 , or in any

other statute , are the specific terms, provi sions , and

requirements of either TL - 10 or RS/TL 14 - 18 expressly codified.

Thus, TL - 10 and RS/TL 14 - 18 impose requirements that are not

expressly contained in the statutes' plain language or readily

apparent from the statutes' literal reading. As such, t hese

agency statements interpret those statutes. See State Bd. of

Admin. v. Huberty , 46 So. 3d 1144, 1147 (Fla. 1st DCA 2010);

Beverly Enterprises - Fla ., Inc. v. Dep't of HRS , 573 So. 2d 19, 22

(Fla. 1st DCA 1990); St. Francis Hosp., Inc. v. Dep't of HRS , 553

So. 2d 1351, 1354 (Fla. 1st DCA 1989). See also Fla . Quarter

Horse Racing Ass'n .

43. On these bases, it is determined that both TL - 10 and

RS/TL 14 - 18 are agency statements of general applicability that

implement, interpret, and prescribe law or pol icy, and that they

impose conditions, require compliance, and have the effect of law.

Accordingly, it is concluded that TL - 10 and RS/TL 14 - 18 are rules,

as that term is defined in section 120.52(16). 19/

44. Section 120.54(1)(a) declares that "[r]ulemaki ng is not

a matter of agency discretion" and directs that "[e]ach agency

statement defined as a rule by s. 120.52 shall be adopted by the

rulemaking procedure provided by this section as soon as feasible

and practicable." As noted above, there is no dispu te that

Respondent has not adopted either TL - 10 or RS/TL 14 - 18 as rules

pursuant to section 120.54. Also as noted above, Respondent did

not present any evidence to show that it was not practicable or

feasible to adopt the challenged statements as rules. 20 /

45. On these bases, it is concluded that TL - 10 and

RS/TL 14 - 18 are unadopted rules that violate the mandate in

section 120.54(1)(a) that each agency statement defined as a rule

be adopted by the rulemaking procedure set forth in section 120.54

as soo n as practicable and feasible.

Petitioner's Standing

46. As noted above, in administrative proceedings, standing

is a matter of subject matter jurisdiction. Abbott Labs , 15 So.

3d at 657 n.2.

47. To have standing to challenge an agency statement

de fined as a rule in a proceeding before an administrative law

judge, the challenger must be "substantially affected" by the

statement in question. § 120.56(4)(a), Fla. Stat. ("Any person

substantially affected by an agency statement may seek an

administrat ive determination that the statement violates

s. 120.54(1)(a)."). Jacoby v. Fla. Bd. of Med. , 917 So. 2d 358

(Fla. 1st DCA 2005).

48. To satisfy the "substantially affected" standard in the

unadopted rule context, a petitioner 21/ must show that he or s he

will suffer an immediate "injury in fact" within the "zone of

interest" protected by the statute, or related statutes, that the

unadopted rule implements. See Fla. Med . Ass'n, Inc. v. Dep't of

Prof'l Reg. , 426 So. 2d 1112, 1114 (Fla. 1st DCA 1983).

4 9. It is well - established in Florida law that a person is

"substantially affected" for purposes of having standing to

challenge a rule ÏÏ whether adopted or unadopted ÏÏ if the rule is or

will be applied to that person as a basis for agency action.

Jacoby , 9 17 So. 2d at 360 ; Coalition of Mental Health Prof essions ,

546 So. 2d 27 (Fla. 1st DCA 1989); Prof'l Firefighters of Fla.,

Inc. v. Dep't of HRS , 396 So. 2d 1194 (Fla. 2d DCA 1981); State v.

Harvey , 356 So. 2d 323 (Fla. 1st DCA 1977). See Abbott Labs , 15

So . 3d at 651 n.2. See also Televisual Comm 'n v. Dep't of Labor

and Emp 't Sec. , 667 So. 2d 372 (Fla. 1st DCA 1995)(health care

prov iders had standing to challenge proposed rule that purported

to regulate the industry that provided the medium for the

educati on of those providers); Ward v. Bd. of Tr s. , 651 So. 2d

1236 (Fla. 4th DCA 1995)(professional engineer would be subject to

regulation by proposed rules impos ing new dock construction

standards, that, if complied with, would subject him to

professional lice nsure discipline). 22/

50. In Jacoby , the Board of Medicine denied a physician's

application for a temporary medical practice certificate on the

basis of existing rules and "non - rule" policies that had not been

formally adopted as rules, 23/ and the physic ian challenged the

rules and policies in a proceeding brought under section 120.56.

In his F inal O rder, the ALJ found that Jacoby did not demonstrate

facts sufficient to show that, as a result of denial of his

license, he had standing to challenge the rul es and policies. In

reversing the final order and determining that Jacoby had standing

to challenge the rules and policies, the court rejected the

agency's argument that Jacoby's injury alleged was speculative and

conjectural. The court stated: "[h]ere, Appellant has been

adversely affected by the rule, as his license was denied. . . .

Thus, Appellant is subject to the licensing rules and policies

. . . and he has already suffered an immediate impact because of

those rules and policies." Id. at 360 (em phasis added).

51. In Professional Firefighters , an older case addressing

rule challenge standing, a professional association 24/ and licensed

members challenged proposed rules that, when applied, effectively

would impose new exam requirements on the memb ers . In rejecting

the agency's argument that the injury to the licensed members was

hypothetical and speculative, the court held that where a person

is subject to regulation under rules, he or she suffers an injury

in fact of sufficient immediacy for purp oses of having standing to

challenge those rules. Id. at 1196.

52. Similarly, in Coalition of Mental Health Professions ,

the court again affirmed that being subject to ÏÏ i.e., regulated

by ÏÏ a rule is sufficient to establish an immediate injury in f act

for purposes of having standing to challenge the rule. In that

case, a professional association challenged proposed rules that

would regulate the professional licensed practice of members of

the association. In reversing the final order dismissing th e rule

challenge for lack of standing, the court stated: "[t]he fact

that appellant's members will be regulated by the proposed rules

is alone sufficient to establish that their substantial interests

will be affected and there is no need for further factu al

elaboration of how each member will be personally affected."

Id. at 28 (emphasis added).

53. Here, Respondent asserts that Petitioner has not shown

that it has suffered an injury in fact of sufficient immediacy to

have standing in this proceeding be cause TL - 10 and RS/TL 14 - 18

have not been applied to deny the certificate of title for the

Vehicle. As support for this position, Respondent argues that

TL - 10 and RS/TL 14 - 18 were not the "ultimate grounds" for its

decision to deny the certificate of tit le for the Vehicle, so

Respondent did not apply TL - 10 and RS/TL 14 - 18 to deny the

application for the certificate of title for the Vehicle.

54. This argument is rejected. The evidence clearly

establishes that Respondent did, in fact, apply TL - 10 and

RS/TL 14 - 18 to deny the application for certificate of title.

The undisputed evidence establishes that the Tax Collector,

acting as Respondent's statutorily - designated agent for purposes

of issuing or denying certificate of title applications, cited

TL - 10 as the basis for its refusal to issue the requested

certificate of title. Furthermore, in the November 24, 2014,

correspondence from Respondent to the trustee, Respondent

specifically stated that it " stands by the decision made by

. . . [the Lee Coun ty Tax Collector]." This statement evidences

that Respondent effectively adopted the Tax Collector's rational e

applying TL - 10 as a basis for denying the certificate.

5 5 . As an additional basis for the denial of the certificate

of title, the letter also cited section 319.23(11) as authoriz ing

Respondent to use security procedures, processes, and materials in

the preparation and issuance of each certificate of title to

prohibit to the extent possible a person's ability to alter,

counterfeit, duplicate, or modify the certificate of title . Thus,

per the letter, Respondent was "implementing" section 319.23(11)

by requiring that the Vehicle's VIN be verified as previously

specified ( i.e., by a Motor Vehicle Field Office Compliance

Examiner) before the certific ate of title could be issued. In

subsequent correspondence , Respondent further explained its

reliance on section 319.23(11), stating that since April 2000, its

"policy" was to "require all used vehicles coming into Florida

from a foreign country to have t he VIN verified by a Motor Vehicle

Field Office Compliance Examiner prior to being titled." The

correspondence specifically referred to ÏÏ and even included a copy

of ÏÏ RS/TL 14 - 18, which explained Respondent's policy. Clearly,

then, Respondent did , in fact , apply both TL - 10 and RS/TL 14 - 18 to

deny the application for the certificate of title for the Vehicle.

5 6 . Respondent's attempt to rely on the separate ground in

its February 25, 2015, letter as a basis for asserting that

TL - 10 and RS/TL 14 - 18 were not the "ultimate grounds" for denial

of the certificate of title also is misplaced. As previously

explained, 25/ jurisdiction over the proceeding was vested in DOAH

when Respondent sent the letter on February 25, 2015 . Thus,

Respondent lacked jurisdictio n to take agency action to assert yet

another basis for denying the certificate of title. Further more ,

under any circumstances, Respondent did not ever inform Respondent

that it was ceasing to rely on TL - 10 and RS/TL 14 - 18 as a basis

for denying the certi ficate of title. Instead, with each piece of

additional correspondence, Respondent set forth yet another ground

for its decision to deny the certificate of title. As discussed

above, t o have standing to challenge a rule, it is sufficient for

the challeng er to show that the rule was a basis for agency

action ÏÏ not that it was sole basis for that action. See Coalition

of Mental Health Prof essions , 546 So. 2d at 28; Prof'l

Firefighters , 396 So. 2d at 1196.

5 7 . Respondent's position, couched in various argu ments

(discussed in detail above) that Petitioner lacks standing because

Petitioner did not, and cannot, meet the requirements for issuance

of the certificate of title for the Vehicle , also is rejected.

Standing to challenge a rule is not predicated on sh owing that the

challenger would prevail on the merits of a proceeding brought

under sections 120.569 and 120.57(1) to challenge the denial of a

license on the basis of that rule. See Harvey , 356 So. 2d at 325

( challenger not required to pursue and prevail in all potential

avenues of relief to demonstrate he or she is substantially

affected by rule). As extensively discussed above, in rule

challenge proceedings brought under section 120.56, it is

sufficient, for standing purposes, to show that the challeng er was

subjected to the rule as a basis for the agency's action.

5 8 . Based on the foregoing , it is concluded that Petitioner

has demonstrated an injury in fact of sufficient immediacy to meet

the first requirement of the "substantially affected" standin g

standard applicable to this proceeding.

59 . Respondent also asserts that Petitioner has not shown

that his interest falls within the "zone of interests" protected

by this proceeding, which challenges TL - 10 and RS/TL 14 - 18 as

unadopted rules. Responde nt argues that the zone of interest in

this proceeding is limited exclusively to motor vehicles required

to be registered and licensed in Florida, and since the Vehicle is

not currently physically present in Florida, it is not required to

be registered and licensed in Florida, so that Petitioner's

interest in challenging the agency statements is not protected

under this proceeding.

60 . This argument also is rejected. Petitioner, as trustee

of the Trust that owns the Vehicle, clearly has an interest in

ob taining a certificate of title , which is an interest under

chapter 319 that clearly is protected in this proceeding. Here,

the effect of TL - 10 and RS/TL 14 - 18 is to impose additional

obstacles to obtaining a certificate of title for the Vehicle

beyond the requirements set forth in chapter 319, governing motor

vehicle titling in Florida. Th erefore , Petitioner is asserting an

injury ÏÏ i.e., that the certificate of title for the Vehicle has

been denied ÏÏ that is specifically protected by chapter 319. 26/

6 1 . The circumstances in this case are analogous to those

in NAACP v. Board of Regents , 822 So. 2d 1 (Fla. 2003), which

involved a challenge to proposed rules that effectively imposed

more stringent state university admission requirements on minority

studen ts than those to which they previously were subject. In

reversing the lower court's holding that the challengers lacked

standing, the Florida Supreme Court concluded that the rules had

the effect of imposing additional obstacles to the students'

interest in being admitted to a state university, and that that

interest clearly was protected under the statutes establishing

requirements and standards for admission to a state university.

6 2 . Based on the foregoing , it is determined that

Petitioner's interes t in obtaining a certificate of title for the

V ehicle falls within the zone of interest protected under this

proceeding.

Conclusion

6 3 . For the reasons set forth herein, it is concluded that

Petitioner, as a trustee of the Trust that owns the Vehicle, i s

substantially affected by TL - 10 and RS/TL 14 - 18, and, thus, has

standing to challenge these agency statements as unadopted rules

in this proceeding brought under section 120.56(4).

6 4 . For the reasons set forth herein, it is concluded that

TL - 10 and R S/TL 14 - 18 are unadopted rules that violate

section 120.54(1)(a).

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the portion of the Florida Department of

Highway Safety and Motor Vehicles' Procedure Manual TL - 10, dated

April 30, 2014, specifically addressed herein, and Technical

Advisory RS/TL 14 - 18, dated October 20, 2014, are unadopted rules

that violate section 120.54(1)(a), Florida Statutes. 27/

Jurisdiction is retained to conduct further proceedings as

necessa ry to award attorney's fees and costs, as applicable,

pursuant to section 120.595(4), Florida Statutes. Therefore, it

is further ORDERED that Petitioner shall have 30 days from the

date of this Final Order within which to file a motion for

attorney's fees and costs, to which motion (if filed) Petitioner

shall attach appropriate affidavits (for example, attesting to

the reasonableness of any fees and costs) and other documentation

(such as time sheets, receipts, bills, and the notice addressed

in section 12 0.56(4)(b) as a condition precedent to the award of

attorney's fees and costs) essential to support a claim (if any)

for attorney's fees and costs pursuant to section 120.595(4) .

DONE AND ORDERED this 3rd day of March , 2017 , in

Tallahassee, Leon County, Fl orida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl .us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of March , 2017 .

ENDNOTE S

1/ All references are to the 2016 version of Florida Statutes

unless otherwise stated.

2/ As required by Florida Administrative Code Rule 28 -

10 6.213(5)(b), a notary public was physically present with

Petitioner, administered the oath, and filed written

certification in this proceeding, confirming Petitioner's

identity and that he took the oath or affirmation.

3/ As addressed in greater detail below, Respondent disputes

Petitioner's standing to challenge Respondent's agency statements

as unadopted rules. For DOAH to have jurisdiction to conduct

this proceeding and issue a final order determining whether

Respondent's agency statements are unadop ted rules, Petitioner

must have standing. Abbott Labs. v. Mylan Pharms., Inc. , 15 So.

3d 642, 657 n.2 (Fla. 1st DCA 2009)("standing in the

administrative context is a matter of subject matter

jurisdiction").

4/ Here, Petitioner challenges only a porti on of TL - 10 ÏÏ

specifically, section IV., item B., the Note on page TL - 10 - 12,

which states: "NOTE: All USED vehicles coming into Florida from

a foreign country, including dealer transactions, MUST have the

VIN verified by a DMS Compliance Examiner." For s horthand

purposes, this Final Order refers to "TL - 10" as the challenged

statement , but this proceeding does not challenge TL - 10 in its

entirety, only the provision specifically identified in this

endnote .

5/ Petitioner also challenged TL - 10 and RS/TL 14 - 18 as invalid

exercises of delegated legislative authority. Because these

statements were neither proposed nor adopted as rules, their

substantive validity could not be challenged in a proceeding

brought under section 120.56(4). Accordingly, by O rder is sued on

October 27, 2016, the undersigned limited the scope of this

proceeding to determining whether the challenged statements were

unadopted rules that violated the rulemaking mandate in section

120.54(1)(a).

6/ The motions for summary final order we re denied on the basis

of the existence of disputed issues of material fact that

required demonstration through evidence tendered and admitted in

an evidentiary hearing. The motion for default judgment was

denied on the basis that such relief is not avail able under

chapter 120.

7/ On January 17, 2017, Petitioner filed a document titled "Re:

Proposed Final Order," explaining why he did not file a p roposed

f inal o rder and offering to do so if the tribunal thought it

would be helpful for him to submit one. The undersigned did not

respond or accept Petitioner's offer because the deadline for

filing proposed final orders had passed.

8/ At all times pertinent to this proceeding, Ms. Williams acted

in her capacity as the manager of Opinicus Sentinel, trustee of

the Trust.

9/ To establish that he is a co - trustee of the Trust and that the

Trust owns the Vehicle, Petitioner testified to that effect at

the final hearing and provided a Certification of Trust pursuant

to section 736.1017, Florida Statutes, whic h was admitted into

evidence. Pursuant to section 736.1017, the provision of a

certification of trust that contains all the information required

under that statute obviates the need to furnish a copy of the

trust instrument itself to anyone other than a b eneficiary.

Pursuant to this statute, the Certification of Trust is accepted,

along with Petitioner's credible testimony, as adequate to

establish that Petitioner is a co - trustee of the Trust.

10/ Without belaboring the parties' underlying substantive

dispute as to whether Respondent correctly denied the application

for certificate of title for the Vehicle (which is not at issue

in this proceeding) the evidence indicates that Respondent has

not accepted the sufficiency of the proof that Petitioner

prov ided in an effort to establish the VIN of the 2001 Porsche

996/911 Turbo vehicle owned by the Trust for purposes of issuance

of a certificate of title pursuant to section 319.23, Florida

Statutes. Although the Vehicle's VIN number remains a point of

conte ntion that may be addressed in an adjudicatory hearing under

sections 120.569 and 120.57(1), the VIN alleged in the Amended

Petition is accepted in this proceeding solely for the purpose of

identifying the specific vehicle at issue.

11/ This form has b een adopted by reference in Florida

Administrative Code Rule 15C - 21.001.

12/ Pursuant to section 320.03(1), Florida Statutes, the Lee

County Tax Collector serves as an agent for Respondent in the

processing of motor vehicle title transactions and associ ated

registrations.

13/ Although styled a s a "Petition for Administrative Hearing,"

the pleading did not request a hearing under sections 120.569 and

120.57(1) to address the correctness of the agency's as - applied

action under the applicable statutes go verning issuance or denial

of the certificate of title, but instead challenged TL - 10 and

RS/TL 14 - 18 under section 120.56(4) on the basis that these

statements were substantively invalid and had not been adopted

pursuant to the rulemaking process in sectio n 120.54.

14/ RS/TL 14 - 18, issued on October 20, 2014, replaced

Respondent's Advisory Number T00 - 004, dated April 10, 2000.

15/ As noted above, although Opinicus Sentinel styled its

pleading a s a "Petition for Hearing," it did not constitute a

reques t for an as - applied adjudicatory proceeding under

sections 120.569 and 120.57(1), but instead was an unadopted

rule challenge brought under section 120.56(4). Respondent

incorrectly treated th at unadopted rule challenge as a request

for an administrativ e hearing under section s 120.569 and

120.57(1) instead of immediately referring it to DOAH, which is

vested with exclusive jurisdiction over rule challenges.

Alternatively, Respondent could have dismissed the challenge with

the explanation that the rule c hallenge needed to be filed with

DOA H rather than with Respondent. E ven assuming arguendo that

the challenge filed by Opinicus Sentinel was properly treated as

a proceeding under sections 120.569 and 120.57(1), section

120.569(2)(a) provides that once a m atter has been referred to

DOAH, the referring agency is not to take any further action with

respect to the matter except as a party litigant. In any event,

because jurisdiction over the proceeding was vested in DOAH on

February 25, 2015 , Respondent was n ot authorized to grant leave

to amend the petition for hearing or to otherwise take any

further agency action asserting an additional basis for denial of

the certificate of title for the Vehicle. To this last point, it

is further noted that even if the Fe bruary 25, 2015 , letter were

intended to constitute separate agency action, it did not so

inform Opinicus Sentinel by providing a clear point of entry , as

required by section 120.569 (1), notifying Opinicus Sentinel of

its right to request a hearing under s ections 120.569 and

120.57(1) to challenge that agency action.

16/ Case No. 15 - 0484 was dismissed on the basis that Stephen J.

Williams, as the beneficiary of the Trust, was not a real party

in interest for purposes of having standing as a substantiall y

affected person in the proceeding.

17/ The definition of "rule" in section 120.52(16) expressly

excludes:

(a) Internal management memoranda which do

not affect either the private interests of

any person or any plan or procedure important

to the publ ic and which have no application

outside the agency issuing the memorandum.

(b) Legal memoranda or opinions issued to an

agency by the Attorney General or agency

legal opinions prior to their use in

connection with an agency action.

(c) The preparation or modification of:

1. Agency budgets.

2. Statements, memoranda, or instructions to

state agencies issued by the Chief Financial

Officer or Comptroller as chief fiscal

officer of the state and relating or

pertaining to claims for payment submitted by

s tate agencies to the Chief Financial Officer

or Comptroller.

3. Contractual provisions reached as a

result of collective bargaining.

4. Memoranda issued by the Executive Office

of the Governor relating to information

resources management.

18/ Respond ent did not argue, or present any evidence to show,

that TL - 10 or RS/TL 14 - 18 fell within any of the exclusions from

the definition of "rule" in section 120.52(16)(a) through (c). A

review of these exclusions confirms they are not applicable to

this case.

19/ Although Respondent effectively admitted, in its Amended

Responses to Requests for Admissions, Responses to Request

Nos. 4, 5, and 6, that TL - 10 and RS/TL 14 - 18 are rules, that

admission is not legally sufficient, in and of itself, to render

the c hallenged statements rules. As discussed herein, the

competent substantial evidence in the record establishes that

TL - 10 and RS/TL 14 - 18 are rules.

20/ Section 120.54(1)(a)1. provides that rulemaking is presumed

feasible unless the agency proves that it has not had sufficient

time to acquire the knowledge and experience reasonably necessary

to address a statement by rulemaking; or related matters are not

sufficiently resolved to enable the agency to address a statement

by rulemaking. Section 120.54(1 )(a)2. provides that rulemaking

shall be presumed practicable to the extent necessary to provide

fair notice to affected persons of relevant agency procedures and

applicable principles, criteria, or standards for agency

decisions unless the agency proves t hat detail or precision in

the establishment of principles, criteria, or standards for

agency decisions is not reasonable under the circumstances, or

the particular questions addressed are of such a narrow scope

that resolution of the matter is impracticab le outside of an

adjudication to determine the substantial interests of a party

based on individual circumstances.

21/ Here, Petitioner is a trustee of the Trust that owns the

Vehicle. Petitioner is authorized to act on behalf of the Trust

in this proce eding. See §§ 736.0816, 736.0801, and 736.0809,

Fla . Stat.

22/ In Ward and Televisual Communications , the injuries found

sufficient to satisfy the "injury in fact of sufficient

immediacy" requirement were less direct and immediate than the

injury Petiti oner has suffered in this proceeding. In those

cases, the rules being challenged did not directly regulate the

challengers, but had the collateral effect of regulating their

conduct. By contrast, here, the unadopted rules have been

directly applied to de ny the certificate of title for the Vehicle

owned by the Trust for which Petitioner is a trustee. Ward and

Televisual Communications stand as examples in which courts have

found "injury in fact" sufficient to establish rule challenge

where the impacts of t he rules on the challengers were attenuated

and were less direct than the impacts on Petitioner in this case.

23/ The court in Jacoby referred to these policies as "non - rule"

policy. "Non - rule policy" is a moniker ÏÏ confusing and now

outdated ÏÏ used to d escribe policies that constitute "rules" as

defined in section 120.52(16) but that have not been adopted

pursuant to the rulemaking procedures in section 120.54. More

recently, the Legislature enacted the term "unadopted rule,"

codified at section 120.52( 20), to describe agency statements

that fall within the definition of "rule" but that have not been

adopted pursuant to the rulemaking procedures in section 120.54.

24/ Although both Professional Firefighters and Coalition of

Mental Health Professions w ere professional associations

challenging rules of behalf of their members, that fact does not

affect the applicability of those holdings to this case. For an

association to have standing to challenge rules on behalf of its

members, the association is req uired to allege and prove that,

among other things, a substantial number of its members are

"substantially affected" by the rule. Fla . Home Builders Ass'n

v. Dep't of Labor and Emp 't Sec. , 412 So. 2d 351 (Fla. 1982).

Both Professional Firefighters and Co alition of Mental Health

Professions address this "prong" of the Florida Home Builders

standing test, and both hold that being subject to regulation by

a rule is sufficient to establish injury in fact for purposes of

being "substantially affected" by the r ule.

25 / See note 15 , supra .

26 / Again, it is important to note the scope of this proceeding.

This proceeding solely addresses whether the challenged

statements are unadopted rules that violate section 120.54(1).

If Petitioner is successful in this p roceeding, the result is

that Respondent no longer can apply TL - 10 and RS/TL 14 - 18 as a

basis for denying a certificate of title for a motor vehicle. Of

course, this does not mean that Respondent could not deny a

certificate of title on other pertinent gr ounds. As previously

noted, whether Petitioner is entitled to issuance of the

certificate of title for the Vehicle under chapter 319 is not at

issue in this proceeding. Thus, if Respondent were to deny a

certificate of title on grounds other than the cha llenged

statements ÏÏ such on the basis of statutes or adopted rules ÏÏ and

Petitioner disputed the substantive (as opposed to procedural)

correctness of that decision, a petitioner could challenge that

decision in a proceeding brought under sections 120.569 a nd

120.57(1).

27 / Section 120.56(4)(e) states: "[i]f an administrative law

judge enters a final order that all or part of an unadopted rule

violates section 120.54(1)(a), the agency must immediately

discontinue all reliance upon the unadopted rule or any

substantially similar statement as a basis for agency action."

COPIES FURNISHED:

Nicholas Adam Merlin, Esquire

Department of Highway Safety

and Motor Vehicles

2900 Apalachee Parkway , Room A - 432

Tallahassee, Florida 32399

(eServed)

Yale H. Olenic k, Esquire

Department of Highway Safety

and Motor Vehicles

2900 Apalachee Parkway , Room A - 432

Tallahassee, Florida 32399

(eServed)

Stephen Williams

1019 Southeast 4th Place

Cape Coral, Florida 33990

(eServed)

Terry L. Rhodes, Executive Director

Depar tment of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room B - 443

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

(eServed)

Christie S. Utt, General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A - 432

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

(eServed)

Ernest Reddick, Chief

Alexandra Nam

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Admin istrative Proce d ures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(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 the original

notice of administrative appeal with the agency clerk of the

Division of Administrativ e Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquar ters or where a party resides or

as otherwise provided by law.