17-003894RX Florida Automobile Dealers Association vs. Florida Department Of Highway Safety And Motor Vehicles Status: Closed DOAH Final Order on Monday, November 6, 2017.

Summary: Petitioner demonstrated that existing rule 15C-16.012(5) is an invalid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA AUTOMOBILE DEALERS

ASSOCIATION,

Petitioner,

vs. Case No. 17 - 3894RX

FLORIDA DEPARTMENT OF HIGHWAY

SAFETY AND MOTOR VEHICLES,

Respondent.

_______________________________/

FINAL ORDER

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

o n September 27 , 2017, in Tallahassee, Florida, before

Administrative Law Judge Yolonda Y. Green of the Division of

Admini strative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: R. C raig Spickard, Esquire

John W. Forehand, Esquire

Kurkin Forehand Brandes LLP

315 South Calhoun Street, Suite 850

Tallahassee, Florida 32301

For Respondent: Jonathan P. Sanford, Esquire

Paul A. Vasquez, Esquire

Florida Department of Highway

Safety and Motor Vehicles

Neil Kirkman Building, Room A - 432

2900 Apalachee Parkway

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Florida Administrative Code Rule 15C - 16.012(5) 1/

(the ÐRuleÑ) is an invalid exercise of delegated legislative

authority.

PRELIMINARY STATEMENT

On July 11, 2017, the Florida Automobile Dealers

Association (t he ÐFADAÑ) filed a Petition alleging that: Rule

15C - 16. 012(5) , adopted by the Department of Highway Safety and

Motor Vehicles (the ÐDepartmentÑ), is an invalid exercise of

delegated authority under section 120.52( 8), Florida Statutes

(2017) . 2/

On July 13, 2017, this matter was assigned to the

undersigned. On July 18, 2017, the undersigned conducted a

t elephonic scheduling conference , during which t he parties

agreed to schedule the final hea ring for a date beyond the time

frame pr ovided in section 120.56(1 )(c) , and scheduled the final

hearing on September 15, 2017. On September 13, 2017, the

p arties filed a Joint Motion for Continuance, which was granted.

The case was rescheduled for September 27, 2017.

The final hearing convened on September 27, 2017 , as

scheduled. The p arties jointly presented three witnesses at the

final hearing: Carl A. Ford, a business relationship

consultant, for the Department ; Robert Leggiero , a senior

director of TitleTec; and Theodore Louis Smith, president of

FADA .

The p arties offered Joint Exhibits 1 through 9, which were

admitted into evidence. FADAÓs Exhibits 1 through 4 were

admitted. The DepartmentÓ s Exhibits 1, 3, and 5 through 7 were

also admitted.

A one - volume Transcript was filed with DOAH o n October 5 ,

2017. The p arties timely filed Proposed Final Orders (Ð PF OÑ),

which have been con sidered in preparation of this Final Order.

FINDING S OF FACT

The following findings of fact are based on the testimony

and exhibits admitted at the final hearing and the agreed facts

in the pre - hearing stipulation.

Parties

1. Petitioner, FADA, is a not - for - profit trade association

of licensed f ranchise motor vehicle dealers in Florida . FADA is

organized and maintained for the benefit of approximately 800

members, which includes 85 to 90 pe rcent of the licensed

franchise motor vehicle dealers in Florida.

2. FADA regularly coordinates the common interests of its

members and represents its members before the L egislature with

respect to legislation and rules affecting franchised dea lers.

3 . Respondent, the Department, is the agency of the State

of Florida responsible for regulating electronic filing system

(Ð EFS Ñ) and the EFS agents . The Department adopted the Rule ,

which became effective December 14, 2010. The Rule was amended

on November 22, 2011 , but has not been amended since that time .

Titling and Registration of Vehicles

4 . Every motor vehicle that is to be driven on a road in

Florida must be registered with the Department. § 320.02(1),

Fla. Stat. The initial registra tion a customer receives m ay

either be temporary or permanent. If the initial registration

is temporary, t here is a period of 30 days during which the

temporary registration must be converted to a permanent

registration.

5 . In Florida, sellers of motor vehicles are required to

effect transfers of title and registration as pa rt of a sale of

motor vehicles.

6 . The EFS provides an electronic method for the titling

and registration of motor vehicles. EFS a gents are those

persons or entities who are e ngaged in selling products for

which a title or registration is needed. Fla. A dmin. Code R.

15C - 16.010(1)(a) and (b). A substantial number of FADAÓs

members are EFS a gents .

7. T he EFS was developed in the 1990s to permit dealers to

make titling a nd reg istration more efficient. The system also

enhanced safety during a ro adside stop for law enforcement by

making registration information readily available.

8 . At the beginning of the process, an EFS a gent, who

c ould be a motor vehicle dealer , like the m embers of FADA , sells

a vehicle and electronically submits information through the EFS

to a Certified Service Provider (ÐCSPÑ) .

9 . The CSP provide s the softw are system that is used by

EFS a gents to submit titling and registratio n transactions for

proces sing.

10 . Tax collecto rs are also part of the process and are

responsible for preparing the paperwork that is submitted to

finalize a titling or registration transaction. Some tax

collectors outsource these responsibilities to private entities ,

which f un ction as private tag agents (ÐPTAsÑ).

11 . While t he EFS is a comprehensive method to

electronically file vehicle title and registration transactions,

there is also a limited sub - system of the EFS, Electronic

Temporary Registration (ÐETRÑ). The ETR i s limited to tempora ry

registration of vehicles. It does not involve titling.

12 . There are multiple methods for submitting the

necessary paperwork for titling and/or regist ering a motor

vehicle. This can be done manually by taking it to a public or

p rivate tag agency, and electronically by using the ETR and the

EFS or the EFS only .

13 . EFS agents are subject to statutes and rules

pertaining to titling and registration of motor vehicles in

Florida.

Rule and Statutory Authority

14 . T he rule at issu e in this case concerns the

DepartmentÓs authority over the EFS .

15 . The R ule , 15C - 16.012(5), provides:

If an EFS agent charges a fee to the

customer for use of the electronic filing

system in a title or registration

transaction, the fee shall be discl osed

separately and in a clear and conspicuous

manner in the sales agreement along with the

other options for titling and registration.

The EFS agent may not disclose or disguise

this as a State or Government fee.

1 6 . The Rule requires that an EFS agent charging a fee to

use the EFS , disclose the EFS filing fee separately and in a

cl ear and conspicuous manner and provide other options for

titling and registration.

17 . The Rule cites section 320.03(10)(a) , Florida

Statutes, as the l aw being implemented .

18 . Section 320.03(10) provides:

Jurisdiction over the electronic filing

system for use by authorized electronic

filing system agents to electronically title

or register motor vehicles, vessels, mobile

homes, or off - highway vehicles; issue or

tr ansfer registration license plates or

decals; electronically transfer fees due for

the title and registration process; and

perform inquiries for title, registration,

and lienholder verification and

certification of service providers is

expressly preempted to the state, and the

department shall have regulatory authority

over the system. The electronic filing

system shall be available for use statewide

and applied uniformly throughout the state.

An entity that, in the normal course of its

business, sells pr oducts that must be titled

or registered, provides title and

registration services on behalf of its

consumers and meets all established

requirements may be an authorized electronic

filing system agent and shall not be

precluded from participating in the

el ectronic filing system in any county.

Upon request from a qualified entity, the

tax collector shall appoint the entity as an

authorized electronic filing system agent

for that county. The department shall adopt

rules in accordance with chapter 120 to

rep lace the December 10, 2009, program

standards and to administer the provisions

of this section, including, but not limited

to, establishing participation requirements,

certification of service providers,

electronic filing system requirements , and

enforceme nt authority for noncompliance.

The December 10, 2009, program standards,

excluding any standards which conflict with

this subsection, shall remain in effect

until the rules are adopted. An authorized

electronic filing agent may charge a fee to

the custo mer for use of the electronic

filing system.

19 . Section 320.03(10) gives the Department regulato ry

authority over the EFS and requires the Department to adopt

rules to administer the EFS . The statute also requires that the

Department a dopt rules to r eplace the 2009 program s tandards.

20 . Section 320.03(10) also explici tly p rovides that an

EFS a gent is permitted to charge a fee to the customer for use

of the EFS . However, there is no req uirement in the statute

that an EFS a gent satisfy any condition s when charging the fee.

Specifically, the statute does not require that the EFS agent

make any type of disclosure regarding the fee or other options

for titling or registration .

2009 Program Standards

21 . Respondent relies upon the language in the st atute

related to replacement of the 2009 program standards to support

its position that section 320.03( 10) provides authority for the

R ule .

22 . Over the course of legislative sessions in 2009 and

2010, the regulatory authority for the EFS was transferr ed from

the Florida Tax Collectors Service Corporation (ÐFTCSCÑ) to the

Department as provided in section 320.03(10).

23 . The 2009 p r ogram s tandards were a set of standards

used by the F TCSC for administering participation in the EFS

when the F TCSC had responsibility for administeri ng the EFS.

The 2009 program s tandards were to remain in place until

adopti on of the R ule.

24 . The 2009 program standards expressly regulated certain

participation requirements placed upon dealers seeking to become

a n appro ved Limited Branch Office (ÐLBOÑ), which is the

e quivalent of an EFS a gent.

25 . One of the 2009 program standards required that

dealers seeking Ðappointment as a participating LBOÑ must submit

a letter agreeing to comply with certain disclosure requireme nts

as part of a sale , including the contents of a buyerÓs order.

The ÐbuyerÓs orderÑ referenced in the 2009 p rogram s tandards has

the same meaning in the industry as the term Ðsales agreementÑ

in r ule 15C - 16.012(5). Under the 2009 program standards,

fai lure of a dealer t o adhere to the standards could result in

loss of its LBO status. The relevant portions of the LBO

participation requirements are discussed further below.

26 . S ection III.A.2.a. of the 2009 program s tandards

provided that the letter r equesting approval for LBO status

shall include a statement that use of the EFS will be an

optional transaction and will be disclosed on the buyer Ó s orders

as ÐElectronic Filing.Ñ

27 . Similarly, s ection V.C.2.(d)4.b.ii. provided that a

dealerÓs applicat ion for LBO status may be rejected if the

letter provided to the tax collector does not mention the

information required in s ection III.A.2.a.

28 . Section III.A.2.c. provided that a dealer seeking LBO

status must include in their letter to the tax collect or a

statement that the dealer will not represent to the EFS

customers that they are required to transact title transaction

business through the EFS.

29 . Li kewise, s ection V.C.2.(d)4.b.iv . provided that a

dealerÓs application for LBO status may be reject ed if the

dealerÓs letter does not include a statement that the dealer

agrees not to represent to potential EFS customers that the

customer is required to transact title trans action business

through the EFS and pay additional charge s , if applicable.

30 . The undersigned finds that these requirements of the

2009 program standards required dealers utilizing the EFS at

that time to make certain disclosures for the pur pose of

participation as an LBO .

31 . T he disclosure of fees charged to customer s fo r use of

the EFS system was not addressed in the 2009 program s tandards.

In fact, the 2009 version of section 320.03(10) provided that a

dealer Ðmay charge a fee to the customer for use of the

electronic filing system, and such fee is not a component of the

program standards.Ñ § 320.03, Fla. Stat. (2009).

Different Methods for Titling and Registration

32 . In addition to the requirement to disclose the fee for

use of the EFS, t he R ule requires EFS agents to disclose Ðother

options for titling and regist ration.Ñ

33 . In the motor vehicle industry, there are multiple

methods for titling and registration.

34 . Dealers can deal directly with county tax collecto rs

for titling and registration, which is performed manually.

35 . Dealers can use ETR vendo rs for the temporary

registration process. Like with the EFS, the ETR providers

charge dealers a fee for use of the ETR system.

36 . A dealer that has a contract with one of the PTAs in

Florida can use that PTA to process components of the titling

and reg istration process. PTAs are entities that dealers may

hire as a service provider to process registration and titling

work manually . Like with EFS providers and ETR providers, PTAs

charge dealers a fee for the services they provide in the

ti tling and regi stration process. Given that dealers must have

contracts with PTAs in order to utilize their services and that

PTAs charge dealers a fee for use of their services, a dealer

using a PTA for components of the titling and registration

processes is not the sa me as a dealer interacting directly with

a county tax collector.

37 . The multiple methods for titling and registration

could result in multiple options for EFS agents.

Uncertainty about Meaning of ÐOther OptionsÑ

38 . During and after the rulemaking proc ess, Mr. Smith ,

the president of FADA, expressed concern about th e

interpretation of the requirement in the R ule to disclose Ðother

options for titling and registration .Ñ Mr. Smith sent a number

of emails seeking cl arification regarding this requirement .

39 . On December 8, 2010, Mr. Smith sent an email on behalf

of FADA to Julie Baker at the Department inquiring whether the

Rule meant that a dealer would have to disclose all the

potential options available in the marketplace or only those

options availa ble to that particular dealer .

40 . On December 19, 2010, Mr. Smith received a response

from Boyd Walden, the DepartmentÓs then c hief of the Bureau of

Titles and Registrations, stating that a legal opinion on the

issue was being requested. Mr. Smith nev er received the legal

opinion on the issue.

41 . Approximately two years later, o n January 7, 2013,

Mr. Smith sent Mr. Walden another email notifying the Department

that the importance of th is issue had escalated because FADA

members were being sued by co nsumers or their representatives

for failure to comply with the R ule . Mr. Smith requested

guidance from the Department regarding interpreta tion of the

R ule .

42 . Mr. Walden, as the then d irector of the Division of

Motorist Services, respo nded on January 8, 2013, and offered an

example of other options. For example, he suggested Ðthe dealer

informing the buyer of the option for the dealer to file the

paperwork with the tax collector manually.Ñ

43 . On January 8, 2013, Mr. Smith emailed Mr. Walden and

re quested a letter from the DepartmentÓs counsel clar ifying what

the R ule required.

44 . On October 30, 2013, Mr. Smith emailed Mr. Walden

notifying the Department that dealers were continuing to be sued

regarding compliance with the R ule and requesting cl arification

regarding the R ule.

45 . On October 30, 2013, Mr. Walden stated, Ðthere are

other options such as manual registration through the tax

c ollector. How you offer those Òother optionsÓ is up to you.Ñ

Mr. Walden continued that FADAÓs legal team Ðshould decide how

to best meet the Òother optionsÓ requirement based on the level

of risk your clients are willing to assume.Ñ

46 . Mr. Smith still had questions regarding compliance

with the R ule. Mr. WaldenÓs responses did not clarify the

meaning of Ðother options for titling and registration.Ñ

47 . For example, the Rule fails to provide guidance

whether the options include all possible options or only options

available to the specific individ ual dealer.

48 . The Rule did not provide specific cla rification

regarding the type (permanent or temporary) of titling and

registration. The ETR is an option that offers titling.

However, use of EFS would be required to complete the permanent

registration.

49 . Further, the Rule requires that a dealer di sclose

other options for titling and registration, but did not provide

guidance regarding the type of options, (i.e. , manual,

electronic, private, or public) . It also specifies Ðother

optionsÑ but does not specify whether the disclosure includes

other opt ions that also may involve a fee. There are both

electronic and manual options that require a fee.

Standing

50 . The Rule affects EFS agents that charge a fee to

customers for EFS filing . A substantial number of FADA members

are EFS agents and charge a f ee to their customers and are ,

thus, directly and subs tantially impacted by the Rule.

CONCLUSIONS OF LAW

51 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with s ections 120 .56, 120.569 and

120.57(1), Florida Statutes (2017) .

52 . Section 120.56 allows a person or entity who is

substantially affected by a rule or agency statement to initiate

a challenge. To establish standing under the "substantially

affected" test, a party must demonstrate that : 1) the rule will

result in a real and immediate injury in fact, and 2) the

alleged interest is within the zone of interest to be protected

or regulated. Jacoby v. Fl a . B d . of Med . , 917 So. 2d 358 (Fla.

1st DCA 2005); see also Fl a . B d . of Med. v. Fl a . Acad. of

Cosmetic Surgery , 808 So. 2d 243, 250 (Fla. 1st DCA 2002),

superseded on other grounds , D epÓ t of Health v. Merritt , 919 So.

2d 561 (Fla. 1st DCA 2006).

53 . Associations have standing to bring a rule challenge

when:

[A] substa ntial number of [the

association]Ós members, although not

necessarily a majority, are Ðsubstantially

affectedÑ by the challenged rule. Further,

the subject matter of the rule must be

within the associationÓs general scope of

interest and activity, and the relief

requested must be the type appropriate for a

trade association to receive on behalf of

its members. Fla. Home Builders AssÓn v.

DepÓt of Labor and Emp. Sec. , 412 So. 2d

351, 353 - 54 (Fla. 1982); see also NAACP,

Inc. v. Bd. of Regents , 863 So. 2d 29 4, 298

(Fla. 2003).

54 . The testimony presented during the final hearing is

sufficient to demonstrate that a substantial number of

PetitionerÓs membership would be substantially affected by the

R ule in a manner and degree sufficient to establish standin g in

this case. See, e.g., Abbott Labs. v. Mylan Pharms. , 15 So. 3d

642, 651 n.2 (Fla. 1st DCA 2009); DepÓt of ProfÓl Reg., Bd. of

Dentistry v. Fla. Dental Hygienist AssÓn , 612 So. 2d 646, 651

(Fla. 1st DCA 1993); see also Cole Vision Corp. v. DepÓt of Bu s.

& ProfÓl Reg. , 68 8 So. 2d 404, 407 (Fla. 1st DCA 1997)

(recognizing that Ð a less demanding standard applies in a rule

ch allenge proceeding than in an action at law, and that the

standard differs from the Ò substantial interest Ó standard of a

licensure pr oceeding. Ñ ); Coalition of Mental Health ProfÓls v.

DepÓt of ProfÓl Reg. , 546 So. 2d 27, 28 (Fla. 1st DCA 1989)

(stating that Ð[t]he fact that appellantÓs members will be

regulated by the proposed rules is alone sufficient to establish

that their substantia l interests will be affected and there is

no need for further factual elaboration of how each member will

be personally affected.Ñ). See NAACP, Inc. v. B d . of Regents ,

863 So. 2d 294, 300 (Fla. 2003); Fl a . Homebuilders AssÓn v.

DepÓt of Labor & Emp. Sec . , 412 So. 2d 351, 353 - 54 (Fla.

1982)(association may meet standing requirements if a

substantial number of members, although not necessarily a

majority, are substantially affected by the R ule).

55 . As Petitioner, FADA "has the burden of proving by a

prepo nderance of the evidence that the existing rule is an

invalid exercise of delegated legislative authority as to the

objections raised. " § 120.56(3)(a), Fla. Stat.

56 . Peti tioner challenges the proposed R ule in accordance

with the definition of " invalid exercise of delegated

legislative authority " in sectio n 120.52(8) , which provides in

pertinent part :

(8) ÐInvalid exercise of delegated

legislative authorityÑ 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:

* * *

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

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

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is require d

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

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

v ests unbridled discretion in the agency;

* * *

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpr et

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agencyÓ s

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the enabling statute.

57 . Specifically , Petitioner asserts that the Rule is

invalid under section s 120. 52(8) (b), (c), and (d ).

Whether Rule 15C - 16.012(5) Exceeds Rulemaking Authority

58 . Petitioner assert e d that the R ule is invalid because

it exceeds the grant of rulemaking authority, citation to which

is required by section 120.54(3)(a)1., by attempting to place a

condi tion on EFS agents that wish to charge a fee for use of the

EFS .

59 . The crux of Petitioner Ós argument , with respect to

section 120.52(8)(b), is that the grant of rulemakin g authority

pursuant to section 320.03(10) is not sufficient authority to

est ablish that an EFS agent must disclose Ðother titling and

registration options. Ñ Respondent, on the other hand, argues

that there is Ð statutory authority Ñ for the Rule.

60 . One of the more recent cases interpreting the

standards related to rulemaking a uthority is United Faculty of

Florida v. Florida State Board of Education , 157 So. 3 d 514 ,

516 - 517 (Fla. 1st DCA 2015). In that case, the State Board of

Education adopted a rule that established standards and criteria

for continuing contracts with full - ti me faculty members employed

by Florida College System institutions. T he First District

stated:

A rule is invalid under section 120.52(8)(b)

if the agency Ðexceed[s] its grant of

rulemaking authority.Ñ A grant of

rulemaking authority is the Ðstatutory

la nguage that explicitly authorizes or

requires an agency to adopt [a rule].Ñ

§ 120.52(17), Fla. Stat. The scope of an

agencyÓs rulemaking authority is constrained

by section 120.536(1) and the so - called

Ðflush - left paragraphÑ in section 120.52(8),

which p rovide that an agency may only adopt

rules to Ðimplement or interpret t he

specific powers and duties granted by the

[agencyÓs] enabling statuteÑ; that an agency

may not adopt rules to Ðimplement statutory

provisions setting forth general legislative

intent or policyÑ or simply because the rule

Ðis reasonably related to the purpose of the

enabling legislation and is not arbitrary or

capricious or is within the agencyÓs class

of powers and dutiesÑ; and that Ð[s]tatutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the enabling statute.Ñ Section

120.536(1) and the flush - left paragraph in

s ection 120.52(8) require a close

examination of the statutes cited by the

agency as auth ority to determine whether

those statutes explicitly grant the agency

authority to adopt the rule. As this court

famously stated in [ Southwest Florida Water

Management District v. ] Save the Manatee

[ Club, Inc. , 773 So. 2d 594 (Fla. 1st DCA

2000)], the question is Ðwhether the statute

contains a specific grant of legislative

authority for only where the legislature has

enacted a specific statute, and authorized

the agenc y to implement it. . . .Ñ); see

also Fla. Elections CommÓn v. Blair , 52 So.

3d 9, 12 - 13 (Fla. 1st DCA 2010) (explaining

that the definition of Ðrulemaking

authorityÑ is section 120.52(17) does not

further restrict agency rulemaking authority

beyond what is contained in the flush - left

paragraph in section 120.52(8), as construed

by this court in Save the Manatee Club and

subsequent cases.

61 . With these principles in mind, the R ule cites to

section 320.03(10) (a) as its ru lemaking autho rity and section

320 .03(10)(a) and (b) as the law the R ule seeks to implement.

62 . Section 320.03(1) authorizes the Department to adopt

rules Ðto replace the December 10, 2009 program standards and to

administer t he provisions of this section , including, but not

limited t o, establishing participation requirements,

certification of service providers, electronic filing system

requirements, and enforcement authority for noncompliance.Ñ

However, nothing in section 320.03(10) grants the Department

authority to adopt rules regar ding conditions related to

charging a fee for use of the EFS.

63. A s set forth in detail in the Findings of Fact herein,

the 2009 program s tandards did not regulate the fees dealers

could charge to customers or disclosures that dealers must make

to cus t omers in order to charge a fee. The 2009 program

standards only regulated the disclosures that dealers must make

to meet the requirements to participate in the EFS as an LBO .

Moreo ver , the L egislature expressly excluded the fee charged to

cus tomers for use of the EFS f rom the 200 9 program s tandards.

See § 320.03(10), Fla. Stat. (2009) .

64. Accordingly, the Department has exceeded its

rulemaking authority and the Rule is an invalid exercise of

delegated legislative authority .

Whether Rule 15C - 16 .012( 5) Enlarges, Modi fies, or Contravenes

t he Law Implemented

65 . Petitioner also asserts that r ule 15 C - 16.012(5) is an

invalid exercise of legislatively delegated authority because it

enlarges, modifies, or contravenes the specific provisions of

la w i mplemented, in violation of section 120.52(8)(c). In

support of this contentio n, Petitioner asserts that the R ule is

invalid because it enlarges and modifies the law implemented by

requiring EFS agents to provide Ðother titling and registration

options. Ñ Petitioner further argues that there is no condition

on the right to charge a f ee and no requirement that EFS a gents

make any sort of disclosure with respect to the fee .

66 . Under section 120.52(8)(c), the test is whether a rule

gives effect to a Ðspeci fic law to be implemented,Ñ and whether

the rule implements or interprets Ðspecific powers and duties.Ñ

State, Bd. of Trustees v. Day Cruise AssÓn, Inc. , 794 So. 2d

696, 704 (Fla. 1st DCA 2001). The provision of section

320.03(10), implemented in this ca se, is silent as to customer

disclosures regarding the fee charged for use of the EFS and

confers no authority to the Department to regulate such

disclosures regarding the fee.

67 . Respondent asserts that the Rule does not enlarge or

modify the statute because the statute permits regulation of

disclosure of items on the sellerÓs agreement. The Department

also takes a public policy position that the disclosure is

required to protect consumers.

68 . However, t he disclosure re quirement in the R ule is not

authorized by the statute and extends the R ule beyond the

specific powers and duties conferred by the enabling statute.

Accordingly, the R ule is an invalid exercise of delegated

legislative authority .

Whether Rule 15C - 16.012(5) is Vague

69 . Section 1 20.52(8)(d) provides that a rule is an

invalid exercise of delegated legislative authority where the

rule is vague, fails to establish adequate standards for agency

decisions, or vests unbridled discretion in the agency. A rule

is considered vague in viol ation of section 120.52(8)(d) if it

requires performance of an act in terms that are so vague that

people of common intelligence must guess as to its meaning.

State v. Peter R. Brown Constr ., Inc. , 108 So. 3d 723, 728

(Fla. 1st DCA 2013); S w . Fla. Water M gmt. Dist. v. Charlotte

Cnty. , 774 So. 2d 903, 915 (Fla. 2d DCA 2001).

70 . The R ule is vague and fails to establish any standards

for agency decisions. It is not clear from the Rule what

options for t itling and registration an EFS a gent must disclose

i n order to comply with the Rule. Under the express terms of

the Rule, an EFS agent would be required to disclose other

options for titling and registration. An EFS agent could be

required to disclose options for titling and registration

despite the fact that the EFS agent does not use certain

methods. Moreover, section 320.03(10) is silent regarding any

condition that must be met if an EFS agent charges a fee for use

of the EFS .

71 . Based on the findings of fact above, the R ule fails to

establis h any standards for agency decisions upon which FADAÓs

members may rely in order to attempt to comply with the R ule,

and thus, the R ule is vague and an invalid exercise of delegated

legislative authority.

ORDER

Based on the foregoing Findings of Fact and C onclusions of

Law, it is

ORDERED:

1. Florida Administrative Code Rule 15 C - 16.012(5) is an

invalid exercise of delegated legislative authority as defined

in section 120.52(8), Florida Statutes; and

2. Jurisdiction is reserved for the undersigned to

consi der motions for fees and c osts pursuant to section

120.595 (3), Florida Statutes.

DONE AND ORDERED this 6th day of November , 2017 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

Administrative Law Judge

Di vision 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 6th day of Nov ember , 2017 .

ENDNOTES

1/ Formerly Fla. Admin. Code R. 15C - 18.006.

2/ Unless stated otherwise, all statutory references will be to

the 2017 version of the Florida Statutes.

COPIES FURNISHED:

Joseph R. Gillespie, Agency Clerk

Florida Department of H ighway Safety

and Motor Vehicles

Room A - 432, Mail Stop 2

2900 Apalachee Parkway

Tallahassee, Florida 32399

(eServed)

R. Craig Spickard, Esquire

John W. Forehand, Esquire

Kurkin Forehand Brandes LLP

Suite 850

315 South Calhoun Street

Tallahassee, Florid a 32301

(eServed)

Christie S. Utt, General Counsel

Florida Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A - 432

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

(eServed)

Jonathan P. Sanford, Esquire

Paul A. Vazquez, Esquire

Florida Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A - 432

2900 Apalachee Parkway

Tallahassee, Florida 32399

(eServed)

Terry L. Rhodes, Executive Director

Florida Department of Highway Safety

and Motor Vehicle s

Neil Kirkman Building, Room B - 443

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

(eServed)

Ernest Reddick, Chief

Anya Grosenbaugh

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Admin istrative Proced 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 Administrative 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 w here the agency maintains its headquarters or where a

party resides or as otherwise provided by law.