Title: Opinion File 76-57 thru 76-70
CITATION THUMBNAILS ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003460/00001
 Material Information
Title: Opinion File 76-57 thru 76-70
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 76-57 thru 76-70
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 13
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003460
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

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WmtbewA 16v 1972


I ar asked Lurry rwistnen to writf a letter for
rx signature to Cift fdults reletig t tohe i-
plicability of the rair Lb~er 3 xd Act to the
kiut st Florida Water M naa mnt atrict.








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RAYMONI CRIPPEN, C.P.A.
TED M. TETR, C.P.A.'
MICHAEL BERRYHILL, C.P.A.


Mr.
Posi
Tanr


Dea l


Fai2
man
Dist


you


TMPJ


MEMBERS
AMERICAN INSTITUTE OF
CERTIFIED PUBLIC ACCOUNTANTS
FLORIDA INSTITUTE OF
CERTIFIED PUBLIC ACCOUNTANTS

November 16, 1972


L. M. Blain
Office Box 1363
a, Florida

Buddy:

Pursuant to our joint conversation with Clint Schultz regarding the
Labor Standards Act, I have enclosed an excerpt from my payroll
cement guide which indicates that Southwest Florida Water Management
ict is not covered.

This is the extent of my research in this area and hope it will assist
n rendering your legal opinion on the matter.

Let me know if I can be of any further assistance.

Very truly yours,

CRIPPEN, REITER & BERRYHILL





Ted M. Reiter

:vb


Encl$sure


'.O ,


CRIPPEN, REITER & BERRYHILL
CERTIFIED PUBLIC ACCOUNTANTS
17 NORTHEAST FIRST AVENUE
OCALA, FLORIDA 32670
TEL. (904) 622.4156





44 6-27.71
.

are "e
employo
!intend<
of com
activity
who w
indepei
to char
A
employ
helpers
control
employ

In<
FLSA
employ
are no
substan
indeper
under a
ontrac
employ
Th
are nol
coveraj
those o:


Faisr Standards Act 3A)
)loyees" within the meaning of the FLSA. Although the statute defines
" as including to "suffer or permit" to work, that phrase was not
to stamp as an employee persons who, without promise or expectation
nationo, but solely for their personal purpose or pleasure, participate in
i carried on by others or work on the premises of another (.30). Persons
rk only for their own interest are not employees, as, for example,
lent contractors, students and trainees and persons who donate services
able organizations.
worker's furnishing of his own tools does not take him out of the
e category if he remains subject to an employer's control (.35). Drivers'
who are paid by the drivers and over whom a company exercises no
are not company employees (.40). The common law definition of
e is not necessarily conclusive for purposes of the FLSA.

pendent contractors.-Independent contractors are not entitled to
nefits, since they are not employees under its terms. Instead, they are
s whenever they employ labor. However, workers employed by them
employees of the firm that the contractor is servicing (.45). A
al opportunity to make a profit is a factor in determining an
ent contractor status (.50). Persons labelled as independent contractors
contractt designed to circumvent the Act are covered if the terms of the
are not observed, or where the relationship is really that of employer-
.
activities that an independent contractor performs for an enterprise
included in the enterprise's activities when applying the enterprise
tests.'This is true even though the contractor's activities are related to
he enterprise.


ernment employees.-Employees of the United States are not
to the benefits of the FLSA. Firemen and guards at atomic bomb
are federal employees, even though paid by an independent contractor
are local draft board members (.60). However, federal reserve bank
!s are not federal employees and are covered by the FLSA (.65).
on a cost-plus-fixed-fee government contract are employees of the
)r, not the government, even though the government owns the plant
rials, directs how the work is to be done, and controls the hiring, firing
s(.70).
rally, employees of a state or any political subdivision thereof are not


:oerum Iflowevei, Ete MM0 amendments cia extend coverage to employees ot aL


)olitlcal subdivision ot a state, who are employed in a hospital, nursing


Pri
egistrat
Sot be
Season
tate o
he. Aci,


ate employers engaged in registering motor vehicles and supplying
on plates under a contract with a state to provide such services would
eluded from the Fair Labor Standards Act concept of "employer" by
their performance of a state function. While the Act provides that a
t political subdivision of a state is not an "employer" for purposes of
it does not exclude from the definition those private employers
[The anet age is 3647-3.]


6 60


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entitled
project:
[.55), a;
employ
Work
contract
and ma
nd wa
Ge


;tate, ot


/AA~'~K


CC


Payroll Management Guide


rk, i:


' 3223


'


ool. or local transit system (see 3175 and 3216).


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20, 1976

IDUM .

DONALD R. FEASTER, Executive Director
HERB GLASS, Director, Employee Relations

: Fair Labor Standards Act


e to the recent Supreme Court decision involving National League of
Cities vs Usery, a study was undertaken by both the Employee Relations
nd District Legal staffs. Contacts have been made with the Wage and
ur office as well as the firm of Alley and Alley. All parties in-
olved have concurred that as things now stand the District is exempt
the Fair Labor Standards Act.
n his review of the transcript of the case. Jay has come up with the
following point which we feel needs to be given serious consideration.
he transcript indicates that the court was split five to four in
avor of striking the law. This is significant in that it is very
probable the court will soon hear another case on the matter. There is
o way to predict the future decision nor the ramifications it might
ave on our overtime policy. It would not be advisable to change our
licy in conformance with the recent decision and then at some point
n the not too distant future find it necessary to initiate another
vision.
have been In contact with our finance people and they have informed
that overtime charges are averaging in the neighborhood of $345 bi-
eekly. This figure does not seem to be excessive, and, pending any
unforeseen developments, should remain fairly constant.

If we were to arbitrarily suspend all overtime payments, employee
discontent would be substantial and would certainly overshadow the mone-
tary cost savings Involved. In summary we would recommend that for the
present District overtime policy remain unchanged. In those Instances
where determinations regarding the overtime status of new positions is
concerned, we plan, for informational purposes only, to continue refer-
ring to those. guidelines established by the FLSA. With your approval,
we will continue to closely monitor the situation and keep you advised
of any future developments.


HG/aiy


cc: Jay T. Ahern


----_ I


76-611





76,-6)







MIMO TO FILE: SWFWMD Opinion File





Ci January 29, 1971 in response to Clint Schultz' question
bout whether or not the District was a fair employment
cliportunity employer, I advised they were.

Referred him to Section 112.041, Florida Statutes, which
11ovides that there shall be no discrimination in state
employment.

generally the question is directed to employers to
c termine whether or not the Fair Labor Standards Act
o? 1938 as amended, Title 29, Section 203, USCA, or
the Civil Rights Acts, Title 42, Section 2000e, USCA,
aply.)






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21/71














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---------


76-'63
V ___ .... ----- !






S76-64




october 5, 1976

emo to: Buddy Blain
rom: Myron Gibbons qj^

e: Attorney General Opinion No. 075-306

after many, many months, I finally reviewed your memo concerning
delegation of power to take final action to subordinates re-
lating to the above Attorney General opinion.

After reviewing the information and reading the Statute, I believe
that SWFWMD is not a department of the Executive Branch of the
State of Florida so the Board cannot delegate anything to any
subordinates except ministerial acts. If you agree with this,
I think we should write an opinion to the District so advising
them.

MGG:bl







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*- 'A




*0 0




ebruary 6, 1976


0: MGG
PR: LMB
RE: Attorney General Opinion No. 075-306

I have somehow overlooked the amendment to section 0.05(1
(b), F.S., which has now been construed by the attorney
general to authorize the delegation of power to take
final agency action to subordinates.
He does note that this is based on presumptive validity
and must be given effect until judicially declared unconsti-
tutional.
Ido not believe that the Governmental Reorganization Act
set forth in Chapter 20 Florida Statutes, would extend to
water managementdis~Ert s bu havnot ully rsearche
this.- -' g v H / k
I am giving you all this material merely or your information
in the event that you have, like me, didn't realize the
significance of the act (or didn't happen to read up until
now.) 4


LMB/gw L4


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A, ', S'-~~66


STATE OF FLORIDA
"W DEPARTMENT OF LEGAL AFFAIRS
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL
ROBER1 SHEVIN TALLAHASSEE. FLORIDA 32304
Attorr General

December 19, 1975

S-075-306



H orable J. Ed Straughn
E: cutive Director
D artment of Revenue
C lton Building
T lahassee, Florida 32304

Re: State Officers--Delegation of Authority--Authority
of Governor and Cabinet as head of Department of
Revenue to authorize Executive Director to take
final agency action in proceedings before the
Department. S20.03, 20.21, F.S.; SS20.05 and
P 120.52, F.S., 1974. Supp.; and 120.57, F.S., 1975;
Chs. 74-256, 74-310 and 75-191, Laws of Florida.

Sar Mr. Straughn:

You have requested my opinion on the following question:

Would S20.05(l)(b), Florida Statutes, 1974
Supplement, which was enacted after AGO 074-57
and 074-116, allow the Governor and Cabinet,
sitting as the Department of Revenue, to
authorize the Executive Director of that
Department to take final agency action in
all proceedings before the Department arising
pursuant to S120.57(1) and (2), Florida Statutes?

Your question is answered as discussed below. I am excluding
nsideration of agency action in appointing or assigning administrative
aring officers pursuant to S120.57, F.S., 1975.

Section 120.57, F.S., 1975, as enacted by the Legislature in
apter 75-191, Laws of Florida (originally enacted by Chapter
4-310, Laws of Florida), provides for administrative procedures
r agency action when the substantial interests of a party are






C,?


075-306


able J. Ed Straughn
STwo


Hone
Page


deti
or
512


and
iss'
for
par
aff
to
gro


of


The Department of Revenue is a state department headed by
Governor and Cabinet pursuant to 20.21, F.S. The Governor
Cabinet as head of the Department of Revenue are statutorily
)onsible and empowered to execute the powers, duties, and
:tions vested in the department or any subdivision thereof
t,, o+- 4e n n;2 i I0 \ P a F 1Q74 .unn_ S AOC 074-57.


.uan.. le e i. .id t u6c c
The general rule recognized in Florida is that a public officer
rot delegate his discretionary powers in the absence-of statutory.
orization. State v. Inter-American Center Authority, 84 .o..2d -i4-
.1955), Nicholas v. Wainwright, 152 So.2d 458 (Fla. 1963),' and.
's 074-116, 074-57, and 073-380. -

In the absence of statutory authority a .
public officer cannot delegate his powers, ,.
even with the approval of a court. An officer,


mined by an agency. Final agency action includes the whole
rt of an order issued by the head of an agency pursuant to
57(1) or (2), F.S., 1975. Section 120.52(2), F.S., 1974 Supp.

Section 120.57(1), F.S., 1975, provides for a hearing officer
!ormal proceedings if the agency action involves a disputed
Sof material fact, whereas S120.57(2), F.S., 1975, provides
in informal proceeding with notice to the affected person or
g of the agency action along with an opportunity for the
ted person or party to present written evidence in opposition
te agency's action or a written statement challenging the
ds upon which the agency seeks to justify its action.

Section 120.52, F.S., 1974 Supp., defines "agency" for purposes
administrative procedures as follows:

(1) 'Agency' means:
*_ -* *.

(b) Each other state officer and each
state department, departmental unit described
in 20.04, commission, ...
*,

(3) 'Agency head' means the person or
governmental unit statutorily responsible for
final agency action. (e.s.)


o -.


--


1







Hon rable J. Ed Straughn 075-306
Pa9 Three

to whom a power of discretion is intrusted,
.- cannot delegate the exercise thereof except
as prescribed by statute. He may, however, -
delegate the perforpmarce Qf a mini 4Al .i
act, .-. 67 CJS Officers S104, pp. 373-374.:

The determination of final agency action by the Governor and .
Cabinet as the head.of the Department of Revenue pursuant to.'
S1 0.57(1) and (2), F.S., 1975, is obviously a discretionary'act .'
si ce it is any determination by the agency of the-"substantial .-
nterests" of a party. Such broadly defined administrative action .
-detrmining the substantial interests of a party, including -in th. .-
.-i tance the determination--of tax liabilities as well;.as the
authority to adopt, modify, or reject conclusions of law, a. ,. ,,-. i-
tc a lesser extent findings of fact, made by hearing officers, --
ne< essarily involves- the exercise of independent judgment and
di creation and therefore is not ministerial. Cf., AGO. 04- 7.
Therefore, if the Governor and Cabinet are to delegate to the
E cutive Director of the department the authority to take final -
ac ncy action in proceedings before the department pursuant to
S30.57(1) and (2), supra, then legislative authorization mut --
e: st for same. ...

In AGO 074-116 I noted that I was.unaware of any legislative ':
aU horization to a department or head of a department to delegate
of icial discretion and judgment (final agency action per S120.57 (1). .
an (2), supra) to subordinates or others when such final official
ju gment is vested by the statutes in such department or department
he d alone. However, since the issuance of AGO 074-116 the Legis-
a1 ure has enacted Chapter 74-256, Laws of Florida (:20-,05(1)(b),
F ;., 1974 Supp.), which purportis -- allow a delegation of certain -
po ers and functions:-.. ;
AN ACT .-amending S20.05(1) Florida,
Statutes, authorizing heads of departments to
delegate powers, duties and functions; providing
an effective date. -
.':- r "* *:'<..:1 ': "

.- 20.05 Heads of- departments;- powers and ~-
duties.-Each head of a department, except as- .
otherwise provided herein, shall:
(1) (b) Have authority,-'without -being- ....
relieved of responsibility, -to execute any
of the powers, duties-and functions vested in
said department or in any administrative unit
thereof through said administrative units and"'


r








075-306
Snorable J. Ed Straughn 075-306
I ge Four


.through such assistants and deputies as shall
be designated by the head of the department
from time to time, unless the head of the
department is explicitly required by law to
perform the same without delegation. (e.s.)

Thus, pursuant to the-terms of Chapter 74-256, supra, the
._vernor and Cabinet as the head of the Department of Revenue
ve been:authorized to delegate-and execute any of its powers,
ties, and functions-through -such assistants and-deputies as
Ssignated by it unless the Governor and Cabinet as the head of
:e department are "explicitly" required by law to perform the
ity or function without delegation. The Executive Director of
ie Department of Revenue is of course an-"assistant" or "deputy"
Sthe Governor and Cabinet as-head of the department. See
0.03(6), F.S., and S20.05(7), F.S., 1974 Supp. Furthermore, I
.ind no explicit designation .in S120.57, F.S., 1975, or elsewhere
quiring the head of the department to perform final agency action
without delegation. Rather S120.57, F.S., 1975,.requires only
agency" determination or action. It is therefore my conclusion
hat the Governor and Cabinet as head.of the Department of Revenue,
re authorized to delegate to the Executive Director of the
SIepartment of Revenue the power to take final agency action
allowed by S120.57(1) and (2), F.S., 1975. I am assuming the
onstitutionality of S20.05(1)(b), supra, since it is presumptively
alid and must be given effect until judicially declared unconstitu
ional. Evans v. Hillsborough County, 186 So. 193, 196 (Fla. 1938)
ickerill v. Schott, 55 So.2d 716, 719 (Fla. 1951), and White
Crandon, 156 So. 303, 305 -Fla. 1934).-- Cf., Florida-Dry C, &
Bd. v. Economy Cash & C. Cleaners, 197 So. 550 (Fla. 1940).




SUMMARY


The Governor and Cabinet, as head of the
Department of Revenue, may authorize the delega-
tion of the power to take final agency action per
5120.57(1) and (2), F.S., 1975, to the Executive


I










075-306


H norable J. Ed Straughn
Pe Five


Director of the department because the
Legislature has authorized such delega-
tion by Chapter 74-256, Laws of-Florida
(S20.05(l) (b), F.S.,-1974 Supp.).



---- -------- -ATvTORNeY GERA I




RTL. SH IN
S. ATTORNEY GENERAL


epared by:





0^****


r Kendrick Tucker
assistant Attorney


General


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