Title: Administrative Orders - Division of Administrative Hearings - Rule-Validity-Dept. of Gerneral Services-Bidder Certification Requirement Constitute Unpromulgated Rule
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Title: Administrative Orders - Division of Administrative Hearings - Rule-Validity-Dept. of Gerneral Services-Bidder Certification Requirement Constitute Unpromulgated Rule
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Language: English
Publisher: Judicial and Administrative Research Associates, Inc.
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Administrative Orders - Division of Administrative Hearings - Rule-Validity-Dept. of Gerneral Services-Bidder Certification Requirement Constitute Unpromulgated Rule
General Note: Box 22, Folder 5 ( Administrative Orders, Dist. Courts of Appeal, Judicial Opinions - 1982 ), Item 7
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004493
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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CITE AS 4 FAIR _.-

4 4-A ADMINISTRATIVE ORDERS


the economic impact statement promulgated by Respondent
in the rule-adopting process is erroneous in its conclusion
that enactment of Ch. 10D-6, F.A.C., will result in a cost
saving to developers of real estate. To the contrary, the
record in this proceeding clearly establishes that the cost of
developing a subsdivision will increase as a result of the appli-
cation of the challenged rule. The economic impact statement,
because of its method of preparation, is not competent
evidence of the facts recited therein, in that it was not
epared by a person or persons with demonstrated ability to
make the determinations required by Sec. 120.54(2), F.S. In
addition, neither the methodology employed nor the data
utilized by the agency in preparing the economic impact
statement was sufficiently explicated so as to attach any
credibility to the conclusions reached in the statement. Under
the circumstances of this case, it is clear that the preparation
and submission of an erroneous and defective economic impact
statement constitutes an invalid exercise of delegated legislative
authority. Dept of Environmental Regulation v. Leon County,
344 So.2d 297, (Fla. 1st DCA 1977).
4. Sec. 120.54(2), F.S., requires an agency, prior to the
adoption or amendment of a rule, to give notice of its intended
action and, among other things, to list "... the specific legal
authority under which [the rules] adoption is authorized ...."
In compliance with this statutory mandate, Respondent listed
as authority for adoption of Rule 10D-6.23, Sees. 381.031
(1)(g)3, and 381.272, F.S. Sec. 381.031(1), F.S., provides, in
pertinent part, that the Dept. of HRS has the duty to:
(g) Adopt, promulgate, repeal, and amend rules
consistent with law regulating;
*
3. Sanitary practices relating to drinking water made
accessible to the public [and] ... the disposal of excreta,
sewage, or other wastes....
Sec. 381.272, F.S., provides, in pertinent part that:
(7) Notwithstanding any other provisions of this chapter,
residential subdivisions with a public watersystem may
utilize individual sewage disposal facilities, provided there
are no more than four lots per acre and that all distance and
setback, soil condition, water table elevation, and other
related requirements which are generally applicable to the
use of individual sewage disposal systems are met.
(Emphasis added).
It is well settled that "[n] o agency has inherent rulemaking
authority ...." Sec. 120.54(14), F.S. Instead, agencies are
limited in the exercise of their quasi-legislative rule-adoption
powers to those areas authorized by statute. In construing
a statute to determine the scope of agency rulemaking authority
the basic rule of statutory construction that words of common
usage when used in an enactment should be used in their plaip


(and ordinary sense obtains. See, Freedman v. State Bd. of
Accountancy, 370 So.2d 1168 (Fla. 4th DCA 1979) In this
connection, the term "acre" is customarily defined as "a
measure of land containing... 4,840 square yards." Webster's
New Twentieth Centry Dictionary, 18 (Second Edition, 1979).
This definition is consistent with Respondent's own definition
of "acre" in Rule 10D-6.22(3), F.A.C., which defines "acre"
as 43,560 square feet of land."
It is well settled that "... an administrative agency may not
adopt a rule which conflicts with or modifies an existing statute.
DOT v. Pan American Const. Co., 338 So.2d 1291, 1293 (Fla.


3/8/82


1st DCA 1976). Challenged Rule 10D-6.23(3)(g), F.A.C.,
in effect, redefines the term "acre" as that term applies to
the use of individual sewage disposal systems, by requiring
a deduction of land devoted to certain uses from the
accepted definition of an "acre", thereby impermissibly
modifying the provisions of Sec. 381.272(7), F.S., by adding
an additional criterion to be met by a permit applicant.
See, Dept. of HRS v. McTigue, 387 So.2d 454, 456 (Fla.
1st DCA 1980).

Respondent's argument that adoption of the challenged
rule is authorized under the more general authority of
Sec. 381.031(1)(g)3, F.S., is without merit, since, as
indicated by the Court in McTigue, supra:
... where there is in the same statute a specific provision,
and also a general one that in its most comprehensive
sense would include the matters imbraced in the former,
the particular provisions will nevertheless prevail and the
general provision must be taken to affect only such
cases as are not within the terms of the particular
provision. Id.
Accordingly, it is determined as a matter of law that
Rule 10D-6.23(3)(g), F.S., constitutes an invalid exercise
of delegated legislative authority by virtue of respondent's-
failure to provide an adequate statement of economic impact,
in violation of Sec. 120.54(2), F.S., and further because
the challenged rule impermissibly modifies the provisions of
Sec. 381.272(7), F.S.
DONE AND ORDERED this 16th day of February,
1981, in Tallahassee, Florida.
s/ William E. Williams, Hearing Officer, DOAH.


DIVISION OF ADMINISTRATIVE HEARINGS.
Rule-Validity-Dept. of General Services-Bidder
Certification Requirement Constitute Unpromulgated
Rule

DATA SPECIALTIES MART, a Division of S. F. Holdings, Inc.,
Petitioner, v. FLORIDA DEPARTMENT OF GENERAL
SERVICES, Respondent. Case No. 81-3186R.

FINAL ORDER
This matter came on for hearing in Tallahassee, Florida,
before the DOAH and its duly appointed Hearing Officer,
R. T. Carpenter on January 6, 1982. The parties were
represented by: Dean Bunch, Esq., Ervin, Varn, Jacobs,
Odom and Kitchen, P. O. Box 1170, Tallahassee, Fl. 32302,
For Petitioner; William P. Beck, Esq., Dept of General
Services, 457 Larson Bldg., Tallahassee, Fl. 32301, For
Respondent.
This matter arose on a petition for determination of
rule validity under Sec. 120.56, F.S. The issue presented
for determination is whether or not Respondent's bidder
certification requirement is an unpromulgated rule and
therefore invalid. Petitioner has also protested Respond-
ent's rejection of its bid in a related proceeding under
Subsection 120.57(1), F.S. (DOAH Case No. 81-3048).
The parties submitted proposed findings of fact and
conclusions of law. To the extent the proposed findings
have not been adopted or otherwise incorporated herein,
they have been specifically rejected as erroneous,


~cl---~-


I







3/8/82


irrelevant or not material to the decision.
FINDINGS OF FACT: Petitioner S. F. Holdings, Inc., is a
Florida corporation, charter number 637983. Data Specialties
Mart is an unincorporated division of S. F. Holdings, Inc., and
has been assigned Dept. of General Services vendor number
00417.
Respondent issued an Invitation to Bid on electronic data
processing cards (Bid number 123-395-98-C Rebid), with a bid
opening date of November 10, 1981. Respondent rejected
Petitioner's bid principally because Petitioner was not capable
of manufacturing the commodity on the bid opening date.
Instructions contained in Respondent's Invitation to Bid
include the following:
CERTIFICATION: Bidder must submit certification that
he: [sic] complies with one of the following:
(1) Has in operation a factory adequate for and devoted
to the manufacturer [sic] of the commodity he proposes.
(2) If bid is submitted by other than the manufacturer,
a certificate executed by the manufacturer shall be required
stating that the vendor is an authorized agent of the
manufacturer.
The above provision is contained in all Invitations to Bid
issued on printing contracts. This language was not shown to
have been adopted pursuant to Sec. 120.54, F.S.
By letter dated November 9, 1981, Petitioner sought to
comply with the above certification requirement. The letter
attached to Petitioner's bid (Exhibit 6), states in part that
"The cards will be produced through our lakeland, Florida,
manufacturing facilities (formally [sic] known as National
Electronics Computing Supplies, Inc.)."
Respondent's purchasing agent investigated ownership of
the plant and determined that it was not owned by Petitioner
as of November 10, 1981, as represented. Petitioner's president
believed he would obtain the plant at a November 16 bankrup-
tcy proceeding and thus made the ownership claim by letter
dated November 9. Since Petitioner did not, in fact, own the
plant on November 10, Respondent's rejection of the bid
was consistent with the requirement that bidders be qualified
as of the bid opening date.
CONCLUSIONS OF LAW: The DOAH has jurisdiction over
the parties and subject matter of this proceeding. Petitioner is
substantially affected by Respondent's bidder qualification
procedures. Sec. 120.56, F.S.
In Sec. 120.56 proceedings, the burden is upon one who
attacks an agency rule to show that it is an invalid exercise of
delegated legislative authority. See Agrico Chemical Co. v.
State, 365 So.2d 759, 763 (Fla. 1st DCA 1979). A rule not
adopted in accordance with the rule-making procedures pre-
scribed by Sec. 120.54 is invalid. Dept. of Environmental
Regulation v. Leon County, 344 So.2d 297, 299 (Fla. 1st DCA
1977).
Subsection 120.52(14), F.S., defines "Rule" as
"[E] ach agency statement of general applicability that
implements, interprets, or prescribes law or policy or
describes the organization, procedure, or practice require-
ments of an agency and includes any form which imposes any
requirement or solicits any information not specifically
required by statute or by an existing rule. .. ."
Petitioner challenges that section of the Invitation to Bid
which requires the bidder to have "in operation a factory
adequate for and devoted to the manufacture of the


465-A


commodity he proposes." Petitioner contends that the require-
ment for an in-place manufacturing facility at the time of
bid opening is improperly established by this non-rule provi-
sion.
Subsection 283.10(1), F.S., provides in part:
"No general contract shall be let to cover the printing
designated as "class B", but each job coming under this
classification shall be let separately under regulations
adopted by the Division of Purchasing of the Dept. of
General Services to the lowest responsible bidder who
shall manufacture the same in accordance with s. 283.03."
Subsection 13A-1.13(5), F.A.C., provides:
"New Bidders Any printing firm desiring to bid on State
agencies' requirements of printing shall first file a request
with the Division of Purchasing, who shall investigate
the request to determine that the firm's resources,
service reputation, manufacturing capability, and
experience are adequate for performing on contract with
the State to supply the printing and services in the classi-
fication on which it submits bids."
The above statute and rule require the prospective
bidder to possess a manufacturing capability as a condition
precedent to bidding. Since no bidding was permitted
after November 10, 1981, all bidders necessarily had to be
qualified by that date. Petitioner had no manufacturing
capability whatsoever on the bid opening date, and thus
failed to qualify under existing provisions of law.
The challenged section of the Invitation to Bid does.
however,-mre le -el.nitinn of a "Rle" n nrnvided ]e i
Subsection 20 52(141 F.S.. quoted above. The certifica-
tion requirement is an "agency statement of general
applicability" to printing contractors. The certification
procedure establishes requirements for the submission of
"information not specifically required by statute or by an
existing rule." Further, the certification procedure both
"interprets" and "implements" Subsection 283.10(1), F.S..
by stating how the bidder will meet statutory mandates
and how he will inform the agency of his manufacturing
capability. Finally, the certification requirement establishes
a procedure for the qualifying of vendors/agents.
Based on the findings of fact and conclusions of law
recited herein, it is
ORDERED: Res ondent'I R1djfr Q'&t'i.',nra q Jr-
ment as set forth its Intation Bd institutes
xunpromulgated rule and is there invalid
-DONE and ORDERED this 11th day of February, 1982,
in Tallahassee, Florida.
/s/ R. T. Carpenter, Hearing Officer, DOAH.


BOARD OF CHIROPRACTIC. Chiropractor-
License-Fine-Stipulation-Misleading Advertising.

IN RE: JOSEPH A. BUTTACAVOLI, D.C, License No. 3335,
Respondent. Case No. 0015421.
FINAL ORDER
THIS MATTER came before the Board pursuant to sec.
120.57(3), F.S., on Thursday, December, 3, 1981, in Tampa,
Florida, for consideration of the proposed Stipulation (a copy
of which is attached hereto) in the case of DPR, Bd. of


ADMINISTRATIVE ORDERS


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