State, Department of Financial Services v. Peter R. Brown Construction, Inc.

108 So. 3d 723, 2013 WL 764965, 2013 Fla. App. LEXIS 3325
CourtDistrict Court of Appeal of Florida
DecidedMarch 1, 2013
DocketNo. 1D12-3426
StatusPublished
Cited by3 cases

This text of 108 So. 3d 723 (State, Department of Financial Services v. Peter R. Brown Construction, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State, Department of Financial Services v. Peter R. Brown Construction, Inc., 108 So. 3d 723, 2013 WL 764965, 2013 Fla. App. LEXIS 3325 (Fla. Ct. App. 2013).

Opinion

PER CURIAM.

Appellant challenges a final agency decision determining that Florida Administrative Code Rule 69140.103 is an invalid exercise of delegated legislative authority in violation of section 120.51(8)(b), & (d), Florida Statutes. We affirm.1

[725]*725Appellee was the general contractor for construction of the First District Court of Appeal building under a contract with the Department of Management Services (“the Department”). Pursuant to a change order, Appellee subcontracted with Signature Art Gallery (“Signature”) for acquisition, fabrication, preparation, and installation of all artwork in the courthouse. The subcontract price was $857,500, but the change order included an additional amount for Appellee’s management and supervision services. Signature completed the work and billed Appellee who submitted invoices for payment to the Department. In turn, the Department submitted payment requests to Appellant. Appellant made partial payment but denied the remainder, contending that the amount billed by Signature exceeded the statutory limit of $100,000 for art in public buildings, pursuant to section 255.043, Florida Statutes (2012).2 The Department resubmitted the invoice for payment. Appellant again denied payment of the remaining Signature invoices, stating, inter alia, that rule 691-40.103(6) prohibited expenditures of state funds for decorative items such as framed photographs. Rule 691 — 40.103 provides:

691-40.103. Restriction of Expenditures. Expenditures from state funds for items as listed below are prohibited unless “expressly provided by law.” (See Attorney General opinion 71-28):
(1) Congratulatory telegrams;
(2) Flowers and/or telegraphic condolences;
(3) Presentment of plaques for outstanding service;
(4) Entertainment for visiting dignitaries;
(5) Refreshments such as coffee and doughnuts; and
(6) Decorative items (globes, statues, potted plants, picture frames, etc.).

Signature, thereafter, filed suit for payment in the Leon County Circuit Court (case no. 2011-CA-001706) against Appel-lee, the Department, and Appellant. Appellant raised rule 691^10.103 as an affirmative defense to Signature’s claims. While Signature’s lawsuit was pending, Appellee filed an administrative challenge to rule 691-40.103. Appellee alleged that the rule was an invalid exercise of delegated legislative authority pursuant to section 120.52(8), Florida Statutes. Appellant sought dismissal of the rule challenge on the basis that Appellee lacked standing. The administrative law judge (“ALJ”) disagreed and denied the motion to dismiss. After considering the submissions of the parties, the ALJ entered a final order in favor of Appellee. The ALJ determined that “rule 691-40.103 constitutes an invalid exercise of delegated legislative authority in violation of subsection 120.52(8)(b) and (d).”

Appellant asserts as its threshold issue that Appellee lacked standing to initiate the rule challenge. We disagree. Section 120.56(l)(a), Florida Statutes (2012), provides that “[a]ny person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.” We agree [726]*726with the ALJ’s reasoning that Appellee has established standing under the statute. It was directly affected by the application of the rule in that its payment request, which included its overhead and supervision fee, was denied, in part, based on Appellant’s interpretation and reliance on the rule. See Lanoue v. Fla. Dep’t of Law Enf., 751 So.2d 94, 98-99 (Fla. 1st DCA 1999) (holding that ALJ erred in determining party lacked standing).

Addressing the merits, we conclude that the ALJ was correct in her conclusion that the rule impermissibly exceeded the authority granted under the enabling statute. An agency may only adopt rules that implement or interpret specific powers and duties granted by an enabling statute. Without an explicit power or duty identified in the enabling statute, the rule is an invalid exercise of delegated legislative authority. Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So.2d 594, 599 (Fla. 1st DCA 2000); see also § 120.52(17), Florida Statutes (2012) (defining “rulemaking authority”).

Section 120.52(8), Florida Statutes (2012), defines “invalid exercise of delegated legislative authority,” in pertinent part, as

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:
[[Image here]]
(b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)l.;
[[Image here]]
(d) The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;
[[Image here]]
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 interpret 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 agency’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.

Rule 691-40.103 prohibits expenditures from state funds, unless expressly provided by law, for enumerated items, including “(6) Decorative items (globes, statues, potted plants, picture frames, etc.).” According to the rule, it was adopted in 1975, amended in 1995, and was created under the authority of section 17.29, Florida Statutes, which provides:

17.29. Authority to prescribe rules.— The Chief Financial Officer may adopt rules pursuant to ss. 120.536(1) and 120.54 to implement this chapter and the duties assigned by statute or the State Constitution. Such rules may include, but are not limited to, the following: (1) Procedures or policies relating to the processing of payments from salaries, other personal services, or any other applicable appropriation.
[727]*727(2) Procedures for processing inter-agency and intraagency payments that do not require the issuance of a state warrant.
(3) Procedures or policies requiring that payments made by the state for goods, services, or anything of value be made by electronic means, including, but not limited to, debit cards, credit cards, or electronic funds transfers.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

S. Baptist Hosp. of Fla. v. Agency for Health Care Admin.
270 So. 3d 488 (District Court of Appeal of Florida, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
108 So. 3d 723, 2013 WL 764965, 2013 Fla. App. LEXIS 3325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-department-of-financial-services-v-peter-r-brown-construction-fladistctapp-2013.