An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc. 

June 20, 2006

Over the last few years we have seen Florida Department of Business and Professional Regulation secretaries come and go, but the many problems within the department continued --and got even worse.  In retrospect, it seems that Governor Jeb Bush really had not been dealt a lucky hand (or advisors) when picking all the secretaries we saw during his tenure.  Maybe it would have been better to pick somebody with the necessary knowledge and willingness to do the job instead of awarding the job to somebody who earned some brownie points elsewhere!  In my opinion, one secretary could have done the job, if he/she had been willing to overhaul the Division of Florida Land Sales, Condominiums, and Mobile Homes, since the Division continues to be the actual root of all problems. But ......!!

Secretary Diane Carr left under heavy criticism in August 2005.  When Simone Marstiller assumed the position, many of Florida's citizens had high hopes that her politically charged appointment would turn around the department and create the necessary REGULATION, as intended by the legislature.


But the high hopes turned quickly into serious disappointment, when Florida's citizens realized that Marstiller's priority was more attuned to damage control than to improvement of the often-criticized department. Together with her deputy Andy Edwards, Marstiller concentrated on silencing critics -- instead of doing her job.  We saw campaigns against everybody who tried to point out the shortcomings

718.5011  Ombudsman; appointment; administration.--

(1)  There is created an Office of the Condominium Ombudsman, to be located for administrative purposes within the Division of Florida Land Sales, Condominiums, and Mobile Homes. The functions of the office shall be funded by the Division of Florida Land Sales, Condominiums, and Mobile Homes Trust Fund. The ombudsman shall be a bureau chief of the division, and the office shall be set within the division in the same manner as any other bureau is staffed and funded.

and incompetence of the department. OPPAGA had made it very clear in its report published in April of 2005 that especially the Division of Land Sales, Condominiums, and Mobile Homes needed serious changes in order to fulfill its duties, as envisioned by the Florida legislature.  Yet no changes ever happened!  Governor Bush just appointed a new secretary – then business as usual!

While Secretary Carr had considered the Office of the Condo Ombudsman an unwanted stepchild and tried to ignore its existence, Secretary Marstiller openly worked against the condo ombudsman's office and sabotaged his efforts to help condo owners all over Florida.

Despite being an attorney, Marstiller's biggest handicap is seemingly the fact that she has a problem reading statutes and legal opinions, such as the one from the office of the Attorney General. The Florida statutes -- enacted by the Florida legislature in 2004 -- clearly state that the Office of the Condominium Ombudsman is located for administrative purposes -- ONLY -- within the Division of Florida Land Sales, Condominiums, and Mobile Homes.

 “Administrative purposes” doesn't mean that the DBPR secretary can order around the ombudsman or his staff, telling them how to do the job or telling the ombudsman to tone down his quarterly reports because the truth hurts the Department.  (Yes, Marstiller really exceeded her authority when she did that.) 

Remember the Ombudsman's 1st Quarterly Report:

"The Ombudsman’s Office is required by Section 718.5012(3) of the Florida Statutes to make recommendations appropriate for legislation relative to Division procedures, rules, jurisdiction, personnel, and functions. The Ombudsman’s Office from its own experience confirms the findings of the recent report of OPPAGA that showed that the Division’s procedures, rules, personnel and functions are inefficient and ineffective. The Ombudsman’s Office has reviewed the Condominium Administrative Rules (Chapters 61B-15 through 61B-25, Florida Administrative Code) promulgated by the Division to interpret, enforce, and implement the Condominium Act. It is the opinion of the Office that those rules and procedures are not only confusing, obsolete and impractical, but also ineffective, inefficient, antiquated and in serious need of complete revision. The Office recommends that a committee comprised of persons knowledgeable in condominium law, knowledgeable about the problems associated with condominium fiscal and general mismanagement, and knowledgeable about the practical operation of condominium associations and corporations be established to rewrite those administrative rules. "

Harassment started from Day One after Marstiller's take-over.   Even Mike Cochran, the "Division Chief" whose division has more problems than a street dog has fleas, sent orders to Dr. Rizzo telling him what to do and how to work. And even after the Division misplaced -- or plainly lost -- the check that was sent by Donna Berger to pay for the public records request regarding election monitors, Cochran tried to order Dr. Rizzo to mail the public records, even though the money had not yet been received!   Bitter irony:  Blame for the untimely delivery of public records was placed on DR. RIZZO!  How about blaming the real guilty parties?  It seems very common that documents and checks get lost, a frequent complaint from condo owners!

If the statutes "failed to impress" Marstiller, she should have read the Advisory Legal Opinion -- AGO 74-133 -- from the Office of the Attorney General. It makes it very clear that her authority over the Office of the Condominium Ombudsman stops at "administrative."  But that seems to be hard to understand if it's necessary to silence critics!  We often see the same problem with association boards that assume authority they don't have. That leaves owners in a difficult position, because the department head supposed to cure this disease is suffering from it as well!

Many people seem to forget that the Office of the Condominium Ombudsman was created by the Florida legislature because it was obvious that the Division wasn't doing its job.  Legislators were sick and tired of hearing complaints from constituents about the DBPR failing in its duties. Hearings by the House Committee on Condominium Governance in 2003 and 2004 showed clearly that many condo owners were fed up with the incompetence of the Division.  Most of the complaints this committee heard were not about the statutes or the association boards, but about the frustrating behavior of the DBPR. 

In February 2005 at the first public hearings of the Advisory Council on Condominiums, when citizens still naïvely believed that the specialized attorneys on the Council would be interested in their presentations, we heard massive complaints about the total failure of the DBPR.  But that changed quickly when owners realized that these attorneys on the Council were not listening and had their own agendas in mind.  Seeing that it was hopeless, owners with justifiable complaints just didn't bother to show up any more. This year we haven't even seen a report or minutes of the Council published. Actually, the DBPR is responsible for the administrative part of this Council.  What does it tell you?  DBPR can't get anything right!

This is not only my opinion -- or the opinion of many Florida's citizens, not only condo owners -- but as well the opinion of OPPAGA (Office of Program Policy Analysis and Government Accountability). We have seen many OPPAGA reports criticizing the way the DBPR is doing business. 

We have realized over the years that many legislators and government officials are not really interested in the opinion of their constituents, but they should minimum pay attention what OPPAGA has to say.   OPPAGA was actually created by the legislature as a watchdog for government agencies and programs -- and OPPAGA does an excellent job preparing good reports!

But maybe only the citizens are reading these reports?

We can point out many examples of incompetence: 

  • The DBPR Arbitration/Mediation Section under the leadership of Karl Scheuerman is always busy trying to create new rules, some even contradicting Florida statutes as we have seen -- but who really cares? The rules and guidelines are obviously only created to require owners to follow these rules, while specialized attorneys can plainly ignore them -- knowing that the DBPR will do absolutely nothing to stop them. 

  • Mandatory recall arbitration as required by Florida statutes? Oh heck -- a nice juicy lawsuit works a lot better to create legal fees, especially if the recall was done according to the DBPR guidelines and the chances for the sitting board to lose in arbitration are big. Just call the whole attempt frivolous and make up your own rules, the DBPR doesn't want to be bothered anyway! Imagine they would have to make a ruling? Why do we have rules and regulations if the government agency supposed to enforce these statutes and rules plainly ignores its duties and leave condo owners open to frivolous lawsuits?

It's a sad state of affairs when taxpayers are left unprotected, while paper-pushing government employees, who fail to do their jobs, are awarded with paychecks paid by taxpayers' money!

No wonder that many critics call Florida “FFF” -- Fraud Friendly Florida!  With business and professions widely unregulated, our state is a haven for scam artists -- as we all see on a daily basis.

But DBPR Secretary Marstiller spends more time silencing critics than doing her job! Suggestion:  Let’s see a “clean house” at the DBPR…

What will it take to finally force the department employees to do their jobs competently -- the jobs we taxpayers pay them to do?

A new secretary and staff in executive positions and/or a new governor?

Advisory Legal Opinion - AGO 74-133

Number: AGO 74-133
Date: April 29, 1974
Subject: Govermental reorganization and department heads


To: Louis H. Ritter, Secretary, Department of Professional and Occupational Regulation, Tallahassee

Prepared by: Robert Woolfork, Assistant Attorney General


1. What authority is given a department head or secretary under a type two transfer?

2. Can the secretary of the Department of Professional and Occupational Regulation act as final approving authority of an individual to be employed as executive director (coordinator) for each of the examining and licensing boards?


The authority of a department head under a type two transfer is limited to those ministerial services delineated in ss. 20.06 and 20.30, F. S. The authority of the various licensing and examining boards has not been repealed, altered, limited, or divested by the Governmental Reorganization Act or any other statute. Appointment, employment, and compensation of the executive director and other staff personnel are vested in the respective licensing boards and the secretary of the Department of Professional and Occupational Regulation has no statutory authority to finally approve the appointment or employment of an executive director of a licensing and examining board assigned to that department.

A type two transfer is one of the methods used by the legislature in reorganizing the executive branch of state government by transferring specified agencies, programs, and functions to the departments, commissions, or offices created or referred to in the Governmental Reorganization Act of 1969, Ch. 20, F. S.

Chapter 69-106, Laws of Florida [s. 20.06(2), F. S.], defines a type two transfer, in part, as:

". . . the assigning to any department of an examining and licensing board which has as a function the setting of standards for, or the regulation of, an occupation or the examination, licensing or certifying of practitioners of such occupation. . . ."

The above statute also delineates the authority of the receiving and transferring agency as follows:

"For any agency assigned a type two transfer, the collection of license fees and other revenues, payroll, procurement, and related administrative functions shall be exercised by the head of the department to which the board is assigned. Any agency assigned by a type two transfer shall independently exercise the other powers, duties, and functions prescribed by law, including but not limited to rule making, licensing, regulation, and enforcement. . . ." (Emphasis supplied.)

It is a general principle of statutory construction that the mention of one thing implies the exclusion of another. This principle is known as expressio unius est exclusio alterius, Peeples v. State, 35 So. 223 (Fla. 1903); Dobbs v. Sea Isle Hotel, 56 So.2d 341 (Fla. 1952). Hence, when a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned. Ideal Farms Drainage District v. Certain Lands, 19 So.2d 234 (Fla. 1944). Section 20.06(2), F. S., clearly delineates those functions designated to the department head as being "collection of license fees and other revenues, payroll, and procurement." Therefore, based on the above doctrine of statutory construction, the exercise of authority in other areas not designated must be construed as being excluded from authority of the department head.

The specific enumeration of duties in s. 20.06(2), F. S., is followed by the terminology "and related administrative functions shall be exercised by the department head to which the board is assigned." Such language must be construed in the light of statutory construction. Ejusdem generis is a familiar aid to statutory construction. This principle states where the enumeration of specific things is followed by a more general word or phrase, the general phrase is construed to refer to a thing of the same kind or species as included within the preceding limiting and more confining terms. State ex rel. Wedgworth Farms, Inc. v. Thompson, 101 So.2d 381 (Fla. 1958). Similarly, in a statute where general words follow a designation of particular subjects or classes of persons, the meaning of the general words will ordinarily be presumed to be, and construed as, restricted by the particular designation, and as including only things or persons of the same kind, class, character, or nature as those specifically enumerated. Van Pelt v. Hilliard, 78 So. 693 (Fla. 1918); LRA 1918E639; Children's Bootery v. Sutker, 107 So. 345 (Fla. 1926).

Furthermore, a statute granting authority to public officers to proceed in a particular way or only upon specific conditions implies the duty not to proceed in any manner than that which is authorized by law. First National Bank of Key West v. Filer, et al., 145 So. 204 (Fla. 1933); White v. Crandon, et al., 156 So. 303 (Fla. 1934); 67 C.J.S. Officers ss. 103 and 108. It does not appear that the appointment or employment of staff personnel falls within the classifications enumerated in the statute. Therefore, the appointment or employment of personnel staff does not appear to be within the authority of the department head in exercising his authority over related administrative functions.

The language noted in s. 20.06(2), F. S., clearly delineates the authority of the department head. This authority is limited to the collection of fees and other revenues, payroll, procurement, and related administrative functions. The legislature has given licensing and examining boards unfettered control and supervision in regulating their activities. This can be gleaned from the fact that each examining and licensing board may provide for its own investigative and legal services, prepare its examinations unless otherwise provided by law, and continue to have supervision and control of such funds collected in trust in connection with its licensing, certifying, and related activities. Section 20.06(2), F.S. Further, mandatory language was used in delegating authority to transferring agencies (examining and licensing) in implementing their authority -- "shall independently exercise the other powers, duties and functions as prescribed by law . . . ." Section 20.06 (2).

Therefore, I come to the conclusion that the authority of the department head under a type two transfer is limited to those ministerial services delineated in s. 20.06(2), F. S.

As to the second question, s. 20.30(9) and (10), F. S., designates those examining and licensing boards assigned to the Divisions of Professions and Occupations, respectively, in the Department of Professional and Occupational Regulation by a type two transfer.

Each statute creating a licensing and examining board transferred to the Department of Professional and Occupational Regulation has a provision regarding the duties, powers, compensation, hiring, or appointment of staff personnel. The basic tenet running through those statutes is that each examining and licensing board has the authority to appoint or employ staff personnel, including but not limited to executive directors, secretaries-treasurers, administrative assistants, and secretarial staff as may assist the board in doing and performing all its powers, duties, and obligations. These statutes also prescribe and vest varying degrees of authority and responsibilities in administrative personnel for carrying out the various activities of the boards.

The authority of the department head must be viewed in conjunction with the enabling statutes of the respective boards and commissions assigned under such transfer. The respective enabling acts of the various boards either provide the discretion ("may") to appoint or employ executive directors and other staff personnel or they direct ("shall" or "will") the boards to do so (e.g., ss. 458.041, 459.051, 465.041, 466.08, 470.02, 471.13, 471.14, 473.06, 476.09, 477.20, and 478.081, F. S.) and to discharge at the boards' pleasure such executive directors or executive secretaries.

Section 20.06(2), F. S., does not purport to expressly amend or repeal any of the enabling acts or any part or section. The question whether s. 20.06(2) effects an implied repeal of the existing enabling statutes is one of legislative intention in the enactment of the alleged repealing act. State v. Gadsden County, 58 So. 22 (Fla. 1912), State ex rel. Worley v. Lee, 168 So. 809 (Fla. 1936), State ex rel. Myers v. Cone, 190 So. 698 (Fla. 1939), Re Wade, 7 So.2d 797 (Fla. 1942).

The law does not favor repeals by implication, State v. Sarasota Co., 74 So.2d 542 (Fla. 1954). In the absence of a positive repugnancy between two statutes, clear legislative intention must be present before a repeal will be implied. The mere fact that two statutes affect the same subject matter, when it is not clear that the latter was designed to prescribe the only governing rules, is not sufficient, State ex rel. Gonzalez v. Palmes, 3 So. 171 (Fla. 1887); New Smyrna v. Mathewson, 152 So. 706 (Fla. 1934); see AGO's 071-395 and 073-331.

Amendments by implication are also not favored and will not be upheld in doubtful cases. Miami Water Works Local #654 v. City of Miami, 26 So.2d 194 (Fla. 1946); 165 A.L.R. 967. Jet Air Freight v. Jet Air Freight Delivery, Inc., 264 So.2d 35 (1972).

A later statute will not be held to repeal a former one unless there is positive repugnancy between them or the latter was clearly intended to prescribe the only rule which should govern subject treated, City of New Smyrna, supra.

Although s. 20.06(2), F. S., would be the latest expression of legislative will, there appears to be no inconsistency or repugnancy between s. 20.06(2) and the pre-existing enabling statutes of the various examining and licensing boards that could be construed as repealing or modifying any part or section by implication. In fact, the authority of the department head under s. 20.06(2) is limited to certain prescribed functions, and pursuant to our discussion of the rule expressio unius est exclusio alterius in question 1, the department head is precluded from exercising any authority not specifically within the authority enumerated. The invariable rule of construction regarding repealing statutes by implication is that earlier acts remain in force unless the two are manifestly inconsistent with and repugnant to each other, Sanders v. Howell, 74 So. 802 (Fla. 1917).

Implicit in your letter was the question of your authority under the "procurement" provision of s. 20.06(2), F. S., to approve or disapprove the appointment or employment of executive directors or secretaries for the various licensing and examining boards of your department.

Procurement is defined to be the act of procuring, obtaining, bringing about, or effecting, etc., 34 Words and Phrases Procurement. The term means and is the act of obtaining or acquiring or bringing about something for or to someone else and involves the principle of agency, i.e., acting as an agent of another to obtain or bring about a commodity, service, or result for the advantage or benefit of the principal. As used in this context, procurement might be an act of recruiting personnel for the licensing boards. However, the approval or disapproval of the individuals so obtained or recruited for the job and the act of hiring, paying, controlling, and discharging such individual so procured lie with the principal and not the agent, unless the principal has delegated such authority to his agent or procurer. Here, any such delegation of power has to be made by the legislature to the department by statute.

In the context in which procurement is used in s. 20.06(2), F. S., it appears that it is used in the sense of the department obtaining supplies and materials, bringing landlords and boards together on leases and various other contracts, or finding such leases and contracts for the boards. This would be a part of the department's function of ministerially servicing and supporting the boards, not actually exercising any of the powers, duties, and functions of the boards, and not vetoing any of the official actions of such boards authorized or required by law.

Thus, if the department head recruited executive directors or secretaries for the various boards, he would have no authority to approve or disapprove of the appointment or employment of such person since this is the exclusive authority of the various boards. Therefore, the procurement provision of s. 20.06, F. S., must be construed as providing no authority for the department head's final approval of the appointment or employment of the executive directors or other staff personnel of the respective examining and licensing boards.

In a related question requested by a previous secretary of the Department of Professional and Occupational Regulation regarding the authority of the secretary to review and evaluate the performance of executive directors of the examining and licensing boards, my predecessor determined:

". . . if the agency has the right and the duty to spend its funds which have been retained by the agency pursuant to its budget, then the agency would have the right and the duty to employ and discharge employees of that agency and the Secretary of the Department, having no such authority over agency employees, would consequently have no authority either to review or evaluate the performance of the executive directors of the examining and licensing boards. (Attorney General Opinion 070-5.)

Section 215.37, F. S. (1972 Supp.), in part provides that each examining and licensing board shall be financed solely and individually from income accruing to it from fees collected by the Bureau of Records Administration of the department and appropriates all such moneys to each of such licensing boards; and it further provides that all salaries and expenses shall be paid as budgeted after the approval thereof by the Department of Administration.

In s. 20.30, F. S., creating the Department of Professional and Occupational Regulation, it is clear that the legislature intended to narrowly proscribe departmental activities. The decision to place the Division of Professions and the Division of Occupations directly under the department head rather than independent division directors; the discretionary authority given licensing and examining boards in accepting or utilizing certain services provided by the department; and the limited administrative functions given the department indicate the legislative desire to allow agencies within the department wide latitude in carrying out their statutory powers, duties, functions, and responsibilities independently of the department.

It appears to be clear legislative intent that the authority of the secretary of the Department of Professional and Occupational Regulation be limited to the issuance of licenses, collection of fees, establishment of a uniform renewal license form for all boards and commissions, establishment of renewal and delinquency periods with the concurrence of the boards and commissions affected, and maintenance of nonconfidential records. Section 1, Ch. 73-97, Laws of Florida [s. 20.30(5), F. S.].

Applying the principle of expressio unius est exclusio alterius, the department head would be precluded from exercising authority over other administrative functions, including the approval or disapproval of executive staff because this authority is specifically enumerated by statute. If a particular power is not expressly conferred or cannot be fairly implied from powers expressly conferred, it should not be exercised. State v. Fowler, 105 So. 733 (Fla. 1925); Ideal Farms, supra; City of Pensacola v. Fillingim, 46 So.2d 876 (Fla. 1958); AGO's 073-374, 074-37 and 074-49. Moreover, statutory authority given to administrative officers must be exercised in accordance with the requirements of controlling provisions and principles of law. Edgerton v. International Company, Inc., 89 So.2d 488 (Fla. 1956).

Based on the foregoing discussion, I come to the conclusion that s. 20.06(2), F. S., has not expressly or impliedly repealed, altered, or modified the enabling statutes of the respective licensing and examining boards within the Department of Professional and Occupational Regulation. Therefore, the authority to appoint, employ, and compensate the executive directors and other staff personnel for the respective licensing and examining boards in said department is vested in such licensing and examining boards, and the secretary of the department, having no authority over the personnel of such agencies, has no authority to finally approve the appointment or employment of an executive director of a licensing or examining board.