Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.
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 ......!!
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
Ombudsman; appointment; administration.--
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.
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!
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
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
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.)
the Ombudsman's 1st Quarterly Report:
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
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
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
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
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
We can point out many examples of
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
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?
new secretary and staff in executive positions and/or a new governor?
Legal Opinion - AGO 74-133
Number: AGO 74-133
Date: April 29, 1974
Subject: Govermental reorganization and
RE: GOVERNMENTAL REORGANIZATION--POWERS OF
DEPARTMENT HEADS OR DEPARTMENT SECRETARIES
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
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
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.
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
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
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
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