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

January 12, 2006


In earlier articles we have made legislators and citizens aware of what the DBPR is planning ...

     …To change the rules to make an election monitor ineffective!

The DBPR is clearly trying to overstep its statutory authority!

The letter below, which I received from the Joint Administrative Procedures Committee, speaks for itself. Why are resources and time wasted with attempts to change something that really works to the benefit of Florida's condo owners?  In all reality, it would effectively change the Florida Statutes FS 718!

There are lots of changes of rules and procedures necessary -- within the Division of Florida Land Sales, Condominiums and Mobile Homes. This Division needs plenty of improvement -- considering all the complaints I am hearing.  Those Division staffers really should be busy working on their own problems!

I would please ask the DBPR to refrain from trying to change the legislative intent of the Florida Statutes that have already been implemented by consumer-friendly legislators!

Representative Ellyn Setnor Bogdanoff, Chair 
Senator Michael S. 'Mike" Bennett, Vice-Chair 
Senator Nancy Argenziano
Senator Larcenia J. Bullard
Representative Susan IC Goldstein 
Representative Matthew J. "Matt" Meadows
Room 120, Holland Building
Tallahassee, Florida 32399-1300
Telephone (850) 488-9110
January 6, 2006

Mr. Jan Bergemann, President

Cyber Citizens for Justice, Inc.

1156 Tall Oaks Road

DeLand, Florida 32720-1225


Re:      DBPR Rulemaking USURPS Florida Statutes

Dear Mr. Bergemann:

Representative Bogdanoff, as Chair of the Joint Administrative Procedures Committee, forwarded your e-mail entitled "DBPR Rulemaking USURPS Florida Statutes" and requested that we examine DBPR's legislative authority.  Representative Bogdanoff is very interested in legislation and rules affecting condominiums and in ensuring that administrative rules do not exceed their statutory authority.


The e-mail message states that §718.5012(9), Florida Statutes, requires an election monitor to attend meetings of unit owners and conduct the election of directors, and DBPR is proposing a rule to eliminate the requirement of attending and conducting the election of directors.  The version of rule 6 I B-23.00215 at CCFJ's website under the heading "-DBPR Rulemaking USURPS Florida Statutes" is consistent with the above statements.


State agencies are required to follow the rulemaking provisions in the Administrative Procedure Act in chapter 120, Florida Statutes.  Section 120.54, Florida Statutes, is entitled "Rulemaking" and contains requirements for a rule development notice and a notice of rulemaking which must be published in the Florida Administrative Weekly.


The rules of state agencies are maintained in the Florida Administrative Code.  Agencies cannot amend their rules without going through the process required by chapter 120, Florida Statutes. DBPR has published a notice of rule development for rule 61B-23.00215 in the January 6, 2006, Florida Administrative Weekly, Volume 32, Number I at page 1. According to the notice, a rule development workshop is scheduled for January 23, 2006, at 10:00 a.m. The notice does not contain the text of the rule amendment but does provide a website address where a copy of the proposed text is available.


The practice of the Joint Administrative Procedures Committee under § 120.545, Florida Statutes, is to review proposed rules after the notice of rulemaking is published in the Florida Administrative Weekly.  In many instances rule amendment proposals are changed after the rule development notice.  Until the rule amendments are officially proposed by the DBPR, action by the committee would be premature.


Thank you for alerting us to the potential statutory authority issues regarding rule 61B23.00215, Florida Administrative Code.  We will continue to carefully review proposed rules to ensure compliance with the "map tack" provisions of § 120.5 36, Florida Statutes, and the rulemaking procedure in chapter 120, Florida Statutes.  When rule amendments for rule 61 B23.00215 are published, we will keep these issues in mind and welcome any further comments you may have.

cc:          The Honorable Ellyn Setnor Bogdanoff

               Representative, District 91