Statutory Web

[weishaupt1776]

The following is a rough draft of the Florida version of The Black Truth's Use Your State's APA
I'm just lining the titles up right now, so it is not final. The material herein may not line up with his

• The accused is a disenfranchised Floridian endowed with certain unalienable rights protected by the state constitution and the federal constitution, including, but not limited to the right to travel freely and to not be deprived of liberty or property without due process of law. See Florida Constitution Art. 1, Sec. 9

Okay, this was gettin, slippery, BT. I made it up to your first point regarding Article I. This is definitely a jig-saw puzzle thus far. Here is what I am finding thus far. For newbies, I am using this logic:

There are 3 branches: Legislative, Judicial, Executive.

"Law" "Enforcement" is within an Executive delegation, so I went to

• TITLE IV
  EXECUTIVE BRANCH
  Chapter 20
  ORGANIZATIONAL STRUCTURE

Always, check the definitions after you've found the general code heading !

• 20.03 * Definitions.

In BT's analysis, there is clear language in CVC 2402 delineating the commissioner promulgating rules under the APA

I was having a ****ens of a time so I am trying to narrow it down in the good 'ole Florida Code. Now, since the DOHS is executive, we must see how the executive branch defines "department" & here we go

• (2)"Department" means the principal administrative unit within the executive branch of state government.
  
  (6)"Executive director" means the chief administrative employee or officer of a department headed by a board or by the Governor and the Cabinet.

20.04]* Structure of executive branch

• (1)The department is the principal administrative unit of the executive branch. Each department must bear a title beginning with the words "State of Florida" and continuing with "Department of _____."
  3)For their internal structure, all departments, except for the Department of Financial Services, the Department of Children and Family Services, the Department of Corrections, the Department of Management Services, the Department of Revenue, and the Department of Transportation, must adhere to the following standard terms:
  
  (a)The principal unit of the department is the "division." Each division is headed by a "director."
  
  (b)*The principal unit of the division is the "bureau." Each bureau is headed by a "chief."
  
  (c)The principal unit of the bureau is the "section." Each section is headed by an "administrator."

20.05* Heads of departments; powers and duties. --

• 
  1)**Each head of a department, except as otherwise provided by law, must:
  b)**Have authority, without being relieved of responsibility, to execute any of the powers, duties, and functions vested in the department or in any administrative unit thereof through administrative units and through assistants and deputies designated by the head of the department from time to time, unless the head of the department is explicitly required by law to perform the same without delegation;

20.24* Department of Highway Safety and Motor Vehicles

• --There is created a Department of Highway Safety and Motor Vehicles.
  
  (1)**The head of the Department of Highway Safety and Motor Vehicles is the Governor and Cabinet.
  
  (2)**The following divisions, and bureaus within the divisions, of the Department of Highway Safety and Motor Vehicles are established:
  
  (a)**Division of the Florida Highway Patrol.
  
  (b)**Division of Driver Licenses.
  
  (c)**Division of Motor Vehicles.
  
  1.**Bureau of Motor Vehicle Inspection.

O.K. kids, lets go to Title XXIIII MOTOR VEHICLE CODE
316.640 * Enforcement.

• 8)**TRAFFIC ENFORCEMENT AGENCY.--Any agency or governmental entity designated in subsection (1), subsection (2), or subsection (3), including a university, a community college, a school board, or an airport authority, is a traffic enforcement agency for purposes of s. 316.650.

316.650* Traffic citations

• (4)**The chief administrative officer of every traffic enforcement agency shall require the return to him or her of the department record copy of every traffic citation issued by an officer under the chief administrative officer's supervision to an alleged violator of any traffic law or ordinance and of all copies of every traffic citation which has been spoiled or upon which any entry has been made and not issued to an alleged violator. In the case of a traffic enforcement agency which has an automated citation issuance system, the chief administrative officer shall require the return of all electronic traffic citation records.
  
  (5)**Upon the deposit of the original and one copy of such traffic citation or upon deposit of an electronic facsimile of the traffic citation with respect to traffic enforcement agencies which have an automated citation issuance system with a court having jurisdiction over the alleged offense or with its traffic violations bureau as aforesaid, the original, facsimile, or copy of such traffic citation may be disposed of only by trial in the court or other official action by a judge of the court, including forfeiture of the bail, or by the deposit of sufficient bail with, or payment of a fine to, the traffic violations bureau by the person to whom such traffic citation has been issued by the traffic enforcement officer.
  
  (6)**The chief administrative officer shall transmit, on a form approved by the department, the department record copy of the uniform traffic citation to the department within 5 days after submission of the original and one copy to the court, or citation and transmittal data may be transmitted to the department in an automated fashion, in a form prescribed by the department. A copy of such transmittal shall also be provided to the court having jurisdiction for accountability purposes.
  
  (7)**The chief administrative officer shall also maintain or cause to be maintained in connection with every traffic citation issued by an officer under his or her supervision a record of the disposition of the charge by the court or its traffic violations bureau in which the original or copy of the traffic citation was deposited.

Now I'll try to pick up on BT's second point and apply the Florida Code:

• The Vehicle Code is to be enforced according to 316.640
• They are Traffic Enforcement Agencies & the officers of that agency are under the chief administrative officer's supervision according to 316.650
• A "chief" heads a "bureau" which is the principal unit of the "division"
• The "division" is headed headed by a "director."
• The "division" is principal unit of the department
  20.04
• The "DIRECTOR " is the Director of the Division of the Florida Highway Patrol of the Department of Highway Safety and Motor Vehicles.316.003(9)

• The head of the Department of Highway Safety and Motor Vehicles is the Governor and Cabinet. 20.24
• Department" means the principal administrative unit within the executive branch of state government. 20.03(2)[/b]

[weishaupt1776]

• A Department is considered an "Agency" 20.03(11)
  
• In the Administrative Procedures Act, An agency is defined in120.52
  • 
    Definitions. --As used in this act:
    
    (1)**"Agency" means:
    
    (a)**The Governor in the exercise of all executive powers other than those derived from the constitution.
    
    (b)**Each:
    
    1.**State officer and state department, and each departmental unit described in s. 20.04.

Therefore, the Department of Highway Safety and Motor Vehicles and all of it's divisions, bureaus, and sections is an agency as defined in the Administrative Procedures Act

Here's the criteria which would exempt the DHSMV from the APA
This may line up with BT's point 11 in the pdf attachment in the thread below this one.
120.63* Exemption from act

[TheBlackTruth]

Great work, Weis!!

It looks like before long you will have a standard APA argument for any traffic offense case in Florida.

By the way, my APA argument has evolved emmensely since I posted the thread that you linked to. I have attached to this posting my latest and greatest.


-BT

p.s. This motion has won 3 times since its debut about 3 weeks ago. It has not lost yet.

You might want to upload this for the folks. People can download it and customize it. You dont have to, but would be nice to have it there so all in need could easily find it. Very good.

[TheBlackTruth]

Originally Posted by Eureka

You might want to upload this for the folks. People can download it and customize it. You dont have to, but would be nice to have it there so all in need could easily find it. Very good.

Thanks, Eureka. I hope you can get some good mileage out of it and even add to it. It is a living document and I will be sure to post my updates as time progresses.

As for uploading the document. I tried to do so, but had no success.

-BT

[weishaupt1776]

California(BT's petition-point 4)

1. The California Highway Patrol and the Department of Motor Vehicles are an “Agency” within the meaning of the California Government Code (CGC) section 11405.30
   • 
     11405.30. "Agency" means a board, bureau, commission, department, division, office, officer, or other administrative unit, including the agency head, and one or more members of the agency head or agency employees or other persons directly or indirectly purporting to act on behalf of or under the authority of the agency head. To the extent it purports to exercise authority pursuant to this chapter, an administrative unit otherwise qualifying as an agency shall be treated as a separate agency even if the unit is located within or subordinate to another agency.

Florida

• 
  A Department w/in the executive branch is considered an "Agency" 20.03(11)
  • 
    (11)"Agency," as the context requires, means an official, officer, commission, authority, council, committee, department, division, bureau, board, section, or another unit or entity of government
• In the Administrative Procedures Act, An agency is defined in 120.52
  
  • (1)"Agency" means:
    
    (a)The Governor in the exercise of all executive powers other than those derived from the constitution.
    
    (b)Each:
    
    1.State officer and state department, and each departmental unit described in s. 20.04.
    2.Authority, including a regional water supply authority.
• 
  Therefore, the Department of Highway Safety and Motor Vehicles and all of it's divisions, bureaus, and sections is an agency as defined in the Administrative Procedures Act

California(BT's petition-point 6)

1. The Vehicle Code is enforced by The California Highway Patrol and the Department of Motor Vehicles as per CVC §§2400 and 1650
   • 
     (b) The commissioner shall enforce all laws regulating the operation of vehicles and the use of the highways
     
     1650. The director shall administer and enforce the provisions of this code relating to the department

Florida

• The Division of Florida Highway Patrol (DFHP) of the Department of Highway Safety and Motor Vehicles (DHSMV) has authority to enforce all of the traffic laws of this state. 316.640
  • 
    (a)1.a. The Division of Florida Highway Patrol of the Department of Highway Safety and Motor Vehicles, the Division of Law Enforcement of the Fish and Wildlife Conservation Commission, the Division of Law Enforcement of the Department of Environmental Protection, and law enforcement officers of the Department of Transportation each have authority to enforce all of the traffic laws of this state on all the streets and highways thereof and elsewhere throughout the state wherever the public has a right to travel by motor vehicle.
• Any entity or agency in the subsections of 316.640 are Traffic Enforcement Agencies 316.650
  • 
    316.640 (8)TRAFFIC ENFORCEMENT AGENCY.--Any agency or governmental entity designated in subsection (1), subsection (2), or subsection (3), including a university, a community college, a school board, or an airport authority, is a traffic enforcement agency for purposes of s. 316.650.
• The Department of Highway Safety and Motor Vehicles is the principal administrative unit of the executive branch. 20.04 (1)
  • (1)The department is the principal administrative unit of the executive branch. Each department must bear a title beginning with the words "State of Florida" and continuing with "Department of _____."
• Traffic Enforcement Agencies are administrative units of the Division, which, in turn are administrative units of the Department. 20.04(3)(a-c)
  • (3)**For their internal structure, all departments, except for the Department of Financial Services, the Department of Children and Family Services, the Department of Corrections, the Department of Management Services, the Department of Revenue, and the Department of Transportation, must adhere to the following standard terms:
    
    (a)**The principal unit of the department is the "division." Each division is headed by a "director."
    
    (b)**The principal unit of the division is the "bureau." Each bureau is headed by a "chief."
    
    (c)**The principal unit of the bureau is the "section." Each section is headed by an "administrator."
    
    (d)**If further subdivision is necessary, sections may be divided into "subsections," which are headed by "supervisors."

California(BT's petition-point 7)

• The commissioner shall have full responsibility and primary jurisdiction for the administration and enforcement of the vehicle code as per CVC §2400(d)
  • (d) The commissioner shall have full responsibility and primary
    jurisdiction for the administration and enforcement of the laws

Florida

• Florida Statute 20.05 says;
  • (a)Each head of a department, except as otherwise provided by law, must Plan, direct, coordinate, and execute the powers, duties, and functions vested in that department or vested in a division, bureau, or section of that department
    (b)**Have authority, without being relieved of responsibility, to execute any of the powers, duties, and functions vested in the department or in any administrative unit thereof through administrative units and through assistants and deputies designated by the head of the department from time to time, unless the head of the department is explicitly required by law to perform the same without delegation.
• (1)**The head of the Department of Highway Safety and Motor Vehicles is the Governor and Cabinet. 20.24
  • 20.24* Department of Highway Safety and Motor Vehicles.--There is created a Department of Highway Safety and Motor Vehicles.
    
    (1)**The head of the Department of Highway Safety and Motor Vehicles is the Governor and Cabinet.
    
    (2)**The following divisions, and bureaus within the divisions, of the Department of Highway Safety and Motor Vehicles are established:
    
    (a)**Division of the Florida Highway Patrol.
    
    (b)**Division of Driver Licenses.
    
    (c)**Division of Motor Vehicles.
    
    1.**Bureau of Motor Vehicle Inspection
• The definitions regarding ORGANIZATIONAL STRUCTURE of the executive department in 20.03 provide uniform nomenclature throughout the structure of the executive branch
• "Agency," means an official, officer, commission, authority, council, committee, department, division, bureau, board, section, or another unit or entity of government.

The department prepares and supplies to every traffic enforcement agency in this state the traffic citations containing a notice to appear. 316.650

• 
  316.650* Traffic citations.--
  
  (1)(a)**The department shall prepare, and supply to every traffic enforcement agency in this state, an appropriate form traffic citation containing a notice to appear

Traffic Enforcement Agencies are, therefore, under the jurisdiction of the Executive Branch

Therefroe, the Governor & his cabinet, as department heads, have principal jurisdiction over the Traffic Enforcement Agency who issued this notice to appear.

[weishaupt1776]

California(BT's petition-point 11)

1. According to CGC §§ 11400, 11410.20 & 11410.50, The executive branch departments within the California Business, Transportation & Housing agency, hereafter collectively, "Agency," which are not expressly exempted nor are there statutes relating to the proceedings that provide otherwise, must abide by the Administrative Procedures Act, "APA":
   • 
     11410.10. This chapter applies to a decision by an agency if, under the federal or state Constitution or a federal or state statute, an evidentiary hearing for determination of facts is required for formulation and issuance of the decision.
     
     11410.20. Except as otherwise expressly provided by statute:
     (a) This chapter applies to all agencies of the state.
     (b) This chapter does not apply to the Legislature, the courts or judicial branch, or the Governor or office of the Governor.
   • 
     11410.50. This chapter applies to an adjudicative proceeding
     required to be conducted under Chapter 5 (commencing with Section 11500) unless the statutes relating to the proceeding provide otherwise.

Florida

• 
  120.50 Exception to application of chapter.--This chapter shall not apply to:
  
  (1)**The Legislature.
  
  (2)**The courts
  
  120.63 Exemption from act.--
  
  (1)**Upon application of any agency, the Administration Commission may exempt any process or proceeding governed by this act from one or more requirements of this act:

California(BT's petition-point 14)

1. The agency is required to conduct adjudicative hearings for actions undertaken within the purview of its authority (contested cases) where a state statute or an inalienable right (to travel) is in
   question. See CGC §§11410.10, 11410.60(b)(2), 11512 .
   • 
     11410.60.(b) This chapter applies to an adjudicative proceeding conducted
     by a quasi-public entity if all of the following conditions are
     satisfied:
     (2) A statute, the United States Constitution, or the California Constitution, requires an evidentiary hearing for determination of facts for formulation and issuance of the decision. Nothing in this section is intended to create an evidentiary hearing requirement that is not otherwise statutorily or constitutionally imposed.
   • 
     11512. (a) Every hearing in a contested case shall be presided over by an administrative law judge. The agency itself shall determine whether the administrative law judge is to hear the case alone or whether the agency itself is to hear the case with the administrative law judge.

Florida

• 120.569 Decisions which affect substantial interests.--
  
  (1)The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency
  
  120.57 *
  
  120.69*Enforcement of agency action a)**Any agency may seek enforcement of an action by filing a petition for enforcement, as provided in this section, in the circuit court where the subject matter of the enforcement is located.

[/b]

[gatorguy3]

Alright...

I am reading the information on the Department of Revenue as an agency and this is what I see in reference to child support...

20.21 Department of Revenue.--There is created a Department of Revenue.

(1) The head of the Department of Revenue is the Governor and Cabinet.

(h) The child support enforcement responsibilities of the department include the administration of the child support enforcement program established by Title IV-D of the Social Security Act, 42 U.S.C. ss. 651 et seq.

(4) Necessary legal services, pursuant to chapter 16, including litigation shall be provided to the Department of Revenue by the Department of Legal Affairs, except for the establishment of paternity or support obligations, and the modification, enforcement, and collection of support obligations, for which legal services may be provided under a contract entered into by the Department of Revenue as the Title IV-D agency.

in (4) this is why there is a private attorney working on behalf of the department. he does not actually work within the department, rather, he is being contracted by them.

Going to read more. I still do not quite understand.

[weishaupt1776]

Hey Gator Guy, I am learning just like you.

Read the Black Truth's PDF above and check it out

I have started a new thread for this, so let's move our conversation over here:
http://forum.suijuris.net/showthread...4827#post54827

[weishaupt1776]

Man, these are slippery critters.

I'm going through the APA regarding
120.80* Exceptions and special requirements; agencies.--

Here's what they have for the DMV

• (8)**DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES.--
  
  (a)**Drivers' licenses.--
  
  1.**Notwithstanding s. 120.57(1)(a), hearings regarding drivers' licensing pursuant to chapter 322 need not be conducted by an administrative law judge assigned by the division.
  
  2.**Notwithstanding s. 120.60(5), cancellation, suspension, or revocation of a driver's license shall be by personal delivery to the licensee or by first-class mail as provided in s. 322.251.

See, that "notwithstanding" means "in spite of", "despite", or as if that section did not exist.