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Election Law Update

The First District Court of Appeal reversed the determination of the Division of Administrative Hearings that Rule 2B-1.002, Florida Administrative Code, exceeds the rulemaking authority of the Florida Elections Commission (FEC) and contravenes the law being implemented.  Florida Elections Commission v. Blair, Case No. 1D10-1353 (Fla. 1st DCA December 8, 2010), which can be found here.  The rule defined the terms “willful” and “willfully” for the purpose of the FEC imposing a civil penalty for violating Chapter 104 and Chapter 106, Florida Statutes.

In determining that the rule was an invalid exercise of legislative authority, the administrative law judge applied the definition of “rulemaking authority” set forth in Section 120.52(17), Florida Statutes, added by the Legislature in 2008 to the Administrative Procedures Act (APA), which defined the term to mean “statutory language that explicitly authorizes or requires an agency to adopt, develop, establish, or otherwise create any statement coming within the definition of the term ‘rule.’”  The administrative law judge construed Section 120.52(17) as an additional restriction on agency rulemaking authority. 

The First District rejected that construction. The court concluded that the definition of “rulemaking authority” in Section 120.52(17) was “merely intended” to codify existing law and not to impose new additional restrictions on agency rulemaking authority “beyond what was already expressed in the ‘flush left’ paragraph in section 120.58(2), as construed by this court in Save the Manatee Club and subsequent cases.”

As a consequence, because the FEC is authorized to adopt rules to consider sworn complaints, and because an evaluation of “willfulness” is a necessary component of this consideration, the court concluded that the rule defining “willful” falls within statutory language that explicitly authorizes or requires an agency to adopt, develop, establish, or otherwise create a rule. 

Prepared by:    Mark Herron

                        mherron@lawfla.com

MANY BUSINESSES TO BE EXEMPTED FROM RED FLAGS RULE

It looks like the long road to the enforcement of the Fair and Accurate Credit Transactions Act of 2003, commonly known as the “Red Flags Rule”, is coming to an end for many businesses.  With the recent passage of Senate Bill S.3987, entitled the “Red Flag Program Clarification Act of 2010”, both houses of Congress agreed to exempt certain “creditors” from Red Flag Program regulations.

 By way of review, you may recall that the Red Flags Rule, (“the Rule”), was designed to protect consumers from identity theft.  The Rule, which has undergone numerous enforcement delays, including the current delay scheduled to end on December 31, 2010, broadly applied to businesses that met the definition of a “creditor” under the Equal Credit Opportunity Act, (15 U.S.C. 1691a).  Included as “creditors” were business that:

 “advances funds to or on behalf of a person, based on an obligation of the person to repay the funds or repayable from specific property pledged by or on behalf of the person”

 Under the above definition many business were considered creditors if they did not require payment in full at the time a service or good was provided and/or allowed a client to defer all or a portion of the client’s debt.  S.3987, which is expected to be signed into law by President Obama before December 31, 2010, specifically excludes business that were classified as creditors based solely on the above listed definition of a creditor.  Accordingly, unless a business is otherwise considered a creditor they are exempted from the requirements of the Rule. 

 Although many businesses can breath a sigh of relief by being exempted from yet another regulation, they may wish to continue following the policies and procedures that they previously put in place to prevent consumer identity theft. Generally, adherence to previously implement identity theft prevention policies will continue to benefit both the businesses and the clients they serve. 

 William P. Dillon is Board Certified Health Law attorney with the law firm of Messer, Caparello & Self, P.A.