STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SEED, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 90-2751

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on June 11, 1991, in Fort Lauderdale, Florida.

APPEARANCES

FOR PETITIONER: John W. Perloff, Esquire

Emerson Allsworth, Esquire Doumar, Cazel, Curtis,

Cross & Laystrom 1177 S.E. Third Avenue

Fort Lauderdale, Florida 33316-1197

FOR RESPONDENT: John W. Hedrick, Esquire

Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Building 1, Room 407

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Petitioner's request for a deviation from the educational requirements of a qualified supervisor should be granted for two of Petitioner's employees.

PRELIMINARY STATEMENT

By letter dated December 27, 1989, Petitioner requested a permanent deviation from the educational requirements in Florida Administrative Code Rule 10E-16.003(31) for a qualified supervisor. The deviation was requested for two of Petitioner's employees in accordance with Rule 10E-16.004(10).

Petitioner's request was denied by Respondent in an undated letter received by Petitioner on February 7, 1990. Petitioner filed an Amended Petition For Formal Hearing on February 14, 1990.

The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on May 2, 1990, and assigned to the undersigned on May 9, 1991. A formal hearing was scheduled for August 23-24, 1990, pursuant to a Notice of Hearing issued on May 23, 1990.

The formal hearing was continued and rescheduled several times. During the continuances, Respondent filed several motions addressing the issue to be determined in this proceeding.

Respondent first filed a Motion In Limine on July 30, 1990. The Motion In Limine was denied as facially deficient. 1/

Respondent next filed a Motion To Relinquish Jurisdiction, Cancel Hearing, and Dismiss Petition Due To Mootness ("Motion To Relinquish Jurisdiction") on or about April 30, 1991. Respondent asserted in its motion that Petitioner had relocated its business premises, that Petitioner's existing license was issued for the former premises and was non- transferrable pursuant to Florida Administrative Code Rule 10E- 16.004(4)(e), and that Petitioner had ". . . voluntarily terminated [its] existing licenses and must reapply for . . . new licenses . . . ." Respondent asserted that the issue of whether Petitioner's individual employees were entitled to a deviation from the educational requirements of a qualified supervisor was moot by virtue of the voluntary termination of Petitioner's license.

Respondent's Motion To Relinquish Jurisdiction was denied by order entered on May 6, 1991. The order provided that:

The ultimate issues for determination in this proceeding are whether [Petitioner's employees are] entitled to a 'deviation' from the requirements imposed on qualified supervisors by Florida Administrative Code Rule

10E-16.003(27), and what action, if any, Respondent can take against Petitioner's license as an incident of Respondent's denial of the request for deviation . . . .

Respondent filed a Motion In Limine And Motion To Strike Certain Exhibits And Witnesses on May 10, 1991. Respondent's motion was denied by order entered on May 31, 1991.

Respondent also filed an Amended Motion To Relinquish Jurisdiction, Cancel Hearing And Dismiss Petition on May 10,

1991. The amended motion supplemented the original motion and was denied during the formal hearing. 2/

At the formal hearing, Petitioner presented the testimony of Mr. Harry W. Moffett, Senior Human Services Specialist for Respondent, and Mr. Art Barker, President of The Seed, Inc. Mr. Moffett and Mr. Barker were accepted as expert witnesses without objection.

Respondent presented the testimony of Dr. Iver Groves, Assistant Secretary for Alcohol, Drug Abuse, and Mental Health Programs for Respondent. Dr. Groves was accepted as an expert witness without objection.

The parties submitted 49 exhibits for admission in evidence. Exhibits 1-47 are identified in the joint prehearing stipulation as "Joint Exhibits 1-47."

Respondent presented the deposition testimony of Mr. Matthew Gissen, Executive Director of The Village South, Ms. Marie Reynolds, Division Director, Alcohol and Drug Abuse Services Division, Department of Health and Rehabilitative Services, and Mr. Bruce Hayden, Executive Director for Spectrum Programs, Inc. Joint Exhibits 47, 48, and 49, respectively, are the depositions of Mr. Gissen, Ms. Reynolds, and Mr. Hayden.

Joint Exhibits 1-12, 16-20, 22, 26-29, 33, 36, 41, and 44-48 were admitted pursuant to the stipulation of the parties. Joint Exhibits 32 and 34 were admitted in evidence over Respondent's objection. Joint Exhibits 13-15, 21, 23- 25, 37-40, and 42-43 were not admitted in evidence pursuant to Respondent's objections. Joint Exhibits 30, 31, and 35 were identified and docketed but were not submitted for admission in evidence.

At the conclusion of the formal hearing, both parties requested additional time to file proposed findings of fact and conclusions of law ("proposed recommended orders") due to scheduling conflicts. The parties were given 60 days from the date the transcript was filed with the undersigned to file their respective proposed recommended orders.

A transcript of the formal hearing was filed with the undersigned on July 5, 1991. A Stipulated Proffer was filed on July 24, 1991. In the Stipulated Proffer, the parties petitioned to reopen the record for the purpose of adding evidence that the two employees for whom deviations were requested were employed by The Seed, Inc., pursuant to verbal employment agreements. The Stipulated Proffer included a general description of the terms of employment. The parties' joint petition to reopen the record is granted.

A Joint Errata Sheet was filed with the undersigned on August 1, 1991.

Petitioner and Respondent filed their proposed recommended orders on August 5 and 6, 1991, respectively. The parties proposed findings of fact are addressed in the Appendix to this Recommended Order.

Respondent filed a Motion To Supplement the Record and Corrected Proposed Recommended Order and Affidavit of Herbert Martey on August 7, 1991. Petitioner filed an Objection To Motion To Supplement The Record on August 14, 1991.

Respondent filed a Response To Objection To Motion To Supplement The Record on August 15, 1991, and a Supplement to Proposed Recommended Order Under Conclusions of Law on August 27, 1991. Petitioner filed its Response To Supplement To Proposed Recommended Order on September 3, 1991. Respondent's Motion To Supplement the Record and Corrected Proposed Recommended Order is denied.

FINDINGS OF FACT

Background

1. Petitioner was founded by Mr. Art Barker in 1970 and has been operated since that time as a private, non-profit entity. Petitioner receives no funds from any unit of government and is a valuable asset in the field of drug abuse treatment and prevention.

2. Petitioner enjoys a good reputation in the community it serves and has demonstrated its ability to help people with substance abuse problems. Approximately 7,000 people have gone through Petitioner's drug abuse program with a success rate in excess of 90 percent.

   
   

3. Petitioner was an innovator in the development of the type of drug abuse programs administered by it. The drug abuse program administered by Petitioner has been emulated by approximately 12 other programs in the state. There are not enough programs of this type to satisfy the needs of individuals in the state.

   
   

4. Respondent first began licensing drug abuse programs in February, 1972. Petitioner has been continuously licensed by Respondent as a drug abuse program. Petitioner is authorized under License Number 10A-38 to provide "day care with host component." The licensed address for Petitioner is 919 East Broward Boulevard, Fort Lauderdale, Florida, 33301. Petitioner's license must be renewed annually.

   
   

5. Applicable administrative rules require licensees to operate drug abuse programs under the supervision of a "qualified supervisor." Prior to September, 1986, a qualified supervisor was defined as an individual who, by "training or experience" was responsible for providing clinical guidance to counselors. 3/ In September, 1986, the ability of an individual to qualify as a qualified supervisor based solely upon his or her work experience was deleted. Since September, 1986, an individual who wished to satisfy the requirements of a qualified supervisor was required to either satisfy minimum educational requirements or become certified by the Certification Board of Addiction Professionals of Florida, or by a substantially equivalent certification process ("certified addiction professionals" or "CAP designation").

   
   

6. Petitioner demonstrated its good faith effort to comply with Respondent's rules. Respondent's licensing agent advised Petitioner in 1987 that Petitioner would be in compliance with the new requirements for qualified supervisors as long as staff personnel placed their full name and title next to the comments on the client's records. That procedure was followed by staff personnel during the license years for 1987-1988 and 1988-1989. Petitioner's license was renewed during those years with no question from Respondent concerning the credentials of Petitioner's qualified supervisors. During the same license years, Petitioner's personnel were led to believe by Respondent's licensing agent and reasonably did believe that they were in full compliance with Respondent's rules.

   
   

7. Petitioner relocated in 1987 and purchased a building rather than leasing one. The decision to purchase the building at the new location was made, in part, in reliance upon Respondent's representation and Petitioner's belief that Petitioner was in compliance with applicable rules regarding qualified supervisors.

   
   

8. Respondent refused to issue a regular annual license to Petitioner for the 1989-1990 license year for the sole reason that Petitioner did not have a qualified supervisor. 4/ Respondent specifically determined that neither Mr. Art Barker nor Ms. Lybbi Kienzle satisfy the educational or certification requirements for qualified supervisors. 5/

9. It is uncontroverted that Mr. Art Barker and Ms. Lybbi Kienzle are each competent to perform the duties of a qualified supervisor. Respondent determined that each individual is competent to perform the duties of a qualified supervisor and so stipulated in the joint prehearing stipulation filed in this proceeding.

   
   

10. Respondent did not follow its own rule in rejecting Petitioner's request for a deviation. Respondent's current written policy was adopted as a rule after Petitioner's request for a deviation but prior to the formal hearing. Under Respondent's current rule, each district office must make a recommendation concerning each request for deviation made to the district office. The request for deviation and the district office recommendation is then considered by the licensure rules committee. The licensure rules committee then recommends action to appropriate department personnel who may either accept or reject the committee's recommendation. The approval of any request for deviation automatically ends at the time of the expiration date of the regular license.

    
    

11. At the time of Petitioner's request for deviation, Respondent was in the process of developing its current written policy. Deviation requests and district office recommendations were considered at the time by an ad hoc committee of anywhere from three to seven people, depending upon who was available. The occurrence of such a meeting, the number of people, and the identity of the committee members was determined by "catch-as- you-can." A licensure rules committee was not officially formed until some time after Petitioner's request for deviation. Petitioner's request for deviation and the recommendation of the district office was not considered by any committee.

    
    

12. The district office recommended that Petitioner's request for a deviation be granted. Approval of the request for deviation was recommended by the district office subject to the conditions that the deviation be limited to one year, that Petitioner submit a new request for deviation prior to its annual licensing date, and that the competency of Mr. Barker and Ms. Kienzle to perform the duties of qualified supervisors be documented by their respective resumes. Documentation in the form of resumes was not a significant concern to Respondent and was merely ministerial.

    
    

13. The recommendation for approval of the request for deviation was made by employees of the Respondent who have personal knowledge of the experience and competency of Mr. Barker and Ms. Kienzle. It is uncontroverted that Mr. Barker and Ms. Kienzle are competent to perform the duties of a qualified supervisor. The district office, however, did recommend that either Mr. Barker or someone on his staff pursue CAP designation.

    
    

14. The recommendation of the district office was overruled by Dr. Iver Groves, Ph.D., Assistant Secretary for Alcohol, Drug Abuse and Mental Health. The request for deviation was rejected on the grounds that Mr. Barker's honorary degree did not satisfy the educational requirements for a qualified supervisor. Dr. Groves determined that deviation from the educational requirements for a qualified supervisor cannot be granted under any circumstances. Dr. Groves suggested that Mr. Barker and Ms. Kienzle comply with the requirements for CAP designation or formal education.

    
    

15. Dr. Groves has no personal knowledge of the experience and competency of either Mr. Barker or Ms. Kienzle to perform the duties of a qualified supervisor. Dr. Groves first became involved in this proceeding when a draft of a letter embodying the recommendation of the district office was presented to Dr. Groves for his signature. Dr. Groves spent an ". . . hour [or] maybe two

    hours . . ." considering Petitioner's request for deviation. Dr. Groves never saw the recommendation of the district office, was unaware that anyone in the district office recommended approval of the deviation, and did not consider the recommendation of the district office in making his determination to reject Petitioner's request for deviation. Dr. Groves never compared the requirements for a deviation in the applicable administrative rule to Petitioner's request for deviation.

    
    

16. Dr. Groves rejected Petitioner's request for deviation based upon his concern over the establishment of a precedent for other programs in the state. Dr. Groves primary concern was whether it was appropriate to waive a ". . . fundamental standard in the rule that would have ramifications for the practice of the treatment of addiction across the State of Florida." It is uncontroverted, however, that there are no other programs in the state that are comparable to that administered by Petitioner.

    
    

17. The experience and competency of Mr. Barker and Ms. Kienzle to perform the duties of a qualified supervisor satisfies the purposes of the educational requirements for qualified supervisors. As Dr. Groves stated during his testimony at the formal hearing, the purpose of imposing educational requirements on qualified supervisors is to give Respondent ". . . some assurance of the capability and competence of people within the program . . ." and to insure that ". . . somebody associated with that program . . . has been through a certain organized set of experiences and has been judged to be qualified." Transcript at 111.

    
    

    Grounds For Deviation

    
    

18. Neither Mr. Barker nor Ms. Kienzle satisfy either the educational or certification requirements for qualified supervisors. Neither individual has the requisite education and neither has been certified by the Certification Board of Addiction Professionals of Florida, or by a substantially equivalent certification process.

    
    

19. The honorary degree received by Mr. Barker from Fort Lauderdale University does not satisfy the educational requirements for a qualified supervisor. Mr. Barker was awarded "The Honorary Degree of Doctor of Social Science" in June, 1972, by Fort Lauderdale University. Fort Lauderdale University was accredited at the time the honorary degree was awarded. The citation attached to the honorary degree states in relevant part that the degree was awarded to:

    
    

    . . . the outstanding drug rehabilitation expert in the United States [who] saved 1,500 young men and women from a life in prison or mental hospital or a premature death from a drug overdose. . . . The ninety per cent success rate of The Seed is a tribute to your genius.

    
    

20. Neither Mr. Barker nor Ms. Kienzle satisfy the educational requirements for becoming certified by the Certification Board of Addiction Professionals of Florida, or by a substantially equivalent certification process. Applicants for CAP designation must hold a minimum of an Associates Arts degree from a college or university. The degree requirement became effective on January 1, 1991, and it was impossible for either Mr. Barker or Ms. Kienzle to satisfy the educational requirements prior to the formal hearing.

21. Requiring Mr. Barker and Ms. Kienzle to satisfy the educational requirements for a qualified supervisor would interfere with the efficient operation of Petitioner. The time and energy needed to obtain the academic credits would impose an unnecessary hardship on each of them and detract from the time and energy they could devote to the drug abuse program administered by Petitioner.

    
    

22. Requiring Petitioner to hire a certified addiction professional would interfere with Petitioner's efficient operation. Petitioner has a positive net worth and can pay for such services. In recent years, however, Petitioner has experienced operating deficits. The amount of funds received as donations and pledges has been less than annual operating expenses. Expenses incurred by Petitioner to hire one or more additional personnel who have obtained the CAP designation would increase Petitioner's operating deficit and further erode Petitioner's remaining net worth.

    
    

23. Supervision of either Mr. Barker or Ms. Kienzle by a certified addiction professional would be superfluous and would interfere with Petitioner's efficient operation. Neither Mr. Barker nor Ms. Kienzle need to be supervised by one or more individuals who have obtained the CAP designation in order to perform the duties of a qualified supervisor. It is uncontroverted that Mr. Barker and Ms. Kienzle are competent to perform such duties.

    
    

24. Deviation from the educational requirements for qualified supervisors for Mr. Barker and Ms. Kienzle will not jeopardize the health and safety of clients in the program administered by Petitioner, will not abridge the rights of those clients, and will not diminish the level of quality of client care. Mr. Barker is competent to provide clinical guidance to counselors, approve and reassess treatment plans, supervise psychosocial assessment services, and supervise treatment services for Petitioner. Mr. Barker has focused his time continuously and exclusively on running the drug abuse program for Petitioner. Ms. Kienzle graduated from Petitioner's drug abuse program in 1971 and has been employed continuously and exclusively by Petitioner as a counselor and supervisor.

    
    

25. A master's degree in a social or behavioral science does not assure competency to perform the duties of a qualified supervisor in a drug abuse program. Respondent's rule does not require the field of academic study to be related to the duties that must be performed by a qualified supervisor. As Dr. Groves stated in his testimony during the formal hearing, the requirement for a master's degree in a social or behavioral science is satisfied by a master's degree in history or English. For the same reason, the requirement of an Associate Arts degree for a CAP designation does not assure competency to perform the duties of a qualified supervisor for a drug abuse program.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

27. Petitioner, as the applicant for a deviation, has the burden of proof in this proceeding. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 19810; Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Petitioner must demonstrate by a preponderance of the evidence that it is entitled to a deviation from the educational requirements for qualified supervisors for Mr. Art Barker and Ms. Lybbi Kienzle.

    
    

28. Florida Administrative Code Rule 10E-16.004 imposes common licensure requirements and procedures on alcohol and drug abuse treatment programs. Rule 10E-16.004(34) requires that treatment services must be provided under the supervision of a qualified supervisor. A qualified supervisor is defined in Florida Administrative Code Rule 10E-16.003(31) as:

    
    

    . . . an individual with at least a Master's degree in a social or behavioral science and a minimum of 2 years related experience, as defined in the program's operating standards, or who is certified by the Certification Board of Addiction Professionals of Florida, or by a certification process which is substantially equivalent thereto, and who is responsible for providing clinical guidance to counselors.

    
    

29. Florida Administrative Code Rule 10E-16.004(10)(a) provides:

    
    

    (10) Compliance with Rules.

    1. Deviation. When a requirement is found to interfere with the efficient operation of a program or care of a client, and when the applicant or licensee has demonstrated good faith to fully comply with all rules pursuant to this chapter, the department shall allow that applicant or licensee to deviate from that requirement when the deviation does not jeopardize the health and safety of those clients who are or will be primarily under the care of the program, and that the rights of those clients will not be abridged, and that the level of quality of client care will not be diminished. Such a deviation from a requirement shall automatically end at the time of the expiration date of the regular license. The department shall review and rescind its permission to allow a deviation at any time when the conditions of the deviation are being violated. (emphasis added) 6/

       
       

30. Petitioner satisfied its burden of proof in this proceeding. Petitioner demonstrated by a preponderance of the evidence that it is entitled to a deviation from the educational requirements for qualified supervisors. It is uncontroverted that Mr. Art Barker and Ms. Lybbi Kienzle are competent to perform the duties of a qualified supervisor and also have the necessary experience. Respondent interprets the educational requirements for a qualified supervisor in its own rule as being imposed for the purpose of giving Respondent

    ". . . some assurance of the capability and competence of people within the program . . ." and to insure that ". . . somebody associated with that program .

    . . has been through a certain organized set of experiences and has been judged to be qualified." Respondent's construction of its own rule is entitled to great weight. See, Reedy Creek Improvement District v. State, Department of Environmental Regulation, 486 So.2d 642, 648 (Fla. 1st DCA 1986); Franklin Ambulance Service v. Department of Health and Rehabilitative Services, 450 So.2d 580, 581 (Fla. 1st DCA 1984).

    
    

31. Petitioner provided adequate assurances that:

    
    

    1. compliance with the educational requirements would interfere with the efficient operation of the program administered by Petitioner;

    2. it has made a good faith effort to fully comply with all rules pursuant to Florida Administrative Code Chapter 10E;

    3. deviation from the educational requirements for qualified supervisors does not jeopardize the health and safety of those clients who are or will be primarily under the care of the program;

    4. the rights of Petitioner's clients will not be abridged; and

    5. the level of quality of client care will not be diminished.

       
       

32. When the foregoing factors are found to be present, Florida Administrative Code Rule 10E-16.004(10)(a) provides that Respondent ". . . shall allow [the] applicant or licensee to deviate from . . ." any requirement imposed in Chapter 10E, including the educational requirements imposed by Rule 10E- 16.003(31). Under such circumstances, Respondent has no discretion to refuse to grant a deviation by considering additional factors not prescribed in Respondent's rule.

    
    

33. Agency rules and regulations duly promulgated under authority of law have the effect of law. State v. Jenkins, 469 So.2d 733, 734 (Fla. 1985). Agencies may not deviate from their own substantive rules. Section 120.68(12)(b), Florida Statutes. See also, Gadsden State Bank v. Lewis, 348 So.2d 343, 344 at n. 2 (Fla. 1st DCA 1977). 7/

    
    

34. Respondent deviated from its own substantive rule by considering additional factors not prescribed in Florida Administrative Code Rule 10E- 16.004(10)(a). Respondent considered whether it was appropriate to waive a ". .

    . fundamental standard in the rule that would have ramifications for the practice of the treatment of addiction across the State of Florida . . ." and determined that deviation from the educational requirements for a qualified supervisor ". . . cannot be granted under any circumstances . . . ." Respondent correctly construed its own rule to mean that an honorary degree does not satisfy the educational requirement for a master's degree. However, Respondent did not compare other elements in the request for deviation with the requirements of Respondent's existing rule and did not consider the recommendation of the district office.

35. Respondent is prohibited by Section 120.68(12)(b), Florida Statutes, from deviating from its own rule even though the rule was adopted after Petitioner's request for a deviation but prior to the formal hearing. A rule that is promulgated after the date of a formal hearing but before the date of the final order may be considered in recommending final agency action. Turro v. Department of Health and Rehabilitative Services, 458 So.2d 345, 346 (Fla. 1st DCA 1984). Agency policy which is explicated and applied consistently with a rule promulgated after the date of the formal hearing is enforceable in the formal hearing. See, e.g., Baptist Hospital, Inc. v. State, Department of Health and Rehabilitative Services, 500 So.2d 620, 625 (Fla. 1st DCA 1987). The purpose of a proceeding under Section 120.57(1) is to formulate agency policy. Couch Construction Company, Inc. v. Department of Transportation, 361 So.2d 172,

    176 (Fla. 1st DCA 1978); McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977). Agency action must be formulated in this proceeding in a manner which does not deviate from Respondent's existing rule.

    
    

36. This is not a license disciplinary proceeding. Respondent failed to satisfy the due process protection in Section 120.60(7), Florida Statutes, for license discipline proceedings. Section 120.60(7) prohibits the ". . . revocation, suspension, annulment, or withdrawal of any license . . . unless . .

    . the agency has served . . . an administrative complaint . . ." on the licensee. Respondent failed to file an administrative complaint in this proceeding.

    
    

37. The refusal to renew a license cannot be used as a substitute for a license revocation proceeding. Dubin v. Department of Business Regulation, 262 So.2d 273 (Fla. 1st DCA 1972). There is no less due process protection for refusal to renew a license than there is for revocation of a license. City of Tampa v. Islands Four, Inc., 364 So.2d 738, 741, n.5 (Fla. 2d DCA 1978). The due process protections afforded by Chapter 120, Florida Statutes, apply to the renewal of licenses. Bank of Credit and Commerce International (Overseas) Limited v. Lewis, 570 So.2d 383, 385 (Fla. 1st DCA 1990).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner should be granted a regular license for one

year and the requested deviation. The deviation should automatically end at the

time of the expiration date of the regular license or at such time as Petitioner's regular license is revoked, suspended, or otherwise terminated.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of October 1991.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October 1991.

ENDNOTES

1/ Respondent's Motion In Limine failed to identify the issues raised by Petitioner during discovery which Respondent alleged to be irrelevant and immaterial to this proceeding and failed to request oral argument to identify those issues.

2/ Petitioner also filed a Motion For Summary Recommended Final Order on May 16, 1991. Petitioner's motion was denied by order entered on May 20, 1991.

Respondent filed a Motion To Consolidate on May 17, 1991, which was denied by order entered on May 31, 1991. In addition, there were three motions and orders continuing the formal hearing.

3/ See former Fla. Admin. Code. Rule 10E-7.20(5). In September, 1986, a qualified supervisor was redefined as an individual with at least a master's degree in a social or behavioral science or who is certified through a state recognized certification process and who is responsible for providing clinical guidance to counselors. See former Fla. Admin. Code Rule 10E-7.031(24). On August 7, 1989, the definition of a qualified supervisor was again revised to require at least a master's degree in a social or behavioral science and a minimum of two years related experience, as defined in the program's operating standards, or certification by the Certification Board of Addiction Professionals of Florida, or by a certification process which is substantially equivalent thereto, and who is responsible for providing clinical guidance to counselors. See Fla. Admin. Code Rule 10E-16.003(31).

4/ Respondent has granted Petitioner a series of temporary extensions of its license, and Petitioner has been operating under those temporary extensions since 1989.

5/ Petitioner's proposed findings of fact 15 and 16 state that Petitioner's license renewal for 1989-1990 was timely and sufficient on its face and that the application does not address the qualified supervisor issue. This is not a license revocation proceeding. Therefore, Petitioner's proposed findings of fact 15 and 16 are irrelevant and immaterial.

6/ Fla. Admin. Code Rule 10E-16.004(10)(b) and (c) further provide:

1. Assurances. With the request for a deviation from a requirement, assurances shall be submitted to the department, in writing, attesting that the exception will not jeopardize the health and safety of those clients who are or will be primarily under the care of the program, the rights of those clients will not be abridged and the level of

   quality of client care will not be diminished.

2. Request for Deviation. Requests for a deviation from a requirement shall be submitted by the program to the respective departmental district office and shall not

be implemented until approved by the Assistant Secretary for Alcohol, Drug Abuse and Mental Health or designee. The district office shall forward the request, with a recommendation

for approval or denial, to the above stated office within 10 working days of receipt of the request. The Assistant Secretary for Alcohol, Drug Abuse and Mental Health, or designee, shall respond to the district office within 20 working days of receipt of the request. The district office shall respond

in writing to the provider within 5 working days of receipt of the request. If a reply is not received by the requesting program within 35 working days, the program may

implement the request without further response from the department.

7/ Petitioner's proposed findings of fact at para. 40 address the issue of whether Respondent's policy of refusing deviations from the educational requirements "under any circumstances" is an unwritten policy of general applicability which constitutes an invalid rule. Such is not the issue here. The issue is whether the agency correctly applied its written rule. Similarly, conclusions of law at paras. 60-66 challenge the validity of the educational requirements in Fla. Admin. Code Rule 10E-16.003(31). The undersigned has no authority to determine the invalidity of rules in a proceeding conducted pursuant to Sec. 120.57(1), Fla. Stat.

APPENDIX TO RECOMMENDED ORDER

Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

immaterial

10-12 Accepted in Finding 6

47 Accepted in Finding 24

48-49 Rejected as irrelevant and immaterial

50 Accepted in Finding 25

51-52 Rejected as recited testimony

Respondent submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

John Slye, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

John W. Perloff, Esquire Emerson Allsworth, Esquire Doumar, Cazel, Curtis,

Cross & Laystrom 1177 S.E. Third Avenue

Fort Lauderdale, Florida 33316-1197

John W. Hedrick

Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Building 1, Room 407

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-002751

Orders for Case No: 90-002751