STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILLIP R. DAVIS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4085RX

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PROFESSIONAL ) GEOLOGISTS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal Section 120.57 administrative hearing and a rule challenge proceeding were heard on October 8, 1991, in Tampa, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David M. Caldevilla, Esquire

de la PARTE & GILBERT, P.A.

705 East Kennedy Boulevard Post Office Box 172537 Tampa, Florida 33672 0537

For Respondent: Arthur R. Wiedinger, Esquire

Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399 1050

STATEMENT OF THE ISSUES

Whether Rule 21DD-5.002, Florida Administrative Code, as applied to an application for licensure as a professional geologist without examination, is an invalid exercise of delegated legislative authority, as defined in Section 120.52(8), Florida Statutes.

PRELIMINARY STATEMENT

On July 2, 1991, Petitioner, Phillip R. Davis (Davis), filed a petition to challenge the validity of a rule promulgated by Respondent, Department of Professional Regulation, Board of Professional Geologists (the Board). The rule at issue describes how an applicant seeking to take the licensure examination to become a professional geologist, can demonstrate he or she has fulfilled the educational requirement of 30 hours of geological coursework specified in Section 492.105(1)(d)2, Florida Statutes.

Petitioner Davis contends Rule 21DD-5.002, Florida Administrative Code, is invalid as a matter of law because it creates an evidentiary presumption not specifically authorized by the Legislature. In addition he alleges the rule enlarges, modifies, or contravenes the specific provisions of law implemented and is otherwise an invalid exercise of delegated legislative authority.

Pursuant to agreement, this rule challenge proceeding was consolidated with a pending formal Section 120.57 administrative hearing involving Petitioner's application for licensure. As the hearing officer has final authority in the

1. rule challenge proceedings and recommended order authority in the 120.57 formal administrative hearing, the orders are filed separately.

   
   

   During the hearing, Petitioner Davis presented two witnesses and testified in his own behalf. Thirty-one exhibits were moved into evidence and were accepted by the Hearing Officer. Leave was granted to file an additional exhibit posthearing. It should be noted that the transcript does not coincide with the hearing officer's handwritten exhibit list created at hearing. Exhibit #26 and all other exhibits offered were admitted. The Board called one witness. No additional exhibits were offered during the Board's responsive case. An opportunity to present additional evidence in direct response to the textbooks and course notes placed into evidence by Petitioner, including the posthearing submission, was permitted because the Board had not been advised they would be placed into evidence. Upon review of the exhibits, the opportunity to respond to them was declined by the Board. Accordingly, the evidence closed on November 20, 1991, when Petitioner's last exhibit was moved into evidence and accepted without objection.

   
   

   The transcript of the proceeding was filed on November 5, 1991. The parties waived statutory and procedural time deadlines for the filing of the final and recommended orders to gain additional time for the submission of proposed orders. Both parties submitted proposed orders addressing the Final Order and the Recommended Order. Rulings on proposed findings of fact related to the Final Order are in the attached Appendix.

   
   

   FINDINGS OF FACT

   
   

   1. On September 29, 1988, Petitioner Davis made application in proper form to the Board for licensure as a professional geologist without examination, as provided in Section 492.105(2)(c), Florida Statutes.

      
      

   2. To establish entitlement to licensure without examination, an applicant must meet all of the other requirements of Section 492.105, Florida Statutes, and make application in proper form within one calendar year of October 1, 1987.

      
      

   3. The only requirement of Section 492.105, Florida Statutes, in dispute in the formal Section 120.57 administrative hearing is whether Petitioner Davis has fulfilled the educational requirements set forth in Section 492.105(1)(d), Florida Statutes, so the Board can qualify him without examination. The parties stipulate that all other statutory licensing criteria have been met by the applicant.

      
      

   4. Petitioner's application was deemed complete by the Board on June 25, 1990.

      
      

   5. Rule 21DD-5.003, Florida Administrative Code, describes the requisite geological coursework and fundamental core program of geology accepted by the Board for purposes of fulfilling the requirements of Section 492.105(1)(d)2,

      Florida Statutes. This rule was enacted on April 22, 1990, over one and one- half years after Petitioner applied for his license.

      
      

   6. On July 12, 1990, a notice of denial of the application for licensure without examination was issued by the Board. According to the notice, the application committee determined Petitioner's transcripts from the University of Arizona do not show the 30 semester hours of geological courses mandated by Section 492.105(1)(d)2., Florida Statutes.

      
      

   7. Although the Board did not cite Rule 21DD-5.002, Florida Administrative Code, as a basis for its decision to deny the application, the rule was used to determine if Petitioner satisfied the educational requirements mandated by Section 492.105(1), Florida Statutes.

      
      

   8. Due to the fact that an application for licensure without examination contains the same educational requirements as an application for examination, the Board extrapolated that the new rule should be applied so as to include those still seeking licensure under the "grandfather clause" in Section 492.105(2)(c). Applications for licensure without examination which were still pending on the effective date of the rule, were evaluated according to the rule criteria.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Sections 120.56 and 120.57, Florida Statutes.

      
      

   10. Petitioner Davis has applied to the Board for licensure without examination. This exemption is set forth in Section 492.105(2)(c), Florida Statutes, which provides as follows, in pertinent part:

       
       

       The department shall issue a license to practice professional geology to any person who has:

       1. Paid the appropriate license fee;

       2. Been certified by the board as qualified to practice professional geology; and

       3. Passed the written licensure examination; provided that applicants meeting the other requirements of this section may be licensed without written examination if application is made in proper form within 1 calendar year of October 1, 1987.

          
          

   11. How this particular exemption from the licensure examination relates to the statutory scheme for professional geologists in Florida has recently been subject to judicial review. As noted by the court in Clark v. Department of Professional Regulation, 584 So.2d 59 (Fla. 1st DCA 1991), the "grandfathering provision" in Chapter 492, Florida Statutes, does not give persons who previously performed work in Florida as geologists, a vested right to continue that work without demonstrating competence under the new regulatory standards. The licensure provisions created by the Legislature in 1987 require all applicants to satisfy the educational and experience requirements identified in Section 492.105(1), Florida Statutes.

       
       

   12. The only requirements of Section 492.105 in dispute which prevent the Board from certifying Petitioner as a professional geologist relate to his college transcripts for courses completed almost two decades ago. The

       educational requirements which must be satisfied are found in Section 492.105(1)(d)2., Florida Statutes.

       
       

   13. The only factual dispute in this proceeding relates to whether Petitioner Davis completed a sufficient amount of geological coursework which would allow the Board to certify that he has met the following statutory criteria in Section 492.105(1)(d)2, Florida Statutes:

       
       

       Satisfactory completion of at least 30 semester hours of geological courses, 24 of which must be at the third or fourth year or graduate level.

       
       

   14. The Board's implementation of the aforementioned statutory provision has been both refined and constricted in Rule 21DD-5.002, Florida Administrative Code. This rule defines those courses acceptable to the Board as geological courses. This rule, which was applied to Petitioner's application, states:

       
       

       For the purposes of fulfilling the requirements of Section 492.105(1)(d)2., The necessary thirty (30) hours of geology course work shall be comprised of the basic core program of geology. A typical listing would include most of the following subject areas:

       Physical Geology Historical Geology Structural Geology Mineralogy

       Optical Mineralogy Petrology Sedimentology/Stratigraphy Geophysics

       Geochemistry Economic Geology Hydrogeology

       Field Methods/Field Camp Paleontology

       Other specialized courses may be used to complete the total, but may not be used in abundance to substitute for the basic listing as described above. Where some question concerning a course submitted as qualifying

       as a geology course exists, the Board will utilize the contents of similar courses offered within the Florida State University System for evaluation. It is the applicant's responsibility to submit documentation, including a course syllabus, university catalog copy, or evaluation by a qualified geologist familiar with the course, for any course offered as a geology equivalent that needs additional explanation. Specific Authority 492.104 F.S. Law Implemented 492.105(1)(d)2.

       F.S. History --New 4-22-90.

       
       

   15. It is important to note what authority was cited by the Board when the rule was adopted and which law was being implemented. If a rule is supposed to relate to certain laws, a reference to such laws is to accompany the rule. Section 120.54(7), explicitly states:

       
       

       Each rule adopted shall be accompanied by a reference to the specific rulemaking authority pursuant to which

       the rule was adopted and a reference to the section or subsection of the Florida Statutes or the Laws of Florida being implemented, interpreted, or made specific.

       
       

   16. In this instance, the rule enacted did not refer to Section 492.105(2)(c), Florida Statutes, as a law which was being implemented. If a reference to this law had accompanied the rule, then the Board could have used the rule to interpret which 30 hours of geology courses meet the statutory educational requirements for applicants seeking licensure without examination. Without this reference, the use of the rule on such applications would be an "invalid exercise of delegated legislative authority", according to Section 120.52(8)(c), Florida Statutes, which states:

       
       

       (8) "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, or duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

       * * *

       (c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7).

       
       

   17. In spite of the fact that the Board had statutory authority under Section 492.104, Florida Statutes, to apply a rule concerning geological coursework to all applicants, the use of this particular rule was restricted by the Board to applicants seeking licensure by examination. This occurs because the rule cites Section 492.105(1)(d)2, Florida Statutes, as the only law implemented.

       
       

   18. The application of Rule 21DD-5.002, Florida Administrative Code, to Petitioner's educational qualifications was improper because such use of the rule enlarged the specific provisions of law implemented, contrary to Section 120.52(8)(c), Florida Statutes. It did not comport with lawful, specific rulemaking and adoption procedures. As a result, the rule is invalid when applied to Petitioner Davis and persons similarly situated.

       
       

   19. Having determined that the rule was improperly applied to Petitioner's educational qualifications, his pending application must be evaluated on the educational requirements set forth in Section 492.105(5)(2), Florida Statutes. Petitioner Davis does not need to demonstrate that he had a basic core program of geology during college instruction in a different state approximately twenty years ago. He is required to prove only that he successfully completed 30 hours of geological courses, 24 hours which must be at the third or fourth year or graduate level.

ORDER

Based upon the foregoing, it is hereby ORDERED:

1. The petition to invalidate Rule 21DD-5.002, Florida Administrative Code, is granted in all instances in which the rule is used to describe how an applicant seeking licensure without examination can demonstrate he or she has fulfilled the educational requirement of 30 hours of geological coursework specified in Section 492.105(1)(d)2, Florida Statutes.

2. The petition is denied in all cases involving licensure by examination.

DONE and ENTERED this 2nd day of March, 1992, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the

Division of Administrative Hearings this 2nd day of March, 1992.

APPENDIX TO FINAL ORDER

Petitioner's proposed findings of fact relating to the rule challenge are found in Paragraphs 1-26 of the submittal to the hearing officer regarding both the rule challenge and the formal administrative hearing. These findings of fact are addressed as follows:

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

6. Rejected. Irrelevant.

7. Accepted.

8. Accepted.

9. Accepted.

10. Accepted.

11. Rejected. Irrelevant.

12. Rejected. Irrelevant.

13. Accepted.

14. Rejected. Irrelevant.

15. Rejected. Irrelevant.

16. Rejected. Irrelevant.

17. Rejected. Irrelevant.

18. Rejected. Irrelevant.

19. Rejected. Irrelevant.

20. Rejected. Irrelevant.

21. Rejected. Irrelevant.

22. Rejected. Irrelevant.

23. Rejected. Irrelevant.

24. Rejected. Irrelevant.

25. Rejected. Irrelevant.

26. Rejected. Mischaracterization of testimony.

Respondent's proposed findings of fact are addressed follows:

1. Accepted. See Conclusions of Law in Final Order.

2. Accepted as a general statement. Reject that rule was properly promulgated to carry out the implementation the Board states it wants regarding pending applications for licensure without examination.

3. Accepted as to applicants for licensure with examination. Rejected as to applicants for licensure without examination. See Conclusions of Law in Final Order.

4. Accepted.

5. Rejected. Irrelevant. See Conclusions of Law in Final Order.

6. Accepted, to the extent that the Legislature has delegated that authority under Section 492.104, Florida Statutes.

7. Accepted.

8. Accepted.

COPIES FURNISHED:

DAVID M CALDEVILLA ESQ de la PARTE & GILBERT 705 E KENNEDY BLVD

PO BOX 172537

TAMPA FL 33672 0537

ARTHUR R WIEDINGER ESQ ASST ATTORNEY GENERAL DEPT OF LEGAL AFFAIRS SUITE 1603 - THE CAPITOL TALLAHASSEE FL 32399 1050

ANGEL GONZALEZ - EXECUTIVE DIRECTOR FLORIDA BOARD OF PROFESSIONAL GEOLOGISTS NORTHWOOD CENTRE, SUITE 60

1940 N MONROE ST TALLAHASSEE FL 32399 0764

JACK McRAY ESQ GENERAL COUNSEL

DEPT OF PROFESSIONAL REGULATION 1940 N MONROE ST

TALLAHASSEE FL 32399 0792

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL NOT FINAL UNTIL TIME EXPIRES REGULATION, BOARD OF TO FILE MOTION FOR REHEARING AND PROFESSIONAL GEOLOGISTS, DISPOSITION THEREOF IF FILED.

Appellant, CASE NO. 92-898

DOAH CASE NO. 91-4085RX

vs.

PHILLIP R. DAVIS,

Appellee,

/ PHILLIP R. DAVIS,

Cross-Appellant,

vs. CASE NO. 92-2875.

(CONSOLIDATED)

BOARD OF PROFESSIONAL GEOLOGISTS,

Cross-Appellee.

/

Opinion filed July 22, 1993.

Appeal and Cross-Appeal from an order of the Division of Administrative Hearings and Board of Professional Geologists.

Robert A. Butterworth, Attorney General, and Arthur R. Wiedinger, Jr., Assistant Attorney General, Tallahassee, for appellant and cross-appellee.

John Beranek, of Aurell Radey Hinkle Thomas & Beranek, Tallahassee, and David M. Caldevilla, of de la Parte & Gilbert, Tampa, for appellee and cross-appellant.

PER CURIAM.

In case number 92-898, we REVERSE the final order of the Division of Administrative Hearings finding Rule 21DD-5.002, Florida Administrative Code, "invalid when applied to Petitioner Davis and persons similarly situated," and hold that the rule applies to the application for licensure of Phillip R. Davis. This action requires us to also REVERSE the final order of the Board of

Professional Geologists in case number 92-2875 denying Davis's application for licensure, since the licensure proceeding did not take into account the effect of the rule on Davis's application. We reject the "default license" argument as being without merit. Case number 92-2875 is remanded to the Board of Professional Geologists for such further proceedings as are necessary in light of this opinion. Davis's motion for attorney's fees and costs is DENIED.

BOOTH, BARFIELD, and KAHN, JJ., CONCUR.

Docket for Case No: 91-004085RX

Orders for Case No: 91-004085RX