STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LUZ MARINA VILAR, )
)
Petitioner, )
)
vs. ) Case No. 03-2940RX
) DEPARTMENT OF HEALTH, BOARD OF ) PHYSICAL THERAPY PRACTICE, )
)
Respondent. )
) FABIOLA PACHECO, )
)
Petitioner, )
)
vs. ) Case No. 03-2941RX
) DEPARTMENT OF HEALTH, BOARD OF ) PHYSICAL THERAPY PRACTICE, )
)
Respondent. )
) JAMIE TATIS, )
)
Petitioner, )
)
vs. ) Case No. 03-2942RX
) DEPARTMENT OF HEALTH, BOARD OF ) PHYSICAL THERAPY PRACTICE, )
)
Respondent. )
)
ANGELICA MORELLI, )
)
Petitioner, )
)
vs. ) Case No. 03-2943RX
) DEPARTMENT OF HEALTH, BOARD OF ) PHYSICAL THERAPY PRACTICE, )
)
Respondent. )
) PATRICIA NORIEGA, )
)
Petitioner, )
)
vs. ) Case No. 03-2944RX
) DEPARTMENT OF HEALTH, BOARD OF ) PHYSICAL THERAPY PRACTICE, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, a hearing was conducted in these consolidated cases pursuant to Section 120.569, Florida Statutes, and Section 120.57(1), Florida Statutes, on September 15, 2003, in Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Neil Flaxman, Esquire
Neil Flaxman, P.A.
550 Biltmore Way, Suite 780 Coral Gables, Florida 33134
For Respondent: Donna Erlich, Esquire
Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
STATEMENT OF THE ISSUE
Whether the last sentence of Rule 64B17-3.003, Florida Administrative Code, which provides that "[a]n applicant who has failed to pass the [physical therapist licensure] examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure [by endorsement]," is an "invalid exercise of delegated legislative authority," within the meaning of Section 120.52(8)(c), Florida
Statutes.
PRELIMINARY STATEMENT
On August 13, 2003, Petitioners filed with the Division of Administrative Hearings (Division) separate petitions challenging the validity of the last sentence of Rule 64B17- 3.003, Florida Administrative Code, arguing that said rule provision is "beyond the Board's rulemaking authority because it does not implement a specific statute." The petitions were docketed as DOAH Case Nos. 03-2940RX, 03-2941RX, 03-2942RX, 03-
2943RX, and 03-2944RX. By Orders of Assignment issued
August 15, 2003, these cases were assigned to the undersigned, with the direction that they be "scheduled for hearing within thirty days from the date of the[] ORDER[S], unless a stipulation from the parties . . . requests that the final hearing be set at a later date.
On August 18, 2003, the Department of Health, Board of Physical Therapy Practice (Board) filed a motion requesting that DOAH Case Nos. 03-2940RX, 03-2941RX, 03-2942RX, 03-2943RX, and
03-2944RX be consolidated and that the rule challenge petitions filed in these cases be dismissed, with leave to amend. A hearing on the motion was held by telephone conference call that same date. On August 19, 2003, the undersigned issued an Order on Motion to Dismiss and Request for Consolidation, which provided, in pertinent part, as follows:
Pursuant to the agreement reached by the parties during th[e] telephone conference call [held on August 18, 2003], it is hereby ORDERED:
1. No later than ten days from the date of this order, the Petitioners in DOAH Case Nos. 03-2940RX, 03-2941RX, 03-2942RX, 03- 2943RX, and 03-2944RX shall each file an amended petition that meets the requirements of Section 120.56(1)(b), Florida Statutes, and requests relief that is available in a rule challenge proceeding, to wit: a declaration that the challenged rule provision is invalid, and no other relief.
2. DOAH Case Nos. 03-2940RX, 03-2941RX, 03-
2942RX, 03-2943RX, and 03-2944RX are
consolidated.
On August 20, 2003, the undersigned issued a Notice of Hearing scheduling the final hearing in these consolidated cases for Monday, September 15, 2003, as agreed to by the parties, and an Order of Pre-Hearing Instructions directing the parties, among other things, to file a pre-hearing stipulation.
On August 25, 2003, Petitioners filed a single Amended Request for Hearing and Relief in Accordance with Section 120.56 Fla. Stat., in which they jointly requested that the last sentence of Rule 64B17-3.003, Florida Administrative Code, be declared an "invalid exercise of delegated legislative authority" on the ground that "it enlarges, modifies or contravenes the specific provisions of § 486.081, Fla. Stat."
On August 29, 2003, the Board filed a motion requesting "reimbursement of reasonable attorney's fees to be determined in a subsequent proceeding and to be paid by Petitioners provided that Respondent is the prevailing party pursuant to section 57.105, Florida Statutes, as authorized by subsection 120.595(6), Florida Statutes, as amended by chapter 03-94, Laws of Florida."
On September 4, 2003, the parties filed their Pre-Hearing Stipulation, which read, in pertinent part, as follows:
COMES NOW Petitioners and Respondent Board, by and through their undersigned attorneys, and, pursuant to the Administrative Law
Judge's Order of August 20, 2003, stipulate as follows:
A concise statement of the nature of the controversy
Whether the last sentence of Rule 64B17- 3.003, F.A.C., which precludes an applicant from Florida licensure who has failed to pass the examination after five attempts is valid or is an invalid exercise of delegated legislative authority based on chapter 486, Florida Statutes, particularly the law implemented as set forth in section 486.081, Florida Statutes.
A brief general statement of each party's position
Petitioners contend that passing the national examination within five attempts is not authorized by statute for licensure by endorsement and enlarges, modifies, or contravenes the specific provisions of section 486.081, Florida Statutes.
Respondent Board contends to the contrary that the rule is within the discretion of the Board as authorized by the Legislature and is consistent with the intent of the Legislature.
* * *
A concise statement of those facts which are admitted and will require no proof at hearing
Petitioners filed applications for licensure in Florida as physical therapists and, after appearing before Respondent on September 19, 2003, [sic] each received a Notice of Intent to Deny licensure. Each Petitioner failed the national physical therapy examination six or more times and eventually passed the exam.
On August 2, 2002, at a public meeting held in Orlando, Florida, the members of Respondent Board, assuming they had the authority, had good reasons for unanimously voting to approve the amendment to the rule, including the last sentence thereof.
If Respondent had the statutory authority under section 4[8]6.081, Florida Statutes, to amend the rule, then the amendment to the rule including the last sentence of the rule is valid.
A concise statement of those issues of law on which there is agreement
Petitioners are substantially affected by the last sentence of Rule 64B17-3.003 as last amended in 2002, and have standing to challenge this amendment to the rule.
It is the legislative intent that physical therapy practitioners who fall below minimum competency or who otherwise present a danger to the public be prohibited from practicing in this state.
A concise statement of those issues of fact which remain to be litigated
Petitioners contend that there are no issues of fact to be litigated in view of Petitioners' admission that, if Respondent had the statutory authority for the rule, then it is otherwise valid. Respondent believes that the relevant facts include the foundation or basis for the challenged portion of the rule as well as the impact or effect of the amendment with regard to the high standards for licensure in Florida.
A concise statement of those issues of law which remain to be determined by the Judge
Whether Petitioners have met their burden and have proved that the last
sentence of Rule 64B17-3.003 was an inappropriate amendment to the rule because it enlarges, modifies or contravenes the statute.
Whether the Legislature intended that section 486.081, Florida Statutes, be considered in conjunction with other sections of the practice act including section 486.051, Florida Statutes, with regard to licensure and examination limitations.
Whether the language authorizing Respondent to determine if the standards for licensure in physical therapy in other jurisdictions are as high as those of this state includes limitations on the number of times that applicants for licensure by examination may take the national examination.
* * *
On September 8, 2003, Petitioners filed a Request for Attorney's Fee Relief, in which they asserted that, "[i]n accordance with section 120.595(3), Florida Statutes, if the Petitioners prevail, they are entitled to reasonable attorney's fees and costs against the [Board] absent the [Board] demonstrating that [its] actions were substantially justified or special circumstances exist which would make the award unjust."
As noted above, the final hearing in these consolidated cases was held, as scheduled, before the undersigned on September 15, 2003. Five witnesses testified at hearing: Petitioner Luz Marina Vilar; Petitioner Patricia Noriega; Petitioner Fabiola Pacheco; Dr. Martha Clendenin, chair of the
Board; and Dr. Linda Dean, a senior psychometrician with the Department of Health. In addition to the testimony of these five witnesses, eight exhibits were offered and received into evidence: Petitioners' Exhibits 1 through 5, and Respondent's Exhibits 1 through 3.
At the close of the evidentiary portion of the final hearing on September 15, 2003, the undersigned established, pursuant to the parties' request, the following deadline for the filing of proposed final orders: 20 days from the date of the filing of the transcript of the final hearing with the Division.1
The transcript of the final hearing was filed with the Division on September 30, 2003.
Petitioners jointly filed a Proposed Final Order on October 17, 2003. The Board filed its Proposed Final Order on October 20, 2003. The undersigned has carefully considered both of these post-hearing submittals.2
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:3
The "applications for licensure in Florida as physical therapists" that Petitioners filed were applications for licensure by endorsement.4
Their applications were denied because they each had failed the National Physical Therapy Examination (also known as the "NPTE") more than five times before finally passing the examination.
Prior to November 11, 2002, the Board's "Licensure by Endorsement" rule, Rule 64B17-3.003, Florida Administrative Code, provided as follows:
An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has passed an examination before a similar, lawful, authorized examining board in physical therapy in another state, the District of Columbia, a territory or a foreign country if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another state, the District of Columbia, a territory, or a foreign country are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider.
Effective November 11, 2002, the Board amended Rule 64B17-3.003, Florida Administrative Code, to read as follows:
An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has active licensure in another jurisdiction and has passed an examination
before a similar, lawful, authorized examining board in physical therapy in such other jurisdiction if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another jurisdiction are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider certified by the Department [of Health].[5] An applicant who has failed to pass the examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure.
No subsequent amendments have been made to Rule 64B17-3.003. The version of the rule that became effective November 11, 2002, is still in effect.
Section 486.081, Florida Statutes, is cited as the "law implemented" in the current of version Rule 64B17-3.003, Florida Administrative Code, as it was in the pre-November 11, 2002, version of the rule.
Florida, along with the other 49 states, the District of Columbia, and Puerto Rico, use the NPTE (the only national examination of its kind available in this country) to test the competency of candidates for licensure by examination to practice as physical therapists. Florida has used the NPTE since June of 1994, when the examination was certified.6 There is no "Florida-developed examination."
The Federation of State Boards of Physical Therapy is the "provider" of the NPTE.
The NPTE is a "criterion-based," minimum competency examination consisting of multiple-choice questions that is given only in English.7
It is designed to test whether candidates possess core skills basic to the practice of physical therapy, not their knowledge of the English language (although candidates "need a certain proficiency in English to fully understand the questions").
The examination is highly reliable in its measurement of entry-level knowledge in the discipline.
"From a psychometric and statistical [perspective],
[a] candidate would need to take the examination one time for [there to be] a very accurate estimate of [the candidate's competency]."
It is reasonable, however, to permit a limited number of "retakes," in light of the possibility that "luck" or some other factor unrelated to the candidate's competency may have negatively impacted the candidate's test results.
Allowing an "[u]nlimited number of retakes [of the NPTE]," though, diminishes the examination's reliability as a consequence of the "practice effect" and "repeat exposure" phenomena.
It is contrary to "nationally and generally accepted testing standards" and increases the risk that a candidate lacking the required skills will be able to pass the examination.
"[T]he number of times that Florida has set [for a candidate to take the NPTE] . . . is very ample and lenient."
CONCLUSIONS OF LAW
In these consolidated cases, Petitioners are challenging the last sentence of Rule 64B17-3.003, Florida Administrative Code,8 pursuant to Section 120.56, Florida Statutes, which allows substantially affected persons to challenge the facial validity of rules. See Fairfield Communities v. Florida Land and Water Adjudicatory Commission,
522 So. 2d 1012, 1014 (Fla. 1st DCA 1988)("At the outset, we note that we are being asked [in this appeal of a final order of a Division hearing officer in a rule challenge proceeding] to determine the facial validity of these two rules [being challenged], not to determine their validity as applied to specific facts, or whether the agency has placed an erroneous construction on them."); and Advantage Therapy and Nursing Center (Beverly Health and Rehabilitative Services, Inc.) v. Agency for Health Care Administration, Case No. 97-1625RX, 1997 WL 1053289 (Fla. DOAH July 29, 1997)(Final Order)("Additionally,
in a rule challenge, the issue to be determined is whether the rule, either proposed or adopted, is valid on its face.").
Section 120.56, Florida Statutes, provides, in pertinent part, as follows:
GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A RULE OR A PROPOSED RULE.--
Any person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.
The petition seeking an administrative determination must state with particularity the provisions alleged to be invalid with sufficient explanation of the facts or grounds for the alleged invalidity and facts sufficient to show that the person challenging a rule is substantially affected by it, or that the person challenging a proposed rule would be substantially affected by it.
The petition shall be filed with the division which shall, immediately upon filing, forward copies to the agency whose rule is challenged, the Department of State, and the committee. Within 10 days after receiving the petition, the division director shall, if the petition complies with the requirements of paragraph (b), assign an administrative law judge who shall conduct a hearing within 30 days thereafter, unless the petition is withdrawn or a continuance is granted by agreement of the parties or for good cause shown. . . .
Within 30 days after the hearing, the administrative law judge shall render a decision and state the reasons therefor in writing. The division shall forthwith
transmit copies of the administrative law judge's decision to the agency, the Department of State, and the committee.
Hearings held under this section shall be de novo in nature. The standard of proof shall be the preponderance of the evidence. Hearings shall be conducted in the same manner as provided by ss. 120.569 and 120.57, except that the administrative law judge's order shall be final agency action. The petitioner and the agency whose rule is challenged shall be adverse parties. . . .
* * *
CHALLENGING EXISTING RULES; SPECIAL PROVISIONS.--
A substantially affected person may seek an administrative determination of the invalidity of an existing rule at any time during the existence of the rule. The petitioner has a burden of proving by a preponderance of the evidence that the existing rule is an invalid exercise of delegated legislative authority as to the objections raised.
The administrative law judge may declare all or part of a rule invalid. The rule or part thereof declared invalid shall become void when the time for filing an appeal expires. The agency whose rule has been declared invalid in whole or part shall give notice of the decision in the Florida Administrative Weekly in the first available issue after the rule has become void.
An existing rule may be challenged pursuant to Section 120.56, Florida Statutes, only on the ground that it is an "invalid exercise of delegated legislative authority." An Administrative Law Judge is without authority to declare a
existing rule invalid on any other basis. To do so would be an impermissible extension of the Administrative Law Judge's authority beyond the boundaries established by the Legislature. See Schiffman v. Department of Professional Regulation, Board of Pharmacy, 581 So. 2d 1375, 1379 (Fla. 1st DCA 1991) ("An administrative agency has only the authority that the legislature has conferred it by statute."); Lewis Oil Co., Inc. v. Alachua County, 496 So. 2d 184, 189 (Fla. 1st DCA 1986)("Administrative agencies have only the powers delegated by statute."); and Fiat Motors of North America, Inc. v. Calvin,
356 So. 2d 908, 909 (Fla. 1st DCA 1978)("Administrative agencies are creatures of statute and have only such powers as statutes confer."). For example, an Administrative Law Judge may not invalidate an existing rule simply because, in the Judge's opinion, it does not represent the wisest or best policy choice. See Board of Trustees of Internal Improvement Trust Fund v. Levy, 656 So. 2d 1359, 1364 (Fla. 1st DCA 1995)("The issue before the hearing officer in this [rule challenge] case was not whether the Trustees made the best choice in limiting the lengths of docks within the preserve, or whether their choice is one that the appellee finds desirable for his particular location."); and Dravo Basic Materials Co., Inc. v. State,
Department of Transportation, 602 So. 2d 632, 634 (Fla. 2d DCA 1992)("Dravo's frustration is understandable. It may well be
that it could provide a quality product to the point of use under some other adequate and economical test procedures. It may well be that this additional competition would help reduce the cost of highways in Florida. It is not our task, however, to write the best rule for DOT. That was not the task of the hearing officer."); cf. Rollins v. Pizzarelli, 761 So. 2d 294,
298 (Fla. 2000)("An interpretation of a statutory term cannot be based on this Court's own view of the best policy.").
As the First District Court of Appeal observed in Southwest Florida Water Management District v. Save the Manatee
Club, Inc., 773 So. 2d 594, 597-98 (Fla. 1st DCA 2000):
This phrase ["invalid exercise of delegated legislative authority," as used in Section 120.56, Florida Statutes] is defined in section 120.52(8), Florida Statutes, as an "action that goes beyond the powers, functions, and duties delegated by the Legislature." Section 120.52(8) then lists seven circumstances in which a rule is an invalid exercise of delegated legislative authority: . . .
In addition to the seven enumerated grounds for challenging a rule, section 120.52(8) provides a set of general standards to be used in determining the validity of a rule in all cases. These standards are contained in the closing paragraph of the
statute. . . .
In these consolidated cases, Petitioners contend that the last sentence of Rule 64B17-3.003, Florida Administrative Code, is an "invalid exercise of delegated legislative
authority," within the meaning of Section 120.52(8)(c), which provides as follows:
"Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:
* * *
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s.
120.54(3)(a)1.
"Under section 120.52(8)(c), the test is whether
a . . . rule gives effect to a 'specific law to be implemented,' and whether the . . . rule implements or interprets 'specific powers and duties.'" Board of Trustees of Internal Improvement Trust Fund v. Day Cruise Association, Inc., 794 So. 2d 696, 704 (Fla. 1st DCA 2001). "Logic dictates that the closer the rule tracks the statute, the less likely it modifies or contravenes the statute [within the meaning of Section 120.52(8)(c)]. The language need not be identical, however, as there would be no need for the rule." The Sierra Club v. St. Johns River Water Management District, 816 So. 2d 687, 692 (Fla. 5th DCA 2002).
Section 120.52(8)(c), Florida Statutes, must be read in pari materia with the "closing paragraph of the statute,"
which is known as the "flush left paragraph"9 and provides as follows:
A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the same statute.
The "flush left paragraph" was last amended in 1999.
Its evolution was discussed by the First District Court of Appeal in Board of Trustees of Internal Improvement Trust Fund v. Day Cruise Association, Inc., 794 So. 2d at 698-700:
Recent amendments to the APA have tightened and clarified rulemaking restrictions. In 1996, the Legislature enacted the following:[10]
"A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement, interpret, or make specific the particular powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule
only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than the particular powers and duties conferred by the same statute."
Ch. 96-159, § 3, at 152, Laws of Fla. (codified at § 120.52(8), Fla. Stat. (Supp. 1996)). The precise effect of this then new statutory language was at least originally a matter of some debate. We considered the import of the 1996 amendments in St. Johns River Water Mgmt. Dist. v. Consolidated- Tomoka Land Co., 717 So. 2d 72, 80 (Fla. 1st DCA 1998)(interpreting "particular" as requiring only that a (proposed) rule be "within the range of powers" statutorily granted to the agency, and deeming (proposed) rules valid if "within the class of powers and duties identified in the statute to be implemented"), rev. denied, 727 So. 2d 904 (Fla. 1999). But see Dep't of Bus. & Prof'l Regulation v. Calder Race Course, Inc., 724 So. 2d 100, 102 (Fla. 1st DCA 1998)(applying the 1996 amendments in invalidating as beyond the scope of the enabling statute an agency rule that would have allowed warrantless searches at a pari- mutuel facility); St. Petersburg Kennel Club v. Dep't of Bus. & Prof'l Regulation, 719 So. 2d 1210, 1211 (Fla. 2d DCA
1998)(applying the 1996 amendments in invalidating rules defining poker because the enabling statute did not specifically authorize them).
In apparent response to the decision in Consolidated-Tomoka, the Legislature again amended section 120.52(8) in 1999, stating its intent "to clarify the limited authority
of agencies to adopt rules in accordance with chapter 96-159, Laws of Florida,
and . . . to reject the class of powers and duties analysis." Ch. 99 379, § 1, at 3789, Laws of Fla. The legislative history of the 1999 amendments reflects a legislative intent that the standard for agency rulemaking be more restrictive than the standard explicated in what the Legislature deemed inappropriately broad judicial interpretations of the 1996 amendments to the APA, expressly including Consolidated- Tomoka:
"[The bill] rejects a judicial interpretation of this standard which created a functional test to determine whether a challenged agency rule is directly within the class of powers and duties identified in the statute to be implemented." [specifically citing Consolidated-Tomoka]
Fla. H.R. Comm. on Govtl. Rules & Regs., CS/HB 107 (1999)(ch. 99-379, Laws of Fla.)
Final Staff Analysis 5 (June 30, 1999); see also Kent Wetherell, Sour Grapes Make Sweet Wine, Fla. Bar Environ. and Land Use Law Section, Section Reporter, (Dec. 1999)
<http://www.eluls.org/dec1999-- wetherell.html> ("Consolidated-Tomoka . . . did not survive the legislative session following its rendition as it was effectively overruled[11] by legislation adopted in the 1999 Session. . . . The 1999 legislation explicitly rejects the 'class of powers and duties' test created by the court in Consolidated-Tomoka. . . ."). "[T]he Legislature has rejected the standard we adopted in Consolidated-Tomoka." Southwest Florida Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So. 2d 594, 599 (Fla. 1st DCA 2000).
Implementing this legislative intent to cabin agency rulemaking authority, the 1999 Legislature amended the "flush left"
paragraph of section 120.52(8) and parallel language in section 120.536(1), by replacing the phrase "particular powers and duties" with the phrase "specific powers and duties," and by expressly rejecting the judicial "class of powers and duties"
gloss . . . .
The court went on to state that, "[u]nder the 1996 and 1999 amendments to the APA, it is now clear, agencies have rulemaking authority only where the Legislature has enacted a specific statute, and authorized the agency to implement it, and then only if the . . . rule implements or interprets specific powers or duties, as opposed to improvising in an area that can be said to fall only generally within some class of powers or duties the Legislature has conferred on the agency." Id. at 700. Finding that the proposed rule at issue "would not implement specific enabling legislation (or any specific constitutional power or duty) as contemplated by section 120.52(8)(c)," the court affirmed the invalidation of the proposed rule. Id. at 704. On Motion for Clarification, Rehearing, Certification, or Rehearing En Banc, the Court rejected the Trustees' argument that its decision conflicted with Southwest Florida Water Management District v. Save the Manatee Club, Inc., 773 So. 2d at 598, and it reiterated the following statement it had made in Save the Manatee Club:
The question is whether the statute contains a specific grant of legislative authority for the rule, not whether the grant of
authority is specific enough. Either the enabling statute authorizes the rule at issue or it does not. . . . [T]his question is one that must be determined on a case-by- case basis.
Board of Trustees of Internal Improvement Trust Fund v. Day Cruise Association, Inc., 798 So. 2d 847 (Fla. 1st DCA 2001). Subsequently, in Board of Medicine v. Florida Academy of
Cosmetic Surgery, Inc., 808 So. 2d 243, 253 (Fla. 1st DCA 2002), the Court again quoted language it had used in Save the Manatee Club:
"[T]he authority to adopt an administrative rule must be based on an explicit power or duty identified in the enabling statute.
Otherwise, the rule is not a valid exercise of delegated legislative authority." Southwest Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So. 2d 594, 599 (Fla. 1st DCA 2000). Moreover, "the authority for an administrative rule is not a matter of degree. The question is whether the statute contains a specific grant of legislative authority for the rule, not whether the grant of authority is specific enough." Id. (emphasis in original).
See also Hennessey v. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, 818 So. 2d 697, 701 (Fla. 1st DCA 2002), a more recent First District Court of Appeal opinion concerning the scope of agency rulemaking authority, wherein the court once again repeated language it had used in Save the Manatee Club:
[S]ubsequent to the amendment [in 1999 of Section 120.52(8), Florida Statutes], an
agency can only adopt rules which implement or interpret specific powers and duties granted by the enabling statute:
"[I]t is clear that the authority to adopt an administrative rule must be based on an explicit power or duty identified in the enabling statute. Otherwise the rule is not a valid exercise of delegated legislative authority."
Id. at 599. In Save the Manatee, we expressly found that in reviewing for the specific authority for a rule, the issue is not whether the grant of authority is "specific enough," but whether the enabling statute grants legislative authority for the rule at issue . . . ;
and Frandsen v. Department of Environmental Protection, 829 So. 2d 267, 269 (Fla. 1st DCA 2002), an even more recent case, in which the First District Court of Appeal reiterated that "[t]he question is whether the statute contains a specific grant of legislative authority for the rule, not whether the grant of authority is specific enough."
Having "[c]onsider[ed] Section 120.52(8), Florida Statutes, in conjunction with the trilogy of [Save the] Manatee Club, Day Cruise, and Cosmetic Surgery," Administrative Law Judge John G. Van Laningham, in his Final Order in Food Safety Training, Inc. v. Department of Business and Professional Regulation, Division of Hotels and Restaurants, Case No. 01- 3753RP (Fla. DOAH February 14, 2002), "articulate[d] [the
appropriate] analytical framework for resolving questions regarding rulemaking authority" in a rule challenge case:
The threshold question, of course, is whether the agency has been delegated the power to make rules. That issue will rarely be disputed since most agencies have been granted general rulemaking powers.[12] As both Manatee Club and Day Cruise make clear, however, if the agency has been empowered or directed specifically to make particular rules or kinds of rules, it will be necessary, in defining the specific powers or duties delegated to the agency, to pay close attention to any pertinent restrictions or limitations on the agency’s rulemaking authority.
After it has been determined that the agency has the necessary grant of rulemaking authority, the next question is: What is the specific power or specific duty that the agency claims to have implemented or interpreted through the challenged rule? Logically, one needs to know what to look for before searching the enabling statute for the requisite grant. Ordinarily, it will be possible to derive the specific power or duty claimed from studying the language of the challenged rule. However, it must be recognized that the framing of the power or duty is potentially outcome- determinative. . . . In defining the power or duty, one must be careful to avoid begging the question.
The next analytical step is to examine the enabling statute to determine whether the specific power or duty claimed by the agency is among the specific powers or duties delegated by the legislature. As Cosmetic Surgery demonstrates, this step may involve statutory interpretation. In addition, it is here that any qualifications or limitations on the agency’s rulemaking power must be taken into account. If the
enabling statute, properly interpreted, either does not contain the specific power or duty claimed, or contains limitations or qualifications that are incompatible with the existing or proposed rule, then the rule is invalid.[13]
If, on the other hand, the specific power or duty claimed has indeed been granted to the agency, then the last question is whether the rule at issue implements or interprets such power or duty. Where the power or duty claimed was defined by derivation from the rule, the conclusion here will probably be foregone. This step, however, cannot be overlooked, for a rule, to be valid, must implement or interpret the specific powers granted.
In applying this "analytical framework," as Judge Van Laningham suggested, it is necessary for the Administrative Law Judge to attempt to understand the meaning of the statutory provisions relied upon by the agency (as "rulemaking authority" and the "law implemented"). If these statutory provisions are among those the agency is specifically responsible for administering, the agency's construction of these provisions (as incorporated in the rule) "should be upheld when it is within the range of permissible interpretations." Board of Podiatric
Medicine v. Florida Medical Association, 779 So. 2d 658, 660 (Fla. 1st DCA 2001). The agency's construction need not be the sole possible construction, or even the most desirable one, but must only be within the range of possible constructions. See
Orange Park Kennel Club, Inc., v. Department of Business and
Professional Regulation, 644 So. 2d 574, 576 (Fla. 1st DCA 1994); Florida League of Cities v. Department of Environmental
Regulation, 603 So. 2d 1363, 1369 (Fla. 1st DCA 1992); Escambia
County v. Trans Pac, 584 So. 2d 603, 605 (Fla. 1st DCA 1991); and Department of Professional Regulation v. Durrani, 455 So. 2d 515, 517 (Fla. 1st DCA 1984).14
While it is true that "[t]he provisions of statutes enacted in the public interest should be given a liberal construction in favor of the public," the Administrative Law Judge must recognize that it is for the agency, in implementing the statute, to determine how, within the parameters set by the Legislature, the public interest is best served and that the agency's determination in this regard "is entitled to great weight and should not be overturned unless clearly erroneous." Department of Environmental Regulation v. Goldring, 477 So. 2d 532, 534 (Fla. 1985); and Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So. 2d 716, 719 (Fla. 1983); see also Orange County Industrial Development Authority
v. State, 427 So. 2d 174, 181 (Fla. 1983)("The Federal Communications Commission's judgment regarding how the public interest is best served is entitled to substantial judicial deference."); AT&T Corp. v. F.C.C., 220 F.3d 607, 621 (D.C. Cir. 2000), quoting from FDA v. Brown Williamson Tobacco Corp., 120
S. Ct. 1291, 1300 (2000)("In making this determination, we
afford substantial deference to the agency's interpretation of the statute because 'the responsibilities for assessing the wisdom of . . . policy choices and resolving the struggle between competing views of the public interest are not judicial ones, and because of the agency's greater familiarity with the ever-changing facts and circumstances surrounding the subjects regulated.'"); Arkansas AFL-CIO v. F.C.C., 11 F.3d 1430, 1441 (8th Cir. 1993)("As long as the interpretation proposed by the agency is reasonable, a reviewing court cannot replace the agency's judgment with its own. Therefore, we cannot balance policy considerations, or choose among competing interests when evaluating the reasonableness of an agency action."); and Holmes v. Helms, 705 F.2d 343, 347 (9th Cir 1983)("This court cannot reverse the agency decision simply because it might believe that the public interest could best be served by a different decision.").
"Legislative intent is the 'polestar' in interpretation of statutory provisions." Blinn v. Florida
Department of Transportation, 781 So. 2d 1103, 1107 (Fla. 1st DCA 2000). Accordingly, an agency's construction of a statute that is contrary to the plain legislative intent is not entitled to any deference and must be rejected.
"Legislative intent must be derived primarily from the words expressed in the statute. If the language of the statute
is clear and unambiguous," these words must be given effect. Florida Department of Revenue v. Florida Municipal Power Agency, 789 So. 2d 320, 323 (Fla. 2001). In attempting to ascertain the meaning of statutory language (and thereby legislative intent), the entire statute, along with related provisions, must be examined. See Woodham v. Blue Cross and Blue Shield of Florida,
Inc., 829 So. 2d 891, 899 (Fla. 2002)("The resolution of this issue is properly reached by adherence to the rule of statutory construction that related statutory provisions must be read together to achieve a consistent whole."); Florida Jai Alai,
Inc., v. Lake Howell Water and Reclamation District, 274 So. 2d 522, 524 (Fla. 1973)("Legislative intent should be gathered from consideration of the statute as a whole rather than from any one part thereof."); Barrington v. State, 199 So. 320 (Fla.
1941)("'The statute must be read with reference to its manifest intent and spirit and cannot be limited to the literal meaning of a single word. It must be construed as a whole and interpreted according to the sense in which the words are employed, regard being had to the plain intention of the Legislature.'"); Grant v. State, 832 So. 2d 770, 773 (Fla. 5th DCA 2002)("We observe the basic rule of statutory construction that statutes, which relate to the same or closely related subjects or objects, are regarded as in pari materia, and must be construed together and compared with each other.");
Fleischman v. Department of Professional Regulation, 441 So. 2d 1121, 1123 (Fla. 3d DCA 1983)("Every statute must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts."); and Weitzel v. State, 306 So. 2d 188, 192 (Fla.
1st DCA 1974)("It is fundamental that words, phrases, clauses, sentences and paragraphs of a statute may not be construed in isolation, but that on the contrary a statute must be construed in its entirety."). Furthermore, the Administrative Law Judge should be guided by common sense. See Dorsey v. State, 402 So. 2d 1178, 1183 (Fla. 1981)("The definition of wire communications contained in section 934.02 must be interpreted in a common sense and reasonable manner."); Perez v. Perez, 769 So. 2d 389, 393, n.7 (Fla. 3d DCA 1999)("Our interpretation is
consistent . . . with common sense."); Florida Department of Business and Professional Regulation v. Investment Corp. of Palm Beach, 747 So. 2d 374, 385 n.10 (Fla. 1999), quoting from Mackey v. Household Bank, F.S.B., 677 So. 2d 1295, 1298 (Fla. 4th DCA 1996)("In recently rejecting a similarly tortured statutory construction, the Fourth District sagely advised: 'Laws should be enforced with common sense and applied without losing sight of the legislative purpose behind their enactment. To do otherwise is to generate disrespect for the law by creating a morass of technical regulations with no connection to human
experience.'"); and Pensacola Associates v. Biggs Sporting Goods Co., 353 So. 2d 944. 947 (Fla. 1st DCA 1978)("Statutes are interpreted in the light of reason and common sense ").
The Administrative Law Judge must not only construe the statutory provision(s) relied upon by the agency in adopting the rule provision under attack, but must also ascertain the meaning of the challenged rule provision(s) as well. In doing so, the Administrative Law Judge is obligated to accept the agency's interpretation of its own rule15 unless the agency's interpretation is not within the range of possible interpretations given the language used and therefore is clearly erroneous. See Falk v. Beard, 614 So. 2d 1086, 1089 (Fla. 1993); Citizens of State of Florida v. Wilson, 568 So. 2d 1267, 1271 (Fla. 1990); Miles v. Florida A and M University, 813 So. 2d 242, 245 (Fla. 1st DCA 2002); State v. Sun Gardens Citrus, LLP, 780 So. 2d 922, 925 (Fla. 2d DCA 2001); Purvis v. Marion County School Board, 766 So. 2d 492, 498-99 (Fla. 5th DCA 2000); and Kearse v. Department of Health and Rehabilitative Services,
474 So. 2d at 820.
The rule provision that is being challenged in these consolidated cases, the last sentence of Rule 64B17-3.003, Florida Administrative Code, is the product of rulemaking engaged in by the Board, a state agency16 created by Chapter 486, Florida Statutes, also known as the "Physical Therapy Practice
Act." See §§ 486.011 and 486.023(1), Fla. Stat. According to Section 486.015, Florida Statutes, the Legislature's
"sole . . . purpose in enacting this chapter [was] to ensure that every physical therapy practitioner practicing in this state meets minimum requirements for safe practice." Section
486.015 further provides that it was "the legislative intent that physical therapy practitioners who fall below minimum competency or who otherwise present a danger to the public be prohibited from practicing in this state."
Section 486.028, Florida Statutes, mandates that "[n]o person shall practice, or hold herself or himself out as being able to practice, physical therapy in this state unless she or he is licensed in accordance with the provisions of this chapter."
The Board is responsible for administering and enforcing these licensing provisions, and it has been given the authority, in Section 486.025, Florida Statutes, to "adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the[s]e provisions," which include Sections 486.031, 486.051, and 486.081, Florida Statutes.
Section 486.031, Florida Statutes, as its title indicates,17 describes the "licensing requirements" for physical therapists and provides as follows:
To be eligible for licensing as a physical therapist, an applicant must:
Be at least 18 years old;
Be of good moral character; and
(3)(a) Have been graduated from a school of physical therapy which has been approved for the educational preparation of physical therapists by the appropriate accrediting agency recognized by the Commission on Recognition of Postsecondary Accreditation or the United States Department of Education at the time of her or his graduation and have passed, to the satisfaction of the board, the American Registry Examination prior to 1971 or a national examination approved by the board to determine her or his fitness for practice as a physical therapist as hereinafter provided;
Have received a diploma from a program in physical therapy in a foreign country and have educational credentials deemed equivalent to those required for the educational preparation of physical therapists in this country, as recognized by the appropriate agency as identified by the board, and have passed to the satisfaction of the board an examination to determine her or his fitness for practice as a physical therapist as hereinafter provided; or
Be entitled to licensure without examination as provided in s. 486.01.
Section 486.051, Florida Statutes, further addresses licensure by examination. It is entitled, "Physical therapist; examination of applicant," and provides as follows:
The examinations of an applicant for licensing as a physical therapist shall be in accordance with rules adopted by the board, to test the applicant's
qualifications and shall include the taking of a test by the applicant. If an applicant fails to pass the examination in three attempts, the applicant shall not be eligible for reexamination unless she or he completes additional educational or training requirements prescribed by the board. An applicant who has completed the additional educational or training requirements prescribed by the board may take the examination on two more occasions. If the applicant has failed to pass the examination after five attempts, she or he is no longer eligible to take the examination.
Section 486.081, Florida Statutes, further addresses "licensure without examination."18 It is entitled, "Physical therapist; issuance of license without examination to person passing examination of another authorized examining board; fee." Subsection (1) of the statute provides, in pertinent part, as follows:
The board may cause a license to be issued through the department without examination to any applicant who presents evidence satisfactory to the board of having passed the American Registry Examination prior to 1971 or an examination in physical therapy before a similar lawfully authorized examining board of another state, the District of Columbia, a territory, or a foreign country, if the standards for licensure in physical therapy in such other state, district, territory, or foreign country are determined by the board to be as high as those of this state, as established by rules adopted pursuant to this
chapter. . . .
A plain reading of Section 486.081(1), Florida Statutes, reveals that that the Legislature has imposed upon the
Board, in those cases where licensure is being sought based upon the applicant's having passed "an examination in physical therapy before a similar lawfully authorized examining board" of another jurisdiction,19 the specific duty of determining whether the "standards for licensure in physical therapy" of such other jurisdiction are "as high as those of this state, as established by rules adopted pursuant to [Chapter 486, Florida Statutes]."
By adding to Rule 64B17-3.003, Florida Administrative Code, the language found in the last sentence of the rule, the Board has given clear notice that it will deem the "standards for licensure in physical therapy" of another jurisdiction not "as high of those of this state," within the meaning of Section 486.081(1), Florida Statutes, if the applicant, like Petitioners in these consolidated cases, was able to obtain his or her license to practice physical therapy in such other jurisdiction despite having "failed to pass the [NPTE] after five attempts, regardless of the jurisdiction through which the examination was taken."
This rule provision, adopted pursuant to the general rulemaking authority granted the Board in Section 486.025, Florida Statutes, gives effect to and implements the specific "standards"-assessing duty, discussed above, that the Board has been delegated by the Legislature in Section 486.081(1), Florida Statutes, and does so in a manner that does not enlarge, modify
or contravene, but rather complements and is consistent with, Section 486.081(1), as reasonably construed.
The "standards for licensure in physical therapy" that an applicant for licensure by examination in Florida must meet are set forth in rule provisions found in Rule Chapter 64B17-3, Florida Administrative Code.
Rule 64B17-3.001, Florida Administrative Code, which provides as follows, contains such "standards":
Every physical therapist who applies for licensure by examination shall satisfy and demonstrate to the Board that the applicant:
Is eighteen years old.
Possesses good moral character.
Has received a degree in physical therapy from an institution that has been approved for the training of physical therapists by the Commission on Accreditation for Physical Therapy Education (CAPTE), at the time of graduation.
For foreign graduates has received a determination that the credentials are equivalent to education required for licensure as a physical therapist in the United States. Educational credentials equivalent to those required for the education and preparation of physical therapists in this country shall be determined by the Federation of State Boards of Physical Therapy (FSBPT) or any other Board approved credentialing agency that meets at least the following criteria:
Has a comprehensive, standardized orientation and training program for all reviewers who must be experienced and
knowledgeable in the area of physical therapy education.
Has an audit and quality assurance or review committee that regularly meets to monitor the evaluation process and to provide random audits of the credentials reviews.
Uses the Foreign Credentialing Commission on Physical Therapy (FCCPT) coursework evaluation tool.
Employs full time staff support including an international expert in General Education credential equivalency and analysis.
Has an updated, current, and comprehensive resource document library available for reference.
Is recognized to perform visa screening by the Immigration and Naturalization Service of the federal government.
Uses two independent physical therapists to perform the professional education component of the credentials reviews.
Uses original documentation from the institution with institutional seals and signatures and does not permit notarized copies of transcripts or course descriptions for credentials reviews.
Has attained and submitted to the Board the following:
A minimum of 75 professional education credits.
A minimum of 60 general education credits.
Evidence of successful completion of a
Board approved English proficiency examination if English was not the language of instruction as evidenced by a minimum score of 220 on the computer based test or
560 on the paper test version of the Test of English as a Foreign Language (TOEFL) and
4.5 on the test of written English (TWE) and
50 on the test of spoken English (TSE).
A report from the credentialing agency, in which the educational expert or physical therapist evaluator is not affiliated with the institutions or individuals under review, interpreting the foreign credentials in terms of educational equivalency in the United States.
At a minimum, the report shall contain the following information:
A clear and definitive statement as to whether the education is equivalent to a CAPTE-accredited physical therapy educational program.
Whether the institution is accredited by any governmental agency and, if so, which agency.
A list of courses in general education and professional education with the United States post-secondary equivalent course indicated.
All opinions contained in the report shall be substantiated by reference to the source materials which form the basis for the opinion.
Rule 64B17-3.001, Florida Administrative Code, is not the only rule in Rule Chapter 64B17-3 containing such "standards." Rule 64B17-3.002, Florida Administrative Code, also prescribes "standards" for licensure by examination in Florida.20 It provides, in pertinent part, as follows:
The licensure examination for physical therapy administered by the Department shall be the national physical therapy examination approved by the Federation of State Boards of Physical Therapy through the designated agency providing such examination.
In order to achieve a passing score on the examination, an applicant must obtain a score equal to or greater than the criterion-referenced score determined by the agency providing the national physical therapy examination.
An applicant must reapply in order to retake the examination. If an applicant wishes to take the examination for the fourth time, the applicant must submit to the Board for approval satisfactory evidence of having successfully completed the following since the last taking of the examination: successful completion of a course of study or internship designed to prepare the applicant for the physical therapy examination. An applicant who has completed these additional requirements may take the examination on two more occasions.
This rule, which implements Section 486.051, Florida Statutes, designates the NPTE as the national examination that applicants for licensure by examination in Florida (who have not passed the American Registry Examination prior to 1971) must pass in order to be eligible for such licensure, and, in addition, limits to five the number of times an applicant may take the examination.21 Such being the case, the "standards for licensure in physical therapy" of another jurisdiction can reasonably be said to be, for purposes of Section 486.081(1), Florida Statutes, not "as high as those of this state, as
established by [Board] rules adopted pursuant to [Chapter 486, Florida Statutes]," if they do not likewise provide that licensure is unavailable to applicants who have not been able to pass the NPTE after five tries.22 See Binkley v. Zollar, 681 N.E.2d 153, 155 156 (Ill. App. 1997), a case that involved the question of the consistency with "legislative intent with regard to licensing" of an Illinois state agency rule providing that "passage of the examination [the National Council Licensure Examination for Registered Nurses] within three years from the date that it is first taken 'shall be a requirement for Illinois nurse licensure by endorsement,'" wherein it was stated:
Because the practice of professional nursing affects the public health, safety, and welfare, the legislature declared it to be subject to regulation and control (225 ILCS 65/2 (West 1994)), and authorized the Department to promulgate rules to implement, interpret, or make specific the provisions and purposes of the Act (225 ILCS 65/10(a) (West 1994)). The Department has interpreted section 19 of the Act to mean that licensure by endorsement is not available to a person who, although licensed by examination as a registered professional nurse in another jurisdiction, would have been ineligible for licensure by examination in this State by reason of our stricter requirements. In furtherance of that interpretation, the Department promulgated a regulation making the three-year rule of section 15 of the Act applicable to those seeking licensure by endorsement under section 19. We believe that such an interpretation is both reasonable and consistent with the purposes of the Act.
The primary rule of statutory construction, to which all other rules of construction are subordinate, is to determine and give effect to the intent of the legislature. People ex rel. Baker v. Cowlin, 154 Ill.2d 193, 180
Ill.Dec. 738, 607 N.E.2d 1251 (1992). In
determining the intent of the legislature, courts should first consider the language of the statute and, where that language is clear, it should be given effect without resorting to other aids for construction.
Baker, 154 Ill.2d at 197, 180 Ill.Dec. 738, 607 N.E.2d 1251. By clear and unambiguous language, section 15 of the Act imposes a three-year period within which a person must pass an examination in order to be licensed as a registered professional nurse by examination in Illinois. Section 19 of the Act, also by clear and unambiguous language, provides for licensure by endorsement, but only if the applicant is licensed by examination in another jurisdiction that imposes requirements for licensure that are substantially equal to those in force in Illinois.
A state that permits a person to take a licensing examination an unlimited number of times until passage can hardly be said to have substantially equal requirements as a state, such as Illinois, which limits the period within which a applicant must pass a licensing examination to three years and, in the event that the applicant fails to pass the examination within such a period, requires proof of further study. It would be an anomaly for Illinois to require applicants for a license by examination to pass a licensing examination within three years, but permit others who failed to pass the very same examination within three years to be licensed by endorsement. Such an interpretation would encourage Illinois residents unable to pass the NCLEX within a three-year period, like the plaintiff in this case and the plaintiff in Murry, to cross into a neighboring state that has no
comparable three-year rule, take the examination as many times as is necessary in order to pass, obtain a license to practice as a registered professional nurse in such a jurisdiction, and then apply for licensure in Illinois by endorsement, thereby effectively avoiding the requirements of section 15 of the Act. Either the ability to pass a licensing examination within three years reflects on one's ability to practice as a registered professional nurse, or it does not. Our legislature thinks that it does (see 225 ILCS 65/15 (West 1994)), and the Department's interpretation of section
19 of the Act in this case is wholly consistent with that legislative determination and the plain language of the statute.
It follows that the last sentence of Rule 64B17-3.003, Florida Administrative Code (which represents the formal codification of this reasonable determination made by the Board, in connection with its "standards"-assessing duty specified in Section 486.081, Florida Statutes, that any jurisdiction that permits licensure of an applicant who has failed the NPTE five times or more has lower "standards for licensure in physical therapy" than those in effect in Florida), is not an "invalid exercise of delegated legislative authority," within the meaning of Section 120.52(8)(c), Florida Statutes, contrary to the allegation made by Petitioners in their Amended Request for Hearing and Relief in Accordance with Section 120.56 Fla. Stat.
In view of the foregoing, Petitioners' Amended Request for Hearing and Relief in Accordance with Section 120.56 Fla. Stat. is dismissed.
Inasmuch as Petitioners have not met their burden of establishing that the last sentence of Rule 64B17-3.003, Florida Administrative Code, is an "invalid exercise of delegated legislative authority," within the meaning of Section 120.52(8)(c), Florida Statutes, their Request for Attorney's Fee Relief, in which they seek attorney's fees and costs pursuant to Section 120.595(3), Florida Statutes, is denied.
There remains for consideration and disposition the Board's motion requesting "reimbursement of reasonable attorney's fees." The Board is seeking such an award "pursuant to section 57.105, Florida Statutes, as authorized by subsection 120.595(6), Florida Statutes, as amended by chapter 03-94, Laws of Florida." In support of its request, the Board contends that "Petitioners knew or should have known that their claims are not supported by material facts or by the application of the existing law to any material facts," clarifying that it "is not asserting that Petitioners' attorney is acting other than in good faith."
Section 57.105, Florida Statutes, provides, in pertinent part, as follows:
Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
Was not supported by the material facts necessary to establish the claim or defense; or
Would not be supported by the application of then-existing law to those material facts.
However, the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney's fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.
Paragraph (1)(b) does not apply if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.
* * *
In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney's fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party's attorney or qualified
representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to s.
120.68. . . .
The provisions of this section are supplemental to other sanctions or remedies available under law or under court rules.
* * *
Section 120.595(6), Florida Statutes, provides as follows:
OTHER SECTIONS NOT AFFECTED.--Other
provisions, including ss. 57.105 and 57.111, authorize the award of attorney's fees and costs in administrative proceedings.
Nothing in this section[23] shall affect the availability of attorney's fees and costs as provided in those sections.
Section 120.595(6), like Section 57.107(5), took effect, as a result of the enactment of Chapter 2003-94, on June 4, 2003, which was prior to the filing of Petitioners' rule challenge petitions in these consolidated cases.
The legal issue that Petitioners have raised in these consolidated cases concerning the validity of the last sentence of Rule 64B17-3.003, Florida Administrative Code, is one of first impression that is open to reasonable debate. While Petitioners have not persuaded the undersigned that they should prevail on this issue, they could not have reasonably known, at any time prior to hearing, that such an outcome was inevitable. Under such circumstances, they should not be subjected to an award of attorney's fees pursuant to Section 57.105, Florida
Statutes, for advancing their challenge. The Board's motion requesting "reimbursement of reasonable attorney's fees" is therefore denied.
DONE AND ORDERED this 24th day of October, 2003, in Tallahassee, Leon County, Florida.
S
STUART M. LERNER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2003.
ENDNOTES
1/ The parties indicated that, if given the amount of time they had requested to file their proposed final orders, "they would be agreeable to giving [the undersigned] 30 days from the
date . . . the last proposed final order [was] filed to [issue the] final order" in these cases.
2/ Unless otherwise indicated, citations to Florida Statutes in this Final Order are to Florida Statutes (2003).
3/ The undersigned has accepted these factual stipulations, except to the extent that they reflect that Petitioners appeared before the Board on September 19, 2003. See Gunn Plumbing, Inc. v. The Dania Bank, 252 So. 2d 1, 4 (Fla. 1971)("A stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and the Court."); Johnson v. Johnson, 663 So. 2d 663, 665 (Fla. 2d DCA
1995)("[T]o foster the legal policy of encouraging stipulations to minimize litigation and expedite resolution of disputes, the law provides that '(s)uch stipulations should be enforced if entered into with good faith and not obtained by fraud, misrepresentation, or mistake, and not against public policy.'"); and EGYB, Inc. v. First Union National Bank of Florida, 630 So. 2d 1216, 1217 (Fla. 5th DCA 1994)("Unless grounds for recission or withdrawal are shown, the trial court is bound to strictly enforce the agreement between the parties.").
4/ Petitioners Vilar, Pacheco, and Noriega each were educated and licensed as physical therapists in the country of Columbia and, subsequently, in 2002, before filing their applications with the Board, were licensed as physical therapists in New York. There was no evidence presented regarding the specific licenses held by the other two Petitioners, Petitioners Tatis and Morelli.
5/ The Department of Health certifies national examinations in accordance with the "[r]equirements and [s]tandards" set forth in Rule 64B-1.011, Florida Administrative Code, which provides as follows:
National examinations will be certified by the department according to the criteria established in this rule.
The national examination shall be developed either by or for a national or multi-state professional association, board, council or society (hereinafter referred to as national organization). The national organization providing the examination shall either:
Be recognized by state regulatory boards as a national organization, or
Be recognized by a substantial number of that profession's licensed practitioners as a national organization, or
Have a substantial number of the nation's practitioners licensed or certified
through an examination provided by or for the national organization.
Examinations prepared by or for a national organization shall meet the following requirements:
The examinations shall be administered for the purpose of assessing entry-level skills necessary to protect the health, safety and welfare of the public from incompetent practice,
The national organization or its test provider shall be the responsible body for overseeing the development and scoring of the national examination, and
The national organization or its test provider shall provide security guidelines for the development, administration and scoring of the national examination and shall oversee the enforcement of these guidelines.
A national examination shall meet the following generally accepted testing standards:
The examination tests the scope of practice and entry-level knowledge, skills and abilities defined by a national or multi-state job/task analysis or similar study with a representative sample of licensed practitioners and professional practices.
The examination is justified in terms of the protection of the health, safety and welfare of the patient or client.
The scores, sub-scores or combinations of scores are statistically reliable.
The examination uses psychometrically
sound methods to determine the passing score.
There are standardized procedures for administering and scoring the examination.
There are standardized procedures to ensure the security of the examination.
If an organization makes a request to the department to certify a national examination, the organization shall submit to the Division of Medical Quality Assurance, Bureau of Operations, Testing Services, 4052 Bald Cypress Way, Bin C-90, Tallahassee, Florida 32399-3290, documentation establishing that it meets the requirements established in subsection (1) of this rule, and a non- refundable fee of:
$1,700 for a written examination,
$3,000 for a clinical examination, or
$4,200 for an examination consisting of both a written and clinical component.
No fee shall be charged for certifying an examination if the request for certification is initiated by the department or the respective board.
Section 456.017(1)(c), Florida Statutes, is cited in Rule 64B- 1.011, Florida Administrative Code, as the "law [being] implemented." It provides as follows:
(c)1. The board, or the department when there is no board, shall approve by rule the use of one or more national examinations which the department has certified as meeting requirements of national examinations and generally accepted testing standards pursuant to department rules.
Providers of examinations seeking certification by the department shall pay the actual costs incurred by the department
in making a determination regarding the certification. The name and number of a candidate may be provided to a national contractor for the limited purpose of preparing the grade tape and information to be returned to the board or department; or, to the extent otherwise specified by rule, the candidate may apply directly to the vendor of the national examination and supply test score information to the department. The department may delegate to the board the duty to provide and administer the examination. Any national examination approved by a board, or the department when there is no board, prior to October 1, 1997, is deemed certified under this paragraph.
The board, or the department when there is no board, shall approve and begin administering a national examination no later than December 31, 2001. Neither the board nor the department may administer a state-developed written examination after December 31, 2001, notwithstanding any other provision of law. The examination may be administered electronically if adequate security measures are used, as determined by rule of the department.
The board, or the department when there is no board, may administer a state- developed practical or clinical examination, as required by the applicable practice act, if all costs of development, purchase, validation, administration, review, and defense are paid by the examination candidate prior to the administration of the examination. If a national practical or clinical examination is available and certified by the department pursuant to this section, the board, or the department when there is no board, may administer the national examination.
It is the intent of the Legislature to reduce the costs associated with state
examinations and to encourage the use of national examinations whenever possible.
6/ The NPTE "is in the process of being recertified." 7/ The native language of Petitioners Vilar, Pacheco and
Noriega is Spanish. The evidentiary record does not reveal the native language of either Petitioner Tatis or Petitioner Morelli.
8/ Although Petitioners, through their attorney, at the final hearing and in their Proposed Final Order, have expressed criticism of the penultimate sentence of the rule (to the extent that it requires that the licensure examination passed in the other jurisdiction be the NPTE), Petitioners, by pleading and stipulation, have limited their challenge in these consolidated cases to the rule's last sentence. Inasmuch as the Board has not consented to expand the scope of these proceedings, the undersigned will address in this Final Order the validity of only the last sentence (and no other portion) of the rule. See Lotspeich Co. v. Neogard Corp., 416 So. 2d 1163, 1165 (Fla. 3d DCA 1982)("Pretrial stipulations prescribing the issues on which a case is to be tried are binding upon the parties and the court, and should be strictly enforced.").
9/ See Board of Trustees of Internal Improvement Trust Fund v. Day Cruise Association, Inc., 794 So. 2d at 698 n.1.
10/ In a footnote, the Court noted that this language "appears . . . also at section 120.536(1), Florida Statutes (Supp. 1996)."
11/ In a footnote, the Court noted that, "[w]hile the Legislature disavowed any intention 'to reverse the result of any specific judicial decision,' Ch. 99-379, § 1, Laws of Fla., it explicitly rejected the rule of decision that had yielded the result in St. Johns River Water Mgmt. Dist. v. Consolidated- Tomoka Land Co., 717 So. 2d 72, 80 (Fla. 1st DCA 1998)."
12/ As the First District Court of Appeal observed in Board of Trustees of Internal Improvement Trust Fund v. Day Cruise Association, Inc., 794 So. 2d at 702-03, quoting from a law review article:
"Under the statutory scheme, a grant of power to adopt rules is certainly required,
but normally should be of little interest. Almost all agencies have a general grant-- usually found in the first part of their enabling statute--which basically states that the agency 'may adopt rules necessary to carry out the provisions of this chapter.' The first sentence [of section 120.536] emphasizes that such a general grant is sufficient to allow an agency to adopt a rule only when relied upon in conjunction with a specific provision of law to be implemented. "
13/ In an endnote, Judge Van Laningham stated the following:
In carrying out the legislative intent to restrict rulemaking to the implementation and interpretation of "specific powers and duties," administrative law judges need to be on guard against thwarting the legislature’s will by construing an enabling statute too liberally; doing so may effectively resurrect the rejected "class of powers" test under the guise of interpretation. Conversely, construing an enabling law too narrowly risks hamstringing an agency in the performance of its proper role as administrator of broadly stated legislative policies, a result that should also be avoided.
14/ "Florida law is consistent with the general law on the subject of deference to an agency's interpretation of the statute it is charged with enforcing." Bolam v. Mobil Oil Corporation, 893 F.2d 311, 313 n.3 (11th Cir. 1990).
15/ This interpretation is "binding on the agency." See Kearse v. Department of Health and Rehabilitative Services, 474 So. 2d 819, 820 (Fla. 1st DCA 1985); see also American Iron and Steel Institute v. E.P.A., 115 F.3d 979, 989 (D.C. Cir. 1997)("This is a permissible reading of the regulation, and we will hold the agency to it. So long as the agency adheres to this reading, the petitioners' challenge to these procedures is not ripe.
Should the agency ever adopt the interpretation the petitioners
describe, this court will of course have jurisdiction to revisit the issue.").
16/ The Board is administratively situated within the Department of Health. See §§ 20.43(3)(g)26 and 486.023(1), Fla. Stat.
17/ Section 486.031, Florida Statutes, is entitled, "Physical therapist; licensing requirements."
18/ Section 486.021(4), Florida Statutes, provides that "licensure granted by the board pursuant to the provisions of s. 486.081" constitutes "endorsement."
19/ Although this type of licensure is referred to in Chapter 486, Florida Statutes, as "licensure without examination," a reading of Section 486.081, Florida Statutes, makes clear beyond peradventure that, to be eligible for such licensure, an applicant must have previously passed an examination, either "the American Registry Examination prior to 1971 or an examination in physical therapy before a similar lawfully authorized examining board of another state, the District of Columbia, a territory, or a foreign country." "Licensure without examination," as described in Chapter 486, Florida Statutes, is actually licensure without further examination (in Florida), not licensure without any examination ever having been taken and passed by the applicant.
20/ Neither of these "standards"-prescribing rules is being challenged in these consolidated cases.
21/ The Board has done nothing to alter the fundamental difference, as established by the Legislature, between licensure by examination and licensure by endorsement. Under the Board's rules, consistent with the statutory scheme in Chapter 486, Florida Statutes, licensure by examination requires the applicant to sit for and pass the licensure examination in Florida, whereas licensure by endorsement does not. Petitioners are therefore simply wrong when they assert, in their Proposed Final Order, that the last sentence of the Rule 64B17-3.003 "effectively makes licensing without examination the same as licensure with examination."
22/ Contrary to the argument made by Petitioners in their Proposed Final Order, it is not unreasonable to conclude, as has the Board, that the Legislature, in Section 486.081(1), Florida
Statutes, expressed the intent that licensure by endorsement (based upon the passing of a licensure examination other than a pre-1971 American Registry Examination) be denied to an individual who would not be eligible to sit for the licensure examination in Florida if he or she was seeking licensure by examination.
23/ Among the other provisions in Section 120.595, Florida Statutes, is Subsection (3) thereof, which provides as follows:
(3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO SECTION 120.56(3).--If the court or administrative law judge declares a rule or portion of a rule invalid pursuant to s. 120.56(3), a judgment or order shall be rendered against the agency for reasonable costs and reasonable attorney's fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust. An agency's actions are "substantially justified" if there was a reasonable basis in law and fact at the time the actions were taken by the agency. If the agency prevails in the proceedings, the court or administrative law judge shall award reasonable costs and reasonable attorney's fees against a party if the court or administrative law judge determines that a party participated in the proceedings for an improper purpose as defined by paragraph (1)(e). No award of attorney's fees as provided by this subsection shall exceed
$15,000.
Paragraph (1)(e) of the statute defines "improper purpose" as follows:
"Improper purpose" means participation in a proceeding pursuant to s. 120.57(1) primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity.
COPIES FURNISHED:
Neil Flaxman, Esquire Neil Flaxman, P.A.
550 Biltmore Way, Suite 780 Coral Gables, Florida 33134
Donna Erlich, Esquire Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
Scott Boyd
Acting Executive Director/General Counsel Joint Administrative Procedures Committee
120 Holland Building Tallahassee, Florida 32399-1300
R. S. Power, Agency Clerk Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
William W. Large, General Counsel Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health
4052 Bald Cypress Way, Bin C05 Tallahassee, Florida 32399-1701
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 the original notice of appeal with the Clerk of the Division of Administrative Hearings and a 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.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 18, 2004 | Opinion | |
| Oct. 24, 2003 | DOAH Final Order | The Board of Physical Therapy practice rule provision denying licensure by endorsement to anyone who fails to pass the National Physical Therapy Examination in five attempts is held not to be an invalid exercise of delegated legislative authority. |
JAIME TATIS vs DEPARTMENT OF HEALTH, BOARD OF PHYSICAL THERAPY PRACTICE, 03-002940RX (2003)
FABIOLA PACHECO vs DEPARTMENT OF HEALTH, BOARD OF PHYSICAL THERAPY PRACTICE, 03-002940RX (2003)
ANGELICA MORELLI vs DEPARTMENT OF HEALTH, BOARD OF PHYSICAL THERAPY PRACTICE, 03-002940RX (2003)
PATRICIA NORIEGA vs DEPARTMENT OF HEALTH, BOARD OF PHYSICAL THERAPY PRACTICE, 03-002940RX (2003)
DEPARTMENT OF HEALTH, BOARD OF PHYSICAL THERAPY PRACTICE vs GREGORY SANTOME, 03-002940RX (2003)
