STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELLE HATLEY,

Petitioner,

vs.

DEPARTMENT OF EDUCATION,

Respondent.

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) Case No. 11-5078RX

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SUMMARY FINAL ORDER OF DISMISSAL

Petitioner initiated this proceeding pursuant to section 120.56, Florida Statutes (2011),1/ to challenge the validity of Florida Administrative Code Rule 6A-4.0021(6)(c)1. (Rule Challenge). Respondent filed a motion for summary final order (Motion) asserting that there are no disputed issues of material fact and that Respondent is entitled to a final order in its favor as a matter of law. For the reasons stated herein, the undersigned is persuaded by Respondent's unrefuted arguments.

APPEARANCES

For Petitioner: Colleen C. Sachs, Esquire

Sachs and La Seur, P.A. Building 4

1394 County Highway 283 South

Santa Rosa Beach, Florida 32459-5789

For Respondent: Brent McNeal, Esquire

Department of Education Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

STATEMENT OF THE ISSUE

The issue in this case is whether rule 6A-4.0021(6)(c)1. is invalid because Respondent exceeded its grant of rulemaking authority, as alleged by Petitioner.

PRELIMINARY STATEMENT

On October 4, 2011, Petitioner, Michelle Hatley (Petitioner), filed directly with the Division of Administrative Hearings (DOAH) a 16-page pleading entitled, "Petition for Administrative Hearing Pursuant to §120.57, Fla. Stat." (Petition). In large part, the focus of the Petition was on allegations that Respondent, Department of Education (Respondent), violated the Americans with Disabilities Act (ADA) by not making sufficient accommodations for Petitioner's visual impairment disability when she took portions of the Florida teacher's certification exam and did not pass one part. For this alleged violation, the Petition sought remedies pursuant to section 760.11, Florida Statutes, including damages and attorney's fees.

In addition, the Petition sought to challenge Respondent's proposed agency action that addressed the accommodations Respondent would provide in the future for Petitioner to retake the portion of the exam she did not pass. Respondent's proposed agency action agreed to provide some, but not all, of the accommodations requested by Petitioner.

The Petition also sought to challenge rule

6A-4.0021(6)(c)1.2/ "based on its inconsistency with the [ADA], and . . . the department's interpretation and application of that rule." The Petition did not contain allegations that the challenged rule was an invalid exercise of delegated legislative authority pursuant to any of the grounds enumerated in section 120.52(8).

Shortly after the Petition was filed, a telephone conference was conducted with counsel for both parties to address scheduling. In that telephone conference, the undersigned expressed concerns that the Petition, filed directly with DOAH as a Rule Challenge, appeared to be primarily drafted to challenge past and proposed agency action. Counsel for Petitioner represented that a separate petition challenging agency action had been or was about to be filed with Respondent. The parties agreed that the Rule Challenge should be held in abeyance to allow the separate petition challenging agency action to be forwarded to DOAH and that the two proceedings should be consolidated for hearing.

The separate petition arrived at DOAH on October 25, 2011, and was assigned Case No. 11-5479. The cases were consolidated and scheduled for hearing. However, a review of the files revealed that Petitioner had filed the identical petition with Respondent to challenge its proposed agency action (Proposed

Agency Action Challenge) as had been filed with DOAH to initiate the Rule Challenge. As such, not only did the Rule Challenge Petition include allegations challenging the proposed agency action, but also the Proposed Agency Action Challenge Petition included allegations challenging an existing rule. Moreover, both petitions included extraneous allegations not material to either the Rule Challenge or the Proposed Agency Action Challenge.

To address these pleading matters, an Order to Petitioner to Show Cause was issued on November 2, 2011 (Show Cause Order). The Show Cause Order suggested that: (1) the Rule Challenge Petition was insufficient to meet the pleading requirements of section 120.56; (2) the Proposed Agency Action Challenge Petition was confusing, because it was the same as the Rule Challenge Petition, when it should instead focus on the grounds for challenging Respondent's proposed agency action; and

1. neither Petition should include extraneous allegations purporting to invoke remedies under chapter 760 for redress of an alleged past failure to accommodate Petitioner's disability, because those allegations have to be presented first to the Florida Commission on Human Relations for an initial investigation and determination of whether there is reasonable cause to believe there was a violation, before Petitioner can seek an administrative hearing. See § 760.11. Petitioner was

   
   

   ordered to respond and/or file amended separate petitions in each of the two pending proceedings, excising from both petitions the improperly presented "failure to accommodate" complaint. Respondent was afforded an opportunity to reply following Petitioner's response to the Show Cause Order.

   On November 17, 2011, Petitioner belatedly filed a response to which Petitioner attached a revised consolidated petition without any title, but with both case numbers appearing in the caption (Revised Consolidated Petition). The Revised Consolidated Petition continued to combine allegations challenging the validity of an existing rule with allegations challenging the proposed agency action, but revised the Rule Challenge contents and added specific new allegations setting forth the grounds for the Rule Challenge. Some, but not all, of the extraneous allegations and prayers for relief were removed. Petitioner asserted the right to file a combined pleading based on case authority authorizing a party to raise a challenge to an existing rule within a challenge to the proposed agency action, instead of initiating separate proceedings.3/

   Respondent did not file a reply. While the Revised Consolidated Petition remains confusing by combining allegations for two separate proceedings and by retaining some extraneous allegations not germane to either proceeding, the undersigned chose to not press the issue further, taking Respondent's

   
   

   failure to reply as an indication that Respondent was able to sort out the allegations sufficiently to proceed. Thus, the Revised Consolidated Petition is considered the Petition initiating both the Rule Challenge (DOAH Case No. 11-5078RX) and the separate Proposed Agency Action Challenge (DOAH Case No. 11-5479). This Order addresses only the Rule Challenge, DOAH Case No. 11-5078RX.

   Shortly before the consolidated cases were scheduled to go to final hearing, Respondent filed its Motion in the Rule Challenge seeking summary final order in its favor. The Motion recited that Respondent had consulted with Petitioner and that Petitioner opposed the Motion. Petitioner did not thereafter file a written response or other materials explaining the reasons for her opposition to the Motion, as provided by section 120.57(1)(h) and Florida Administrative Code Rule 28-106.204(1) and (4). Separately, Respondent filed a motion to relinquish jurisdiction in DOAH Case No. 11-5479, asserting that there were no disputed issues of material fact; that motion is addressed by separate order.

   The parties then filed a Joint Motion for Continuance of the consolidated final hearing in recognition of the fact that motions filed by Respondent in each of the consolidated cases "may have a significant impact on whether a hearing before the Division of Administrative Hearings should occur[.]" Despite

   
   

   acknowledging that the Motion in the Rule Challenge was potentially dispositive, Petitioner still did not file a written response or other material in opposition to the Motion, and the response period is now long past.

   Accordingly, the undersigned finds it appropriate to dispose of the Motion on the basis of the written filings, as contemplated by rule 28-106.204(1).

   FINDINGS OF FACT

   
   

   1. Section II of the Revised Consolidated Petition is the portion of the pleading directed to the Rule Challenge. The entire Rule Challenge section is set forth verbatim here:

      The Department's Adoption of a Rule Broadly Limiting Time to Complete an Exam Exceeds its Grant of Legislative Authority

      
      

      Section 120.52(8)(b) provides that a rule is an invalid exercise of delegated legislative authority if "the agency has exceeded its grant of rulemaking authority." An agency may only adopt rules that implement or interpret the specific powers and duties granted by the enabling statute. Rules are required to identify the specific authority for adopting a rule, and the specific law being implemented.

      
      

      Rule 6A-4.0021, FAC identifies §§1012.55(1) and 1012.56, Fla. Stat. as its rulemaking authority and as the law being implemented. Both statutes relate to the issuance of teacher certifications, not to the criteria for admission to upper-level teaching programs leading to a bachelor's degree. To the extent that the rule applies to students taking the general knowledge portion of the FCTE to obtain admission to a bachelor's

      
      

      degree program, the rule would be implementing §1007.265, Fla. Stat., regarding alternative standards for admission to upper-division classes for students with disabilities. In order to meet the criteria established in that section, the rule would need to allow alternative admission requirements if the failure to meet the initial requirement is related to a disability and the revised requirement would not constitute a fundamental alteration in the nature of the program. §1007.265, Fla. Stat.

      
      

      The Department of Education, by adopting a rule that limits all test takers, regardless of the extent or type of their disability, to double the normal amount of time to complete an exam, has exceeded the authority granted by the legislature. The DOE has not and cannot show that allowing an applicant with a severe vision deficit additional time (beyond double the normal amount of time) would fundamentally alter the admissions criteria for upper-level education classes. By setting such a limited rule, a rule that allows no consideration of an applicant's type or degree of disability, the DOE has established an arbitrary rule that contravenes the very law it is attempting to implement - the law requiring alternative standards for disabled students.

      
      

   2. As noted in the Preliminary Statement, the initial Rule Challenge Petition filed with DOAH alleged only that the challenged rule, either facially or as interpreted and applied by Respondent, was inconsistent with the ADA. Petitioner was, thereafter, afforded an opportunity to amend the Petition in response to the Show Cause Order suggesting that the initial Petition did not meet the pleading requirements for a section

      
      

      120.56 rule challenge. In response, Petitioner filed the Revised Consolidated Petition that removed the contention that the rule was being challenged based on its inconsistency with the ADA and added the Rule Challenge allegations that are set out verbatim in Finding of Fact 1 above.

   3. As Finding of Fact 1 demonstrates, the new premise of Petitioner's Rule Challenge in the Revised Consolidated Petition is that rule 6A-4.0021(6)(c)1. is invalid because it exceeds the grant of legislative rulemaking authority in section 1007.265, Florida Statutes, a statute that was neither cited as authority for the challenged rule nor cited as the law implemented by the challenged rule.

      CONCLUSIONS OF LAW

      
      

   4. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.56(1), (3) & 120.57(1).

   5. Petitioner initiated this proceeding to challenge an existing rule pursuant to section 120.56(1) and (3). In pertinent part, the statute provides the following requirements for an existing rule challenge:

      1. GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A RULE OR A PROPOSED RULE.—

         
         

         1. 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.

            
            

         2. 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.

         
         

         * * *

         
         

         (3) CHALLENGING EXISTING RULES; SPECIAL PROVISIONS.—

         
         

         (a) 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.

         
         

   6. In accordance with the statute, Petitioner must state with particularity the rule provisions alleged to be invalid. The only rule provision specifically identified in the Revised Consolidated Petition is rule 6A-4.0021(6)(c)1., as gleaned from the title of section II of the Revised Consolidated Petition and the last paragraph describing the rule provision with which Petitioner takes issue. In pertinent part, the challenged rule in the form in which the rule has existed throughout this Rule Challenge, states as follows:

      
      

      (6) Examinee with a disability. An applicant who is unable to complete the examinations under standard testing conditions because of a disability may request special arrangements. Such a request shall be made when the examination application is submitted. Lack of proficiency in the English language alone shall not be acceptable as a justifiable reason for requesting a reader or extra time for an examinee. Special arrangements shall be provided for applicants with disabilities.

      
      

      * * *

      
      

      (c) Special test arrangements may include but are not limited to the following:

      
      

      1. Flexible scheduling. The person may be administered an examination during several brief sessions, as long as that examination is completed on the test administration date. Up to double time may be allowed.

      
      

   7. Section 120.56 also requires that a rule challenge petition set forth sufficient explanation of the grounds relied on for the alleged invalidity. As a corollary to this pleading requirement, Petitioner bears the burden of proving that the rule is an invalid exercise of delegated legislative authority "as to the objections raised." § 120.56(3)(a). These provisions in tandem make clear that the viability of a rule challenge hinges initially on a well-pled objection, which, if proven, would establish that an existing rule is an invalid exercise of delegated legislative authority.

      
      

   8. Petitioner's Rule Challenge is expressly limited to whether the challenged rule provision is invalid pursuant to section 120.52(8)(b), which provides as follows:

      (8) "Invalid exercise of delegated legislative authority" means action that 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:

      
      

      * * *

      
      

      (b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.

      
      

      The Revised Consolidated Petition does not invoke any of the other grounds enumerated in section 120.52(8)(a) and (c) through (f) to challenge Respondent's rule. Thus, whether rule

      6A-4.0021(6)(c)1. is invalid because Respondent has exceeded its grant of rulemaking authority, citation to which is required, is the sole objection raised.

   9. The Revised Consolidated Petition alleges that two statutes are cited as authority for the challenged rule, but that a third statute, not cited as authority or as the law implemented, should have been cited as the law implemented.

   10. As Respondent correctly points out in its Motion, the official promulgated rule has the following citation references: "Rulemaking Authority 1012.55(1), 1012.56, 1012.59 FS. Law Implemented 1012.55, 1012.56, 1012.59 FS." The official

       
       

       promulgated rule is available at the following internet address: https://www.flrules.org/gateway/RuleNo.asp?title=CERTIFICATION&

       ID=6A-4.0021. Petitioner only identified two of the three statutes cited as authority for the challenged rule and as implemented by the challenged rule.

   11. Section 1012.55 addresses the positions for which educator certificates are required. The statute includes an express direction to the State Board of Education (a division of Respondent) to "adopt rules in accordance with which the professional, temporary, and part-time certificates shall be issued by the Department of Education to applicants who meet the standards prescribed by such rules "

   12. Section 1012.56 sets forth the requirements for educator certification, including examinations. Subsection (13) provides that "[t]he State Board of Education shall adopt rules pursuant to ss. 120.536 and 120.54, as necessary to implement this section."

   13. Significantly, section 1012.59, overlooked by Petitioner, provides in pertinent part that "[t]he State Board of Education, by rule, may establish procedures for

       scheduling and administering an examination upon an applicant's request." (emphasis added).

   14. In accordance with the legislative authority granted in sections 1012.55(1), 1012.56(13), and 1012.59(1),

       
       

       Respondent's State Board of Education adopted rule 6A-4.0021 entitled, Florida Teacher Certification Examinations.

   15. The Revised Consolidated Petition does not allege that rule 6A-4.0021 exceeds the legislative authority granted in the three statutes that are expressly cited as authority for the rule and as implemented by the rule. In particular, the flexible scheduling provision for examinees with disabilities in rule 6A-4.0021(6)(c)1., which is the focus of Petitioner's challenge, falls within the grant of legislative rulemaking authority to establish procedures for scheduling and administration of examinations. § 1012.59(1). Petitioner does not contend otherwise.

   16. Rather than address the third statute expressly cited as authority for the challenged rule, the Revised Consolidated Petition advances an unsupportable argument that the challenged rule should be deemed to implement another statute that was not cited in the rule promulgation history note. As argued by Respondent in its Motion, the Rule Challenge is predicated on the erroneous contention that rule 6A-4.0021 implements section 1007.256; and having posited that false premise, the Rule Challenge then offers the conclusion that the rule exceeds or contravenes the statutory authority that "it is attempting to implement."

       
       

   17. Petitioner's assertion that rule 6A-4.0021 implements or is attempting to implement section 1007.256 is wrong. Section 1007.256 addresses a different subject--it addresses the circumstances when a student with a disability is eligible for reasonable substitution of requirements for admission into a program of study or for entry into the upper division. This statute provides as follows:

       1. Any student with a disability, as defined in s. 1007.02(2), in a public postsecondary educational institution shall be eligible for reasonable substitution for any requirement for graduation, for admission into a program of study, or for entry into the upper division where documentation can be provided that the person's failure to meet the requirement is related to the disability and where failure to meet the graduation requirement or program admission requirement does not constitute a fundamental alteration in the nature of the program.

          
          

       2. The State Board of Education, in consultation with the Board of Governors, shall adopt rules to implement this section for Florida College System institutions and shall develop substitute requirements where appropriate.

          
          

       3. The Board of Governors, in consultation with the State Board of Education, shall adopt regulations to implement this section for state universities and shall develop substitute requirements where appropriate.

          
          

   18. As pointed out by Respondent in its Motion, a different rule, not challenged by Petitioner, is the rule that is authorized by and that implements section 1007.256--rule

       
       

       6A-10.041. This rule entitled, "Substitution for Requirements for Eligible Disabled Students at Florida Colleges and Postsecondary Career Centers," provides in part as follows:

       1. Each board of trustees within the Florida College System and each district school board which operates a postsecondary career center shall develop and implement policies and procedures for providing reasonable substitution for eligible students as required by Sections 1007.264 and 1007.265, F.S. In determining whether to grant a substitution, documentation to substantiate that the disability can be reasonably expected to prevent the individual from meeting requirements for admission to the institution, admission to a program of study, entry to upper division, or graduation shall be provided.

          
          

          Subsequent paragraphs of rule 6A-10.041 provide guidance for the policies and procedures to be developed by boards of trustees within the Florida College System and district school boards operating postsecondary career centers. Thus, it is rule

          6A-10.041 that carries out the legislative authority delegated by section 1007.265--not rule 6A-4.0021.

   19. Respondent's Motion pinpoints the essential flaw in Petitioner's Rule Challenge theory by noting that the Rule Challenge "conflates the concepts of teacher certification examinations and admission to postsecondary institutions with the Florida College System."

   20. As a matter of law, Petitioner cannot prevail on her claim that rule 6A-4.0021(6)(c)1. is invalid pursuant to section

120.52(8)(b), by exceeding and contravening the legislative authority delegated in section 1007.265. Rule 6A-4.0021(6)(c)1. does not purport to carry out the legislative authority delegated by section 1007.265. Instead, the challenged rule exercises, and does not exceed, the legislative authority delegated in sections 1012.55(1), 1012.56(13), and 1012.59(1).

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Respondent's Motion for Summary Final Order on Petitioner's Rule Challenge is GRANTED, and the Rule Challenge is DISMISSED.

DONE AND ORDERED this 25th day of May, 2012, in Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2012.

ENDNOTES

1/ References herein to Florida Statutes are to the 2011 codification, unless otherwise specified.

2/ Rule 6A-4.0021 is intermittently cited in the Petition as rule 6A-1.0021, which does not exist. It is clear from the context and from the occasional correct citations that Petitioner intended to challenge rule 6A-4.0021 and that Petitioner's challenge is limited to subparagraph (6)(c)1. of that rule.

3/ Petitioner's argument that she should not have to initiate separate proceedings and the matters should not be bifurcated missed the point. Petitioner did initiate separate proceedings by filing a petition directly with DOAH, which was accepted as a rule challenge under section 120.56. Cmty. Health Charities v. Dep't of Mgmt. Servs., 961 So. 3d 371 (Fla. 1st DCA 2007), the case relied on by Petitioner, held that it was not necessary to initiate a separate rule challenge by filing a petition with DOAH and that, instead, the parties could include their rule challenge allegations in a single petition filed with the department to challenge the proposed agency action. The court did not say that if a party chooses to initiate a separate section 120.56 rule challenge proceeding, as Petitioner did here, that party is excused from meeting the pleading requirements that apply to the separate proceeding the party initiated. Moreover, an argument for efficiency and against bifurcation makes no sense in the context where the two separate proceedings that Petitioner initiated had already been consolidated for hearing.

COPIES FURNISHED:

Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400 gerard.robinson@fldoe.org

Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400 charles.deal@fldoe.org

Colleen C. Sachs, Esquire Sachs and La Seur, P.A. Building 4

1394 County Highway 283 South

Santa Rosa Beach, Florida 32459-5789

Brent McNeal, Esquire Department of Education Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Liz Cloud, Program Administrator Administrative Code

Department of State

R. A. Gray Building, Suite 101 Tallahassee, Florida 32399 lcloud@dos.state.fl.us

Ken Plante, Coordinator

Joint Administrative Procedures Committee Room 680, Pepper Building

111 West Madison Street Tallahassee, Florida 32399-1400 plante.ken@leg.state.fl.us

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 administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.

Docket for Case No: 11-005078RX

Orders for Case No: 11-005078RX