Judges: CHARLES C. ADAMS
Agency: Department of Health
Latest Update: Oct. 06, 1982
Summary: This cause concerns the Petitioner's challenge to Rule 10D-41.60, Florida Administrative Code, premised upon the assertion that that rule is an invalid exercise of legislative authority within the meaning of Section 120.56, Florida Statutes. 2/Challenge to rule must fail, it was correctly promulgated and not arbitrary or capricious.
82-1939STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
KAMRAN KHAJEH-NOORI, d/b/a )
KHAJEH-NOORI LABORATORY, )
)
Petitioner, )
)
vs. ) CASE NO. 82-1939RX
) STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This was a final hearing conducted pursuant to Section 120.56, Florida Statutes, and was held in Room 602, Park Trammell Building, 1313 Tampa Street, Tampa, Florida, commencing at 9:30 A.M., August 11, 1982. This order is being entered following the receipt and review of the transcript of the proceedings as filed with the Division of Administrative Hearings on September 10, 1982. 1/
APPEARANCES
For Petitioner: Edward M. Chew, Esquire
705 East Kennedy Boulevard Tampa, Florida 33602
For Respondent: Steven W. Huss, Esquire
Department of Health and Rehabilitative Services
1323 Winewood Boulevard
Building 1, Room 304
Tallahassee, Florida 32301 ISSUE
This cause concerns the Petitioner's challenge to Rule 10D-41.60, Florida Administrative Code, premised upon the assertion that that rule is an invalid exercise of legislative authority within the meaning of Section 120.56, Florida Statutes. 2/
FINDINGS OF FACT
Petitioner, Kamran Khajeh-Noori, who does business as Khajeh-Noori Laboratory, transacts that business at 2742 North Florida Avenue, Tampa, Florida.
Respondent, State of Florida, Department of Health and Rehabilitative Services, is an agency of State government whose principal business is at 1323 Winewood Boulevard, Tallahassee, Florida.
The Department of Health and Rehabilitative Services has promulgated a Rule 10D-41.60, Florida Administrative Code, which allows the revocation, suspension, limitation, annulment or denial of renewal of the certification of various laboratories based upon certain stated reasons. In particular, the rule states:
Denial or Revocation of Certification.
A laboratory certification may be denied, revoked, suspended, limited, annulled
or renewal denied for any or all of the following reasons:
Making false statements on an application or on any document associated with certification.
Demonstrating incompetence or making consistent errors in analyses.
Permitting unauthorized personnel to perform analyses.
Falsifying the results of analyses.
Failure to employ approved labora- tory methodology in the performance
of analyses required by the Act.
Failure to properly maintain facilities and equipment.
Failure to properly report analytical test results or to maintain required records of test results.
Failure to participate success- fully in the DHRS performance evaluation and/or quality control program.
Violating or aiding and abetting
in the violation of any provision of these regulations or the rules promulgated here- under.
The stated specific authority for this rule is Section 403.863, Florida Statutes, and the rule purports to implement that same provision of law.
Section 403.863, Florida Statutes, is part of the Florida Safe Drinking Water Act.
Petitioner, through his laboratory, was engaged in the business of analyzing water samples prior to the enactment of the Florida Safe Drinking Water Act. Following that enactment and the adoption of certification rules by the Department, he received a certificate from HRS to continue the operation of his water testing laboratory.
In keeping with the various provisions found in Chapter 10D-41, Florida Administrative Code, the Department of Health and Rehabilitative Services has conducted surveys of the Khajeh-Noori Laboratory and subsequent to those surveys has filed an Administrative Complaint under the authority of Rule 10D-41.60, Florida Administrative Code. This Administrative Complaint has been the subject of a formal hearing in State of Florida, Department of Health and Rehabilitative
Services v. Kamran Khajeh-Noori d/b/a Khajeh-Noori Laboratory, DOAH Case No. 81- 2979. That hearing was held on the same date as the present matter, that is August 11, 1982. The possible outcome of that proceeding might lead to the revocation, suspension, or annulment of the certification granted Khajeh-Noori Laboratory, thereby prohibiting the performance of those activities allowed by his certificate.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Section 120.56, Florida Statutes.
Petitioner is 'substantially affected" within the meaning of that term as set forth in Section 120.56, Florida Statutes, and therefore has standing to bring this rule challenge.
Subsection 403.863(1), Florida Statutes, 3/ makes it incumbent upon Respondent to adopt rules that are designed to evaluate and certify laboratories that are performing or who would perform water analysis under the authority of the Florida Safe Drinking Water Act. This rule adoption process is in furtherance of the preliminary requirement that Respondent and the State of Florida, Department of Environmental Regulation, jointly develop a program dealing with evaluation and certification of those laboratories. In compliance with that directive, Respondent has enacted Rules 10D-41.50 through 10D-41.61, Florida Administrative Code.
Additionally, in accordance with Subsection 403.863(2) Florida Statutes, 4/ Respondent has the responsibility to operate and implement the state laboratory certification program, with the exception that those applications for certification shall be provided to the Department of Environmental Regulations, together with recommendation by Respondent to certify or not certify those applicants, and the Department of Environmental Regulation shall review and make comments that application. By this, Respondent is granted final order authority on thew question of certification of applicants, based upon input from the Department of Environmental Regulations.
The underlying purpose of "certification" is explained at Subsection 403.863(6), Florida Statutes, wherein it states:
(6) For the purposes of this section,
the term "certification" means regulatory recognition given to a laboratory that performs analyses pursuant to the Florida State Drinking cater Act, that it meets minimum analytical performance standards.
Having granted regulatory recognition to a laboratory that performs the function of conducting analysis pursuant to the Florida Safe Drinking Water Act, the above-stated provision confers the additional authority to assure that those laboratories meet "minimum analytical performance standards."
The method chosen by Respondent to ensure compliance with "minimum analytical performance standards" is the passage of a rule, i.e., Rule 10D- 41.60, Florida Administrative Code, which allows disciplinary action to be taken against the certificate of a laboratory which is not in compliance with those standards. This rule in its operative provisions allots for the denial,
revocation, suspension, limitation, annulment or denial of renewal of laboratory certificates when the certificate holder is found to have violated environmental standards which relate to analytical performance. Enforcement by Respondent through the auspices of the subject rule, is in accord with Subsection 403.863(6), Florida Statutes, and is therefore a valid exercise of legislative authority, within the meaning of Section 120.56, Florida Statutes. By fair implication, the power to certify carries with it the power to revoke. See State Board of Education v. Nelson, 372 So.2d 114 (Fla. 1st DCA 1979).
Finally, the fact that other sections within the Florida Safe Drinking Water Act place she responsibility for regulation and enforcement on the State of Florida, Department of Environmental Regulation for matters other than the State Public Water Supply Laboratory Certification Program, does not change the outcome of this decision. Those duties on the part of DER do not preclude the performance of a similar function on the part of Respondent when dealing with the laboratory certification program.
In summary, Rule 10D-41.60, Florida Administrative Code, is found to be a valid exercise of legislative authority within the meaning of Section 120.56, Florida Statutes; the rule is upheld and the challenge dismissed.
DONE and ENTERED this 6th day of October, 1982, in Tallahassee, Florida.
CHARLES C. ADAMS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1982.
ENDNOTES
1/ The parties in the person of counsel have submitted memoranda in argument. The memoranda have been reviewed prior to the entry of this final order. To the extent that the memoranda coincide with this order, they have been utilized. To the extent that the memoranda are not in accord with this order, they are hereby rejected.
2/ The Petitioner has also advanced various constitutional claims as outlined in paragraphs 14 through 16, and 18 of his petition. These challenges are matters which could not be determined by the Hearing Officer; however, Petitioner was allowed to preserve those challenges in paragraphs 14 through 16 for use in any appeal which might be forthcoming. Although paragraph 18 of the Petition was not mentioned in the discussion of the preservation of constitutional challenges, it is in the nature of a constitutional challenge and is treated in the same fashion as paragraphs 14 through 16, for purposes of this order.
3/ (1) Within 120 days of the effective date of this act, the department and the Department of Health and Rehabilitative Services shall jointly develop a state program, and the Department of Health and Rehabilitative Services shall adopt rules for the evaluation and certification of all laboratories in the state, other than the principal state laboratory, which perform or make application to perform analyses pursuant to the Florida Safe Drinking Water Act. Such joint development shall be funded in part through the use of a portion of the State Public Water Systems Supervision Program grants received by the department from the Federal Government in order to implement the federal act.
4/ (2) The Department of Health and Rehabilitative Services shall have the responsibility for the operation and implementation of the state laboratory certification program, except that, upon completion of the evaluation and review of the laboratory certification application, the evaluation shall be forwarded, along with recommendations, to the department for review and comment, prior to final approval or disapproval. Program, with the exception that those applications for certification shall be provided to the Department of Environmental Regulation, together with a recommendation by Respondent to certify or not certify those applicants, and the Department of Environmental Regulation shall review and make comments about that application prior to Respondent's final approval or disapproval of the application. By this, Respondent is granted final order authority on the question of certification of applicants, based upon input from the Department of Environmental Regulation.
COPIES FURNISHED:
Edward M. Chew, Esquire 705 East Kennedy Boulevard Tampa, Florida 33602
Steven W. Huss, Esquire
Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Building 1, Room 304
Tallahassee, Florida 32301
David Pingree, Secretary
Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32301
Ms. Liz Cloud Department of State The Capitol, Room 1802
Tallahassee, Florida 32301
Carroll Webb, Executive Director Joint Administrative Procedures
Committee
120 Holland Building Tallahassee, Florida 32301
Docket for Case No: 82-001939RX
Orders for Case No: 82-001939RX
| Issue Date |
Document |
Summary |
|
Oct. 06, 1982 |
DOAH Final Order
|
Challenge to rule must fail, it was correctly promulgated and not arbitrary or capricious.
|
