STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA RILEY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1854RX

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Respondent. )

)

FINAL ORDER

The Petitioner, Linda Riley, has filed a "Petition for Determination of Invalidity of Existing Rule." Petitioner is seeking an order determining that Department of Professional Regulation Rule 21U-500.10, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. The Director of the Division of Administrative Hearings entered an Order assigning the matter to the undersigned Hearing Officer on June 23, 1983. A formal administrative hearing was conducted on July 15, 1983.

The following appearances were entered at the hearing: James F. Page, Jr., Orlando, Florida, appeared on behalf of the Petitioner; and Drucilla Bell and Sal Carpino, Tallahassee, Florida, appeared on behalf of the Respondent, Department of Professional Regulation. The Petitioner testified as a witness on her own behalf and called Linda Biedermann, the Staff Assistant to the Executive Director in the Psychological Services Section of the Department of Professional Regulation, as an additional witness. Biedermann also testified on behalf of the Respondent, as did Drucilla Bell, one of the Department's Assistants General Counsel. Petitioner's Exhibits 1 through 4 and Respondent's Exhibit 1 were offered into evidence and received.

The parties have submitted posthearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.

ISSUES

The ultimate issue to be resolved in this proceeding is whether Department of Professional Regulation Rule 21U-500.10, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. Petitioner contends that the rule is arbitrary and without rational basis, violates provisions of the federal and state Constitutions and not supported by an adequate economic impact statement. The Respondent contends that its rule is a valid exercise of delegated legislative authority and that it is supported by an adequate economic impact statement.

FINDINGS OF FACT

1. In 1981, the Florida Legislature adopted a statute authorizing the licensing of marriage and family therapists by the Department of Professional Regulation. Chapter 81-235, Laws of Florida. The Act became effective on January 1, 1982. Applicants would be eligible for licensure under the statute either by passing an examination prepared by the Department of Professional Regulation or by demonstrating that he or she holds a valid license in another state to practice marriage and family therapy, provided that the requirements in the other state were substantially equivalent to or more stringent than those set out in the Florida Statutes. The statute goes on to provide, at Section 490.006(2), Florida Statutes, as follows:

   
   

   Such examinations and requirements of other states shall be presumed to be substantially equivalent to or more stringent than those in this state unless the department . . . by rule finds otherwise. Such presumption shall not arise until January 1, 1982.

   
   

2. In response to Chapter 81-235, Laws of Florida, the Department of Professional Regulation assigned the staff assistant to the executive director of the Psychological Services Section to determine licensure requirements for marriage and family and therapists in other states. The staff assistant wrote a letter to each of the 49 other states requesting that they advise her about the requirements. She received two responses--one from California and one from North Carolina. She concluded that, in her opinion, the licensure requirements in California and North Carolina were not substantially equivalent to Florida's and that she could not determine requirements in the other states. Based on this factual material, the Department adopted its Rule 21U-500.10, Florida Administrative Code. In its entirety, the rule provides, as follows:

   
   

   1. The Department finds that the examinations and requirements of all other states for licensure as school psychologists marriage and family therapists, mental health counselors and clinical social workers shall not be presumed to be substantially equiva- lent to or more stringent than those

      in this State.

   2. Licensure by endorsement may be obtained only through those states which require education and experi- ence equivalent to the requirement for licensure by examination, as set forth in Chapter 490, F.S., and where licensure is based upon successful completion of a written examination.

   3. Applicants for licensure by endorsement must submit a copy of the requirements under which licen- sure was obtained in another state.

   4. No license by endorsement will be issued until the licensing agencies

      of all states in which the applicant has ever held a professional license to practice a psychological service verifies to this Department on a form provided by this Department the status of the licenses and the status of any

      disciplinary action involving those licenses.

      
      

      The effect of the rule is to eliminate for all states the presumption established under the provisions of Section 2381 490.006(2), Florida Statutes.

      
      

3. No effort was made by the staff assistant or by anyone in the Department to determine licensure requirements in other states other than the writing of a letter. Subsequent to the adoption of Rule 21U-500.10, letters were again sent to the other 49 states regarding their licensure requirements. There were apparently no responses. No effort was made to research the laws of the other states to determine whether they licensed marriage and family therapists or what their licensure requirements might be. No effort was made to contact professional associations in other states regarding licensure requirements nor to contact national professional associations to elicit aid in determining other states' licensure requirements. It was the Department's feeling that if one state did not have substantially equivalent or more stringent requirements than Florida, then a rule overturning the presumption would be necessary. Otherwise, in the opinion of the Department, there would be administrative difficulties in determining how state requirements varied from time to time. The staff assistant who gathered information was not aware that it was possible to learn of the legal requirements for licensure in other states through legal research. She did not conduct any such research, and she did not ask that any be conducted by the Department's legal staff.

   
   

4. The Department has not, by rule, made any determination as to whether licensure requirements for marriage and family therapists in any other state are or are not substantially equivalent or more stringent than those in Florida. Instead, without even researching the statutes, the Department has determined that there are some states in which the requirements are less stringent than in Florida and that, therefore, the statutory presumption should be overturned.

   
   

5. Under the statute, there are now only two avenues for licensure as a marriage and family therapist in Florida. One is by endorsement; the other is by examination. Eliminating the presumption favoring licensure by endorsement has rendered licensure in that fashion considerably more difficult. The Department has, as yet, not offered an examination. The first examination is proposed to be offered in November, but notices have not yet been distributed. The result is that only persons who fall under statutory exemptions that are not available to new applicants can be licensed to practice marriage and family therapy in Florida.

   
   

6. In support of Rule 21U-500.10, Florida Administrative Code the Department adopted an economic impact statement. In its entirety, the statement provided, as follows:

   
   

   1. Estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork:

      This rule will have minimal costs

      on the Department since the rule places the responsibility for providing the other state requirements on the appli- cant and it appears that the review of the application will not require any more time than a regular application for licensure by examination.

      
      

   2. Estimate of the cost or the eco- nomic benefit to all persons directly affected by the proposed action:

      
      

      The costs or economic benefit to those directly affected cannot now be

      calculated because there is no indica- tion as to how many applications will be made for licensure by endorsement.

      
      

   3. Estimate of the impact of the pro- posed action on competition and the open market for employment:

      
      

      The rule should have a positive affect [sic] on competition and the open market for employment as it will insure that those persons being licensed will be qualified to prac- tice as they will have met similar qualifications as the ones found in Chapter 490, Florida Statutes.

      
      

   4. Detailed statement of the data and method used in making each of the above statements:

   
   

   Not applicable

   
   

   The economic impact statement contains no estimate of the cost or the economic benefit of the rule to all persons directly affected by it. It is obvious that the rule does impose costs on persons who would have been eligible for licensure by endorsement but for the adoption of the rule. Such persons would either need to establish that the licensure requirements in the state where they were licensed are equivalent to Florida's in a formal administrative hearing or wait until the Department decides to administer an examination for licensure. These costs cannot be precisely determined because of the individual nature of each case. It is also difficult to determine how many persons might be in that position. It is, however, obvious that there are such costs. The existence of the costs was not acknowledged in the economic impact statement and was not a part of the information considered by the Department in determining whether to adopt the rule.

   
   

7. The statement in the economic impact statement that the rule would have a positive effect on competition is erroneous. The effect of the rule is to limit the number of persons eligible to practice marriage and family therapy in Florida to those who have met statutory exemptions which do not apply to present applicants. A monopoly in the field has been given to these persons at least

   until the Department administers an examination. The statute has been in effect since January 1, 1982, and no exam has yet been administered. The effect on competition of limiting licensure by endorsement is therefore negative. The Department did not consider this effect in adopting Rule 21U-500.10.

   
   

8. The economic impact statement contains no detailed statement of the data and method used in making estimates. Indeed, there is no statement of the data and method used at all.

   
   

9. The Department's economic impact statement was prepared by an attorney. The attorney has prepared numerous economic impact statements in the past. The attorney is, however, not trained as an economist or an accountant.

   
   

10. The Petitioner is licensed as a marriage and family counselor in California. She met all of the educational and experience requirements for licensure in California and passed an examination. Subsequent to licensure, she has obtained an impressive degree of supervised experience in the field of marriage and family therapy. She is a member of numerous professional associations. Petitioner has applied for licensure in Florida by endorsement. If California's standards for licensure were considered substantially equivalent or more stringent than Florida's, she would be eligible for licensure. Furthermore, the Petitioner has ample education and experience to qualify for licensure in Florida other than by endorsement, except that she has not taken and passed the examination. Since the examination has not been offered, however, it is not possible for her to meet that requirement. Petitioner has relocated to Florida with her husband. She is prepared to practice her profession and fully competent to do so.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.56, Florida Statutes.

    
    

12. Department of Professional Regulation Rule 21U-500.10, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. The rule was adopted without regard to the statutory mandate set out at Section 490.006(2), Florida Statutes. The statute sets out a clear, legislative declaration that licensure requirements in other states should be considered substantially equivalent to Florida's unless the Department makes an explicit finding that that is not the case by rule. The Department has made no such explicit finding as to the licensure requirements for marriage and family therapists in any other state. Instead, the Department has merely determined that since licensure requirements in some states are less stringent than Florida's, the presumption should not apply. Even that conclusion was based upon inadequate research. The only effort made to determine licensure requirements in other states was the writing of one letter to each state. While that technique could be helpful, it ignores the wealth of information that would have been available to the Department at a law library. It is a conclusion based on inadequate research.

    
    

13. The economic impact statement prepared by the Department is inadequate. The statement does not contain an estimate of the cost to all persons directly affected by the rule, does not estimate the impact of the rule on competition, and includes no statement of the data and method used in making the estimates. Section 120.54(2), Florida Statutes, provides that in proposing rules, an agency must prepare a detailed economic statement. Failure to prepare

    an adequate statement of economic impact is grounds for holding a rule invalid when, as in this case, the issue is raised in an administrative proceeding within one year of the effective date of the rule. Section 120.54(2)(c), Florida Statutes. It has been held that specific defects in an economic impact statement will not render a rule invalid unless it is shown that the error impaired the fairness of the rule-making proceeding or the correctness of the action taken by the agency. School Board of Broward County v. Gramith, 375 So.2d 340 (1 DCA Fla. 1979); Polk v. School Board of Polk County, 373 So.2d 960 (2 DCA Fla. 1979). The purpose of requiring an economic impact statement is to assure that agencies will analyze economic factors during the course of rule making. In Florida-Texas Freight, Inc. v. Hawkins, 379 So.2d 944 (Fla. 1979), the court stated: (at p. 946)

    
    

    By this provision [Section 120.54(2)(a)] the legislature seeks to promote agency introspection in administrative rule- making. The process of formulating rules and regulations involves an interplay between social and economic factors and the legislative goals underlying agency action. In order

    to ensure a comprehensive and accu- rate analysis of economic factors in this calculus, the legislature has instructed an agency . . . to prepare an explicit statement delineating the short-and long-term economic conse- quences of a proposed rule. Such a procedure directs agency attention to certain key considerations and thereby facilitates informed decision making.

    It also serves the salutary purpose of opening up the administrative pro- cess to public scrutiny.

    
    

    The failure of an agency to adopt an adequate economic impact statement is not harmless error if it is established that the proposed action will have economic impact and that the agency failed to consider it. Division of Workers' Compensation v. McKee, 413 So.2d 805 (1 DCA Fla. 1982).

    
    

14. Persons, such as the Petitioner in this case, who would be eligible for licensure by endorsement except for the Department'S Rule 21U-500.10, Florida Administrative Code, are economically impacted by the rule. The Department's economic impact statement erroneously stated that there would be no such impact and did not consider the fact of such an impact in its rule-making proceeding. Furthermore, the Department did not, as required, explicate its data and methodology. The fairness of the rule-making proceeding has been impaired because considerations which the Legislature has required to be a part of the rule-making process were not a part of this rule-making process.

    
    

15. Petitioner has asserted that the Department's rule violates state and federal constitutional provisions. A Hearing Officer of the Division of Administrative Hearings has no jurisdiction to resolve claims that an existing rule is unconstitutional. Department of Environmental Regulation v. Leon County, 344 So.2d 297 (1 DCA Fla. 1977). Accordingly, no ruling has been made upon Petitioner's constitutional claims.

FINAL ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

ORDERED:

Department of Professional Regulation Rule 21U-500.10, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority, and the rule is hereby declared to be invalid.

DONE AND ORDERED this 6th day of September, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1983.

COPIES FURNISHED:

James F. Page, Jr., Esquire Gray, Harris & Robinson Post Office Box 3068 Orlando, Florida 32802

Drucilla Bell, Esquire Sal Carpino, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Carroll Webb, Esquire Executive Director

Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301

Ms. Liz Cloud, Chief Administrative Code Bureau Department of State

Suite 1802, The Capitol Tallahassee, Florida 32301

Docket for Case No: 83-001854RX

Orders for Case No: 83-001854RX