STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FOOD SAFETY TRAINING, INC., )
)
Petitioner, )
)
vs. )
) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )
DIVISION OF HOTELS AND )
RESTAURANTS, )
)
Respondent, )
)
and )
) FLORIDA RESTAURANT ASSOCIATION, ) INC., )
Intervenor. )
Case No. 01-3753RP
)
FINAL ORDER
The parties having been provided proper notice, Administrative Law Judge John G. Van Laningham of the Division of Administrative Hearings convened and completed a formal hearing of this matter in Tallahassee, Florida, on January 3, 2002.
APPEARANCES
For Petitioner: Harold F. X. Purnell, Esquire
Rutledge, Ecenia, Underwood, Purnell & Hoffman
Post Office Box 551 Tallahassee, Florida 32302-0551
For Respondent: Thomas G. Thomas, Esquire
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-2202
For Intervenor: Warren H. Husband, Esquire
Metz, Hauser & Husband, P.A. Post Office Box 10909 Tallahassee, Florida 32302-2909
STATEMENT OF THE ISSUES
The issues in this case concern whether challenged portions of Proposed Rule 61C-4.023(4)(b) either separately or together constitute an “invalid exercise of delegated legislative authority” on the grounds that the agency has exceeded its grant of rulemaking authority; the proposed rule enlarges, modifies, or contravenes the specific provisions of law implemented; or both.
PRELIMINARY STATEMENT
On September 20, 2001, Petitioner Food Safety Training, Inc. (“Food Safety”) filed with the Division of Administrative Hearings its Petition for Administrative Determination of the Invalidity of a Proposed Rule (“Petition”). In its Petition, Food Safety alleged that portions of Proposed Rule 61C- 4.023(4)(b), which Respondent Department of Business and Professional Regulation, Division of Hotels and Restaurants (the “Division”) is seeking to adopt, are invalid exercises of delegated legislative authority.
The Florida Restaurant Association, Inc. (the “Association”) filed a Petition for Leave to Intervene on October 2, 2001. By Order dated October 5, 2001, the Association was allowed to intervene.
The parties were duly notified that the final hearing would begin at 9:00 a.m. on January 3, 2002, at the Division of Administrative Hearings in Tallahassee. The parties timely filed a Joint Prehearing Stipulation on December 27, 2001, wherein they stipulated to a number of facts and acknowledged the standing of all parties to participate in this proceeding.
All parties appeared at the scheduled time and place for the final hearing, which lasted less than two hours.
The parties presented a single witness, who appeared in person at the hearing: Geoff Luebkemann, the Division’s Acting Director. In addition, the parties jointly offered ten exhibits at hearing, which were received into evidence without objection as Joint Exhibits 1 through 10.
A transcript of the final hearing was filed on January 8, 2002. The Division and the Association timely filed a joint proposed final order. Petitioner’s proposed final order was received out of time, over the Association’s objection. To prevent prejudice to the Association from Petitioner’s being allowed additional time to file its proposed final order, the
Association was granted leave to file a reply memorandum, which it did on February 4, 2002.
All of the parties’ post-hearing papers were carefully considered in the preparation of this Final Order.
FINDINGS OF FACT
The parties' Joint Prehearing Stipulation and the evidence presented at final hearing established the facts that follow.
The Division is the state agency charged with inspecting and regulating licensed “public food service establishments” (which are commonly known as restaurants). See
generally Section 509.032, Florida Statutes.
In the early 1990s, the legislature enacted Section 509.039, Florida Statutes, which directed the Division to adopt, by rule, food safety protection standards for the training and certification of all food service managers responsible for the storage, preparation, display, or serving of foods to the public in licensed establishments. This legislation required the Division to establish a testing and certification program, to be administered by private or public entities. Id.
In 1996, the Legislature went a step further, instructing the Division to adopt minimum food safety protection standards for the training of all food service employees:
509.049 Food service employee training.– The division shall adopt, by rule, minimum food safety protection standards for the
training of all food service employees who are responsible for the storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. These standards shall not include an examination. It shall be the duty of the licensee of the public food service establishment to provide training in accordance with the described rule to all employees under the licensee's supervision or control. The licensee may designate a certified food service manager to perform this function as an agent of the licensee.
See Chapter 96-384, Section 4, Laws of Florida.
In 2000, the legislature substantially revised Section 509.049, Florida Statutes, mandating that the Division establish, by rule, a food safety training certification program for food service employees, to be administered by a private provider under a public contract that the Division was directed to let pursuant to competitive proposals. See Chapter 2000-191, Section 1, Laws of Florida. At the same time, the revised law provided that licensed establishments could apply to the Division for approval of their existing food safety training programs——approval which, if granted, would allow such programs to be used in place of the program administered by the Division’s contracted provider. Id.
Pursuant to a competitive procurement, the Division selected the Intervenor Association to be its contracted provider for the “official” employee food safety training certification program.
Petitioner Food Safety is a provider that offers a food safety training program that the Division has approved for use. Food Safety distributes its training program both by directly administering the program to restaurant employees through on- site, personal instruction, and by selling its program for others to administer.1
In 2001, the legislature again revised Section 509.049, Florida Statutes, adding provisions that pertained to the approval of food safety training programs, allowed some regulation of providers of such programs, and authorized the Division to adopt certain rules. See Chapter 2001-257, Section 1, Laws of Florida. In particular, two new subsections, (4) and (6), were added to Section 509.049, as follows:
(4) Approval of a program is subject to the provider's continued compliance with the division's minimum program standards. The division may conduct random audits of approved programs to determine compliance and may audit any program if it has reason to believe a program is not in compliance with this section. The division may revoke a program's approval if it finds a program is not in compliance with this section or the rules adopted under this section.
* * *
The division may adopt rules pursuant to ss. 120.536(1) and 120.54 necessary to administer this section. The rules may require:
The use of application forms, which may require, but need not be limited to, the
identification of training components of the program and an applicant affidavit attesting to the accuracy of the information provided in the application;
Providers to maintain information concerning establishments where they provide training pursuant to this section;
Specific subject matter related to food safety for use in training program components; and
The licensee to be responsible for providing proof of employee training, and the division may request production of such proof upon inspection of the establishment.
Initiating the rulemaking process that led to this challenge, the Division caused a Notice of Proposed Rule Development to be published in the March 23, 2001, edition of the Florida Administrative Weekly. This Notice included the preliminary text of Proposed Rule 61C-4.023(4), which stated in relevant part:
Approved program providers must maintain a record of each food service employee certified, including the following: the name of the certified food service employee, the employing food service establishment, the name of the training administrator, the training date, and the certification expiration date. These records shall be transmitted to the division on a monthly basis, either in hard copy or in an electronic format approved by the division.
After conducting a workshop on the draft rule on
May 24, 2001, the Division caused a Notice of Proposed Rule to be published in the August 17, 2001 edition of the Florida
Administrative Weekly. The August 17, 2001, version of the proposed rule stated, in pertinent part:
(b) Approved program providers must maintain training information for a period of at least three years from the date training is provided. If the program provider directly administers training to a food service employee, this information must include the name of the trained food service employee, the name of establishments where training has been provided, the date of training, and the specific course that was used for the training. If the program provider furnishes program materials but does not directly administer training to a food service employee, this information must include the name of establishments where program materials have been provided, the date these materials were provided, and the specific course which was provided. The division shall revoke its approval of any program which, upon examination, is found to have failed to keep this required information or to have knowingly participated in falsifying any training record.
On September 20, 2001, Food Safety filed its Petition, objecting to provisions in the proposed rule which would impose record-keeping requirements on providers that do “not directly administer training” and which would require the Division to revoke its approval of an authorized program in certain circumstances.
After this rule challenge commenced, the Division amended the final sentence of Proposed Rule 61C-4.023(4)(b). The proposed rule assumed its current form in the October 26,
2001, edition of the Florida Administrative Weekly. Proposed Rule 61C-4.023(4)(b) (the “Proposed Rule”), as challenged, provides as follows:
Approved program providers must maintain training information for a period of at least three years from the date training is provided. If the program provider directly administers training to a food service employee, this information must include the name of the trained food service employee, the name of establishments where training has been provided, the date of training, and the specific course that was used for the training. If the program provider furnishes program materials but does not directly administer training to a food service employee, this information must include the name of establishments where program materials have been provided, the date these materials were provided, and the specific course which was provided. The division shall revoke its approval of any program where, upon examination, the program provider is found to have failed to keep this required information or to have knowingly participated in falsifying any training record.
Petitioner protests the third and fourth sentences of the Proposed Rule, which are underlined above, alleging that the subject provisions either exceed the Division’s rulemaking authority; enlarge, modify, or contravene the specific provisions of law implemented; or both.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.56, 120.569, and 120.57(1), Florida, and the parties have standing.
Burden of Proof
In a challenge to a proposed rule, the petitioner bears the initial burden of going forward with evidence in support of its allegations. See Section 120.56(2)(a), Florida Statutes. Once the petitioner has produced legally sufficient evidence, the burden shifts to the agency, which must “prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised.” Id. In other words (eliminating the double negative), to overcome any objection for which the petitioner has offered some legally sufficient proof, the agency must affirmatively demonstrate that, as to such objection, the proposed rule is, more likely than not, valid. In weighing the evidence and evaluating the parties’ arguments, the administrative law judge must not presume the rule to be either valid or invalid. See Section 120.56(2)(c), Florida Statutes.
Rules of Decision
In determining whether an existing or proposed rule is invalid, the starting point is Section 120.52(8), Florida Statutes, in which the legislature defined the term “invalid exercise of delegated legislative authority.” In this definition, the legislature created a catalog of the salient defects which distinguish rules that exceed an agency’s delegated powers, functions, and duties. Two types of these fatal flaws, set forth in subparts (b) and (c), are pertinent in this case:
A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:
* * *
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;
* * *
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1[.]
Section 120.52(8)(b) & (c), Florida Statutes.
Also included in Section 120.52(8) is a concluding paragraph——commonly called the “flush left paragraph”——in which the legislature expressed a clear intent to curb agency rulemaking authority:
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.
Section 120.52(8), Florida Statutes. As if to underscore its desire to rein in the agencies, the legislature enacted the same restrictions on rulemaking authority in Section 120.536(1), Florida Statutes.
The legislative history and meaning of the flush left paragraph have been reviewed extensively in several recent appellate opinions, which will be discussed below.
The Manatee Club Case
The flush left paragraph, in its present form, was adopted in 1999. The First District Court of Appeal first examined this paragraph in Southwest Florida Water Management
District v. Save the Manatee Club, Inc., 773 So. 2d 594 (Fla. 1st DCA 2000). In Manatee Club, the court recognized that the
legislature had passed the 1999 enactment in direct response to the court’s interpretation of an earlier version of the flush left paragraph. That previous interpretation, rendered in St. Johns Water Management District v. Consolidated-Tomoka Land Co., 717 So. 2d 72 (Fla. 1st DCA 1998), had held that a rule was valid “if it regulate[d] a matter directly within the class of powers and duties identified in the statute to be implemented.” Id. at 80. With the 1999 revisions to the flush left paragraph, the legislature expressly had repudiated the “class of powers” test, the court explained in Manatee Club. 773 So. 2d at 599.
In applying the new standard, the court found, as an initial matter, that the language prohibiting agencies from adopting any rules except those “that implement or interpret the specific powers and duties granted by the enabling statute” was clear and unambiguous. Id. The court observed that, “[i]n the context of the entire sentence, it 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. (emphasis added).
While understanding the adjective “specific” to mean “explicit,” the court refused to construe “specific” as a synonym for “detailed.” Explaining, it wrote:
The new law gives the agencies authority to "implement or interpret" specific powers and duties contained in the enabling statute. A rule that is used to implement or carry out a directive will necessarily contain language more detailed than that used in the directive itself. Likewise, the use of the term "interpret" suggests that a rule will be more detailed than the applicable enabling statute. There would be no need for interpretation if all of the details were contained in the statute itself.
Id. Bringing its analysis of the 1999 revision of the flush left paragraph to a conclusion, the court held:
It follows that 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.
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.
Id. (underlining added).
The court’s framing of the issue as being whether there is a specific grant——but not whether the grant is specific enough——appears to engender a paradox, for it seems that the degree of statutory specificity might be relevant if the dispositive issue entails a search for something specific in the statute. The “specific grant/grant . . . specific” sentence must be firmly grounded in its context to be properly understood.
That context, from which the court’s conclusion immediately followed, is the court’s concern that the term “specific” as used in Section 120.52(8), Florida Statutes, not be construed to mean “detailed.” In holding that the issue is not “whether the grant of authority is specific enough,” the court was using the term “grant of authority” to refer to the statutory language that confers the specific power or specific duty purportedly being implemented or interpreted through the challenged rule; it was not referring to the power or duty itself. Thus, in other words, the flush left paragraph is not a prescription for specificity in legislative draftsmanship. To be sure, whether the statute that authorizes or directs the agency to act is specific enough is an important question——the statute’s constitutionality hinges on its having sufficient standards to guide the agency’s administration of the law2——but that question is irrelevant in an administrative challenge to the rule’s validity.3
In contrast, in framing the pertinent issue as being “whether the statute contains a specific grant of legislative authority,” the court was using the term “grant of . . . authority” to refer not to the granting language but to the thing granted, i.e. the specific power or duty. That is, the enabling statute must contain (or confer) a specific power or specific duty, and the challenged rule must implement or
interpret such power or duty to be valid. The rule’s validity (as opposed to the statute’s constitutionality, which is a separate issue) does not depend, however, on the specificity with which the legislature conferred the specific power or duty. Of course, the less specific the statute, the less likely legislative intent to grant the specific power or duty claimed will be found, and vice versa; that, however, is a function of statutory interpretation rather than the result of Section 120.52(8)’s restrictions.
In sum, the court in Manatee Club, in applying the 1999 revisions to the flush left paragraph, ruled that the question posed thereby is whether the enabling statute—— interpreted, if need be, according to ordinary rules of statutory construction——manifests a legislative intent to confer the specific power or the specific duty that the agency claims to have implemented or interpreted through the rule under review. In answering this question, the specificity of the enabling statute’s terms is irrelevant——except, of course, insofar as a relative lack of specificity tends to obscure legislative intent, whereas relative precision in legislative draftsmanship tends to reveal such intent.
Turning to the facts of Manatee Club, the rule provisions at issue there granted exemptions to certain permitting requirements based upon prior governmental approval;
they were, in other words, “grandfather provisions.” By statute, the agency had been delegated the power to establish exemptions, but the power was qualified: only exemptions that did not “allow significant adverse [environmental] impacts to occur” could be granted. Id. at 600. The agency’s specific power, therefore, was to create environmentally safe exemptions. Because, as the court found, the subject grandfather provisions had not been based on the absence of potential adverse environmental impacts, the agency had exceeded its rulemaking authority; hence, the exemptions were invalid. Id.
The Day Cruise Decision
The first district revisited the flush left paragraph of Section 120.52(8), Florida Statutes, in State Board of Trustees of the Internal Improvement Trust Fund v. Day Cruise
Association, Inc., 794 So. 2d 696 (Fla. 1st DCA 2001). The proposed rule under attack in that case would have forbidden the use of sovereignty submerged lands for anchoring cruise ships engaged in carrying passengers on so-called “cruises to nowhere”——legal gambling excursions. Id. at 697. A divided court held the challenged rule to be invalid.
Writing for the majority, Judge Benton reviewed the legislative history behind the 1999 amendments to the Administrative Procedure Act and reiterated the legislative
intent to “cabin agency rulemaking authority.” Id. at 700. The majority declared:
[I]t is now clear [that] 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 (proposed) 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 (footnote omitted; emphasis added). And further:
The statutory provisions governing rulemaking must be interpreted in light of the Legislature's stated intent to clarify significant restrictions on agencies' exercise of rulemaking authority, and to reject the "class of powers and duties" analysis employed in Consolidated-Tomoka. If reasonable doubt exists as to the "lawful existence of a particular power that is being exercised, the further exercise of the power should be arrested." Radio Tel.
Communications, Inc. v. Southeastern Tel Co., 170 So. 2d 577, 582 (Fla. 1964).
Id. at 700-01 (footnote omitted; emphasis added).
Upon reading the foregoing, it is tempting to conclude that the Day Cruise majority receded from the declaration in Manatee Club concerning the irrelevance of the question “whether the grant of authority [=statutory language] is specific enough.” For in Day Cruise, the majority at first blush appears to have required that both a “specific statute” and a “specific power[] or dut[y]” must be found to authorize a rule. Yet, in a
concurring opinion, Judge Browning wrote that he considered Manatee Club to be the controlling authority. Id. at 705-06. Therefore, Day Cruise should be construed so as to avoid conflict with Manatee Club.
The two cases may be brought into harmony by understanding the Day Cruise majority’s requirement of a “specific statute” to mean that the agency must be able to identify a particular or distinctive enabling statute; that is, the power or duty being carried out cannot simply be inferred from a laundry list of legislative delegations of power or discovered lurking in a statutory penumbra. Whether the language of this particular statute is explicit or not is irrelevant——provided the intent to confer a specific power or duty can fairly be found therein.
As for the proposed rule in question in Day Cruise, the majority found it invalid on two interrelated grounds. First, the majority examined the grant of rulemaking authority applicable specifically to sovereignty submerged lands and concluded that a provision in the grant which prohibited regulations that “interfere with commerce” qualified the agency’s power “in ways that are incompatible with the adoption of the proposed rule.” Id. at 702.
Second, the majority looked at the broad constitutional grant of authority to the agency to acquire,
administer, manage, control, supervise, conserve, protect, and dispose of state lands, including the sovereignty submerged lands. Id. at 703. Despite the breadth of the general language contained in the state constitution, the majority ruled that
[n]o provision listed as being implemented in the proposed rule purports to authorize—— much less specifically to direct——the [agency] to prohibit only certain vessels from mooring on the basis of lawful activities on board (possibly other) vessels once they are on the high seas.
* * *
The provisions purportedly to be implemented here are completely silent about day cruises and about gambling and confer no authority to bar day cruise vessels——or any other vessels——from sovereignty submerged lands based on lawful activities occurring outside Florida’s territorial jurisdiction.
Id. at 703-04 (footnote omitted).
The Cosmetic Surgery Case
As of this writing, the most recent opinion concerning the scope of agency rulemaking authority was rendered in Board
of Medicine v. Florida Academy of Cosmetic Surgery, Inc., 2002 WL 83679 (Fla. 1st DCA Jan. 23, 2002). The Cosmetic Surgery case involved a number of issues arising from several related rule challenges attacking both existing and proposed rule provisions. The relevant challenge, for present purposes, questioned the validity of an existing rule and a proposed rule
that together required (to simplify a little) physicians to obtain, as a condition of performing certain office surgeries, either a “transfer agreement” with, or staff privileges at, a local licensed hospital. The administrative law judge had found these provisions to be invalid, on the ground (according to the court) that the enabling statute was “not specific enough.” Id.
at *5-*6.
The Cosmetic Surgery panel cited Manatee Club as the controlling authority, relying expressly on the “specific grant/grant . . . specific” language examined above. The court then quoted the enabling statute as follows:
[The agency is authorized to] establish by rule standards of practice and standards of care for particular practice settings, including, but not limited to, education and training, equipment and supplies, medications including anesthetics, assistance of and delegation to other personnel, transfer agreements, sterilization, records, performance of complex or multiple procedures, informed consent, and policy and procedure manuals.
Id. at *5 (quoting Section 458.331(1)(v), Florida Statutes (1999); italics added by court).
The court held that this statute “clearly grant[ed]” the agency authority to require transfer agreements in lieu of staff privileges (or no relationship with a nearby hospital) as a condition of performing certain office surgeries. Although the court did not go into great detail about why it considered
that specific power to have been clearly conferred, its emphasis on the words “transfer agreements” as used in the statute suggests the rationale: Unlike Day Cruise, where the laws implemented were completely silent about day cruises and gambling, here the statute mentioned transfer agreements, and that was sufficient; whether the statutory language was specific enough, the court wrote, was “beside the point.” Id.
In contrast, on the specific power to require staff privileges, the court hedged just a bit. It reasoned:
Section 458.331(1)(v) clearly gives broad, unqualified, rulemaking authority to the [agency] to establish "standards of practice and standards of care for particular practice settings." It does not specify what those standards should be, or how they should be established, leaving such matters to the discretion of the Board. It seems to us relatively clear that level III office surgery is a "practice setting," and that the staff privilege provision constitutes a "standard[ ] of practice [or] standard[ ] of care."
Id. at *6 (emphasis added). In other words, the court found the statutory language to be clear enough to manifest a legislative intent to confer the requisite specific power, and thus held the rule valid.
An Analytical Framework
Considering Section 120.52(8), Florida Statutes, in conjunction with the trilogy of Manatee Club, Day Cruise, Cosmetic Surgery, it is possible to articulate an analytical
framework for resolving questions regarding rulemaking authority.
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. 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. To see this, suppose that in Manatee Club the specific power asserted by the agency had been described as the authority to establish exemptions
based on a prior governmental determination, manifested through the issuance of a permit, that the permitted development would not allow adverse impacts to occur. 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.4
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.
The Proposed Rule
In turning to the particular regulatory provisions at issue, it is concluded, as an initial matter, that the Division has the necessary grant of power to make rules generally. See Section 509.032(6), Florida Statutes (“The division shall adopt such rules as are necessary to carry out the provisions of this chapter.”). This grant of general rulemaking authority, however, is not sufficient, without more, to empower the Division to adopt the Proposed Rule. See Section 120.52(8), Florida Statutes.
In the discussion below, the Proposed Rule’s fourth sentence, which would require the Division to revoke its approval of any program whose provider “is found to have failed to keep [certain] information or to have knowingly participated in falsifying any training record,” will be examined first, followed by an analysis of the third sentence, which would impose a record-keeping requirement on providers that do “not directly administer training.”
The Fourth Sentence
None of the parties described, in so many words, the specific power or duty that the Division claims to be implementing through the Proposed Rule’s fourth sentence. Taking into account the litigants’ competing arguments and the language of the Proposed Rule, it is concluded that a fair
description of the specific power asserted——a description that tries to avoid begging the question——is this: The Division claims the specific power to revoke a provider’s program as a penalty for the provider’s violating a rule-prescribed standard unrelated to the efficacy of that provider’s program.5
As the source of this claimed power, the Division relies upon subsections (1), (3), and (4) of Section 509.049, Florida Statutes. Subsection (1) provides:
The division shall adopt, by rule, minimum food safety protection standards for the training of all food service employees who are responsible for the storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. These standards shall not include an examination, but shall provide for a food safety training certificate program for food service employees to be administered by a private nonprofit provider chosen by the division.
(Emphasis added). This statutory provision delegates a narrower rulemaking authority than that conferred in Section 509.032(6), Florida Statutes. Thus, to the extent the Proposed Rule falls within Section 509.049(1)’s field of operation, it must be compatible with any limitations or qualifications on the Division’s general rulemaking power prescribed therein. See State Board of Trustees of the Internal Improvement Trust Fund v. Day Cruise Association, Inc., 794 So. 2d 696, 701-04 (Fla.
1st DCA 2001).
Section 509.049(3), Florida Statutes, states:
Any food safety training program established and administered to food handler employees utilized at a public food service establishment prior to July 1, 2000, may be submitted by the operator or the provider to the division for its review and approval.
If the food safety training program is found to be in substantial compliance with the division's required criteria and is approved by the division, nothing in this section shall preclude any other operator of a food service establishment from also utilizing the approved program or require the employees of any operator to receive training from or pay a fee to the division's contracted provider. Review and approval by the division of a program or programs under this section shall include, but need not be limited to, the minimum food safety standards adopted by the division in accordance with this section.
(Emphasis added).
Section 509.049(4), Florida Statutes, provides:
Approval of a program is subject to the provider's continued compliance with the division's minimum program standards. The division may conduct random audits of approved programs to determine compliance and may audit any program if it has reason to believe a program is not in compliance with this section. The division may revoke a program's approval if it finds a program is not in compliance with this section or the rules adopted under this section.
(Emphasis added).
The final sentence of subsection (4) makes clear that the Division is empowered to revoke prior approval of a food safety training certificate program if the program violates
statutory or rule-based criteria. Because, however, a program is not an actor who can, through some act or omission, violate a statute or rule, it is evident that the Division’s authority to revoke a program on the basis of the program’s noncompliance was intended to reach situations involving a deficiency in the program’s content or design. Plainly, therefore, the last sentence of Section 509.049(4), Florida Statutes, does not confer upon the Division specific authority to punish a provider for committing offenses that do not affect the efficacy of that provider’s program.
In contrast, the opening sentence of Section 509.049(4), Florida Statutes, which requires that program approval be conditioned on a provider’s “continued compliance” with “minimum program standards,” authorizes revocation of approval based upon the provider’s conduct. Whether this particular statutory provision grants the Division authority to revoke a program’s approval because the provider has disobeyed a standard having no effect on how or what trainees are taught turns on the meaning of “minimum program standards.”
Section 509.049, Florida Statutes, neither defines this term nor uses it elsewhere. Complicating matters, the statute uses several similar-but-slightly-different terms, which raises the possibility that the legislature had several different sets of standards in mind. To review: Subsection (1)
refers to “minimum food safety protection standards” and instructs that “[t]hese standards shall not include an examination, but shall provide a food safety training certificate program . . . .” (Emphasis added). Subsection (3) ensures that a program “be in substantial compliance with the division’s required criteria” as a prerequisite for approval. (Emphasis added). The same subsection also provides that a program’s compliance with the Division’s “minimum food safety standards” is a necessary but not necessarily sufficient basis for approval. (Emphasis added). Subsection (4) includes the subject term——“minimum program standards”——and further authorizes revocation where the program fails to comply “with this section or the rules adopted [here]under.”
While the legislature’s use of different terms in the same statute ordinarily would be construed as indicative of an intent to convey different meanings thereby, it would be unreasonable (not to mention difficult) in the context of this statute to interpret the terms “minimum food safety protection standards,” “required criteria,” “minimum food safety standards,” and “minimum program standards” so as to give each a different meaning. Upon consideration of Section 509.049, Florida Statutes, as a whole, it is concluded that the legislature used the above terms interchangeably with the intent that all would have the same meaning.
The question, then, remains whether the legislature intended that the “minimum program standards” at issue include regulations governing the conduct of providers in areas that do not affect program efficacy. The Division contends that Section 509.049(1), Florida Statutes, manifests such intent. Of particular interest in this subsection are the exclusion of “an examination” from the set of permissible standards and the direction to “provide for a food safety training certificate program.”
In directing the Division to adopt standards that would “provide for” a “program” (but not include “an examination”), the legislature must have envisioned rules governing how food safety information should be taught. This language reveals a legislative intent that the Division’s minimum standards should address matters in addition to program content——and not be limited exclusively to prescriptions concerning what information must be imparted. It follows that the Division is empowered to adopt rules governing the conduct of providers——at least to the extent their conduct affects how and what trainees are taught under their respective programs.
For example, the Division could require that a program include a “classroom” component in which a qualified instructor lectures trainees, in person, for at least, say, three hours on specific topics. Such a standard would not be limited solely to
the content of the program (“what” trainees are taught) but rather would govern the method for delivering instruction (“how” trainees are taught).
The example shows, too, how a provider could fall short of minimum standards even if the content of its program were outstanding. If the above hypothetical standard were adopted and a provider’s instructor were lecturing for only one hour, then the provider would not be in continued compliance with the minimum standards, even if its instructor were covering all the required material in the shorter time, and even if the program, as designed and approved, called for a three-hour lecture. Under Section 509.049(4), Florida Statutes, the Division can revoke its approval of a program whose provider is not complying with standards regulating what and how trainees are taught.
The Division misreads the statute, however, in claiming the wider power to regulate, in a broader fashion, the business of providing a food safety program; nothing in Section 509.049, Florida Statutes, authorizes the Division to adopt standards unrelated to program efficacy. Rather, as a careful reading of the statute shows, the legislature empowered the Division to regulate programs directly, but to regulate providers only indirectly or secondarily, as and to the extent
necessary to ensure that they deliver programs satisfying all of the Division’s minimum criteria for programs.6
In its Proposed Final Order, the Division practically concedes the foregoing point:
Section 509.049 does not expressly authorize the licensing of program providers or the imposition of fines or penalties against providers. The only sanction expressly authorized in the statute is revocation of program approval.
Resp. Prop. Final Order, at 16. That the legislature chose not to empower the Division to license providers is powerful proof that the legislature did not intend to give the Division broad regulatory power over the business activities of providers.
The Division asserts that its lack of power to regulate providers is good reason to construe the statute so as to find authority to exercise the revocation power broadly. The Division points to Section 509.049(6)(b), Florida
Statutes——a grant of narrow regulatory power that permits the adoption of a rule requiring providers to keep records “concerning establishments where they provide training”——and argues that without the broad power to punish rule violators with revocation of program approval, the Division would be unable to enforce a clearly authorized rule. The Division makes the same argument regarding the offense (which the Proposed Rule would establish) of knowingly falsifying a training record:
Without the threat of revocation, it claims, providers could falsify records with impunity. The Division urges that Section
509.049 be construed to avoid these results, which it labels absurd, illogical, and unreasonable.
To be sure, the Division’s argument is compelling on its face. It does seem anomalous to authorize the promulgation of an unenforceable record-keeping requirement. And, who could be against punishing a provider that would knowingly falsify a training record? That sounds intuitively like an offense that is, or should be, sanctionable. Nevertheless, the Division’s position ultimately fails to persuade for several reasons.
First, the Division is mistaken when it says that, without the power to revoke a program’s approval, it would be powerless to enforce otherwise valid rules regulating provider conduct, such as a record-keeping requirement promulgated pursuant to the grant of narrow rulemaking authority set forth in Section 509.049(6)(b), Florida Statutes. While focusing on its lack of administrative remedies, the Division has overlooked its authority and standing to seek relief in circuit court. Specifically, Section 509.281(1), Florida Statutes, provides in pertinent part:
The division shall proceed in the courts by mandamus or injunction whenever such proceedings may be necessary to the proper enforcement of the provisions of this
chapter, of the rules adopted pursuant hereto, or of orders of the division.
Providers that violate the Division’s rules do so at the risk of being enjoined——which should provide a meaningful disincentive to provider misconduct.
Second, notice that in the first sentence of Section 509.049(4), Florida Statutes, the legislature used the term “minimum program standards” to describe the standard of conduct with which providers must continually comply, while in the last sentence of subsection (4) the legislature authorized revocation of programs that fail to comply with “this section or the rules
adopted under this section.” (Emphasis added). Earlier, it was found that the legislature intended the similar terms “minimum food safety protection standards,” “required criteria,” “minimum food safety standards,” and “minimum program standards” to have the same meaning. But the phrase “rules adopted under this section” is distinctive enough to stand apart from these synonymous terms; it is broader in scope, plainly inclusive of the minimum program standards but also connoting the embrace of any other rules that presently are, or might someday be, authorized under Section 509.049, Florida Statutes.
It is telling, then, that the legislature did not condition program approval on a provider’s continued compliance with all “rules adopted under this section” or authorize
revocation when a provider is not in compliance with the “rules adopted under this section,” because either objective could easily have been accomplished, if desired, merely by tweaking the statutory language. The requirement that program approval be subject to a provider’s continued compliance with “minimum program standards,” as opposed to all “rules,” looks especially significant in light of Section 509.409(6)(b), Florida Statutes, which specifically authorizes, not a minimum standard for programs, but a rule to require providers to maintain information concerning their clients.
As a result of this presumably deliberate choice of words, it must be concluded that the legislature intended revocation to be used as a punishment for violations that cause a program to fall below minimum program standards or otherwise fail to meet program-specific requirements——not for violations of any “rules adopted under” Section 509.049, Florida Statutes.
Third, ironically, it is the Division’s interpretation of the statute that unintentionally may lead to unreasonable consequences. This is because, pursuant to its interpretation, the Division threatens to punish innocent persons such as those licensees or their agents who, having purchased in good faith an approved program, suffer a loss when their property becomes worthless (upon revocation of approval) due to a provider’s misconduct unrelated to the efficacy of the program.
Consider this hypothetical. Suppose it is discovered that the author of a well-regarded textbook, a professor at a respected university, failed to provide proper attribution for several passages in his textbook which were copied nearly verbatim from other works. None of this plagiarism has affected the accuracy of the textbook; it remains a fine reference. The professor apologizes and promises that future editions of his book will be revised to properly footnote the borrowed material.
Undoubtedly, this professor should be disciplined by his university. The market, too, might properly penalize the professor, through diminished demand for his textbook as a result of the scandal. But surely no one seriously would suggest that the professor should be punished by making students who have already bought his book——the content of which was not compromised——stop reading it and purchase a different one.
Yet that, in effect, is precisely what the Division is proposing to do: punish a disobedient provider by making licensees who already own the provider’s program purchase another one, even though the program itself has not been compromised. Worse for these unfortunate licensees who have done nothing wrong, if they continue to use the provider’s now- disapproved program, then the Division might punish them. As well, innocent trainees may be put to the inconvenience of duplicative training——merely because a provider misbehaved in a
way that did not affect the training. The Division recognizes just such possibilities in its Proposed Final Order:
Once a program’s approval is revoked, establishments that were provided with that program must be advised as soon as possible. Otherwise, these restaurants will continue to use a now invalid program to train their employees, resulting in potential administrative fines for the licensed establishment and creating the need to repeat the training of each employee with an approved program.
Resp. Prop. Final Order, at 12.
Of course, if the hypothetical professor’s misconduct involved falsifying research results and incorporating fraudulent data into his textbook, then the consequences to the students justifiably might be different, despite their innocence, for clearly, if the textbook were revealed to contain materially false information, then using it for instructional purposes would be ill advised. So, too, would it be reasonable——and, more important, permissible under Section 509.049(4), Florida Statutes——for the Division to revoke approval of a program that, because of provider misconduct, is rendered misleading or deficient in terms of what or how trainees are taught.
The Proposed Rule, however, would use the blunt instrument of revocation to punish providers for problems, however serious, that do not concern program efficacy, damaging
not only the guilty providers but also innocent operators, agents of operators, and trainees. Inflicting needless damage on law-abiding participants in the food safety training process would be unjust and illogical, a consequence that the legislature could not have intended; hence, the statute must be construed to avoid such unreasonable results. See Nobles v.
State, 769 So. 2d 1063, 1066 (Fla. 1st DCA 2000); State v.
Anderson, 764 So. 2d 848, 850 (Fla. 3d DCA 2000).
Finally, Article I, Section 18, of the Florida Constitution, reinforces the conclusion that the Division is presently powerless to punish providers with program revocation for violating rules unrelated to program efficacy. This constitutional provision prohibits an agency from “impos[ing] [a sentence of imprisonment] or any other penalty except as provided by law.” The courts have construed this language to mean “that an agency possesses no inherent power to impose sanctions, and that any such power must be expressly delegated by statute.” Department of Environmental Regulation v. Puckett
Oil Co., Inc., 577 So. 2d 988, 992 (Fla. 1st DCA 1991)(emphasis added).
Pursuant to the constitutional limitation on the penal powers of administrative agencies, when the specific power being implemented through a challenged rule concerns the authority to impose a sanction, the question whether the statutory grant is
specific enough assumes some relevance, for the state constitution, as interpreted, requires not merely a grant of express power but an expressly delegated power.
Section 509.049 expressly delegates to the Division the power to revoke approval of a program either (1) when the provider fails to comply “with the division’s minimum program standards” or (2) when a “program is not in compliance with this section or the rules adopted [here]under.” Neither of these delegations is express enough, as a matter of state constitutional law, to authorize program revocation for a provider’s violations that do not affect the efficacy of its program.7
For the above reasons, it is concluded that Section 509.049, Florida Statutes, does not contain the specific power that the Division would implement through the fourth sentence of the Proposed Rule. Accordingly, this particular provision is an invalid exercise of delegated legislative authority.8
The Third Sentence
Under the Proposed Rule’s third sentence, a “program provider” who “furnishes program materials but does not directly administer training to a food service employee” must “maintain training information,” including “the name[s] of establishments where program materials have been provided, the date[s] these materials were provided, and the specific course which was
provided,” for a period “of at least three years from the date training is provided.”
The specific power that the Division claims as the source of authority for this proposed requirement can fairly be described as the power to impose a record-keeping requirement on providers that do not personally train employees but instead distribute program materials to licensees (or their agents) for their use in providing food safety training to employees.
According to the Division, Section 509.049(6)(b), Florida Statutes, confers the foregoing specific power. This particular provision authorizes the Division to make a rule requiring “[p]roviders to maintain information concerning establishments where they provide training pursuant to this section[.]” The Division argues that “[w]here a provider provides its approved program, e.g., a training manual, to a licensee who then furnishes it to employees, that program provider is ‘providing training’ just as surely as if the provider traveled to the restaurant and taught a class from that manual.” Resp. Prop. Final Order, at 18.
Whether the legislature, in enacting Section 509.049(6)(b), Florida Statutes, delegated to the Division the specific power claimed by the Division to be the power underlying the third sentence of the Proposed Rule depends on the meaning of the language used in Section 509.049(6)(b). It
is clear at the outset that this enabling statute does not specifically grant the specific power claimed by the Division, inasmuch as the statute does not speak, in any terms, of “direct” and “indirect” means of providing training. Because the question is not whether the statute is specific enough, however, the statute must be interpreted to determine whether the power claimed is a power conferred.
As a general rule, in deference to agency expertise, an agency’s interpretations of statutes for whose administration the agency is responsible, and an agency’s interpretations of its own rules, will not be overturned, either by the courts or administrative law judges, unless clearly erroneous. See State Contracting and Engineering Corp. v. Department of Transportation, 709 So. 2d 607, 610 (Fla. 1st DCA 1998).
From the general principle of deference follows the more specific rule that an agency’s interpretation need not be the sole possible interpretation or even the most desirable one; it need only be within the range of permissible interpretations. State Board of Optometry v. Florida Society of Ophthalmology,
538 So. 2d 878, 885 (Fla. 1st DCA 1988); see also Suddath Van Lines, Inc. v. Department of Environmental Protection, 668
So. 2d 209, 212 (Fla. 1st DCA 1996). However, "[t]he deference granted an agency’s interpretation is not absolute." Department
of Natural Resources v. Wingfield Development Co., 581 So. 2d 193, 197 (Fla. 1st DCA 1991).
Obviously, an agency cannot implement any conceivable construction of a statute or rule no matter how strained, stilted, or fanciful it might be. Id. Rather, “only a permissible construction” will be upheld by the courts. Florida
Society of Ophthalmology, 538 So. 2d at 885. Accordingly, “[w]hen the agency's construction clearly contradicts the unambiguous language of the [statute or] rule, the construction is clearly erroneous and cannot stand.” Woodley v. Department
of Health and Rehabilitative Services, 505 So. 2d 676, 678 (Fla. 1st DCA 1987); see also Legal Environmental Assistance Foundation v. Board of County Commissioners of Brevard County, 642 So. 2d 1081, 1083-84 (Fla. 1994)(“unreasonable interpretation” will not be sustained).
The pertinent statutory language will be examined with the above principles in mind. To begin, it is observed that neither subsection (6) nor any other part of Section 509.409, Florida Statutes, defines the term “provide training” as used on Section 509.049(6)(b). The same two words are used in subsection (5), however, possibly offering some clues as to what the legislature was thinking when it drafted the particular provision at issue. Section 509.049(5) states:
It shall be the duty of the licensee of the public food service establishment to provide training in accordance with the described rule to all employees under the licensee's supervision or control. The licensee may designate a certified food service manager to perform this function as an agent of the licensee. Food service employees must receive certification within 60 days after employment. Certification pursuant to this section shall remain valid for 3 years.
(Emphasis added). As this section makes clear, the obligation to “provide training” belongs to licensees. A licensee may appoint an agent to “perform this function,” i.e. to “provide training,” so long as the agent is a certified food service manager (“CFSM”). See Section 509.039, Florida Statutes (requirements for food service manager certification).
The term “provide training” as used in Section 509.049(5), Florida Statutes, does not appear to contemplate that providers who furnish training materials to licensees or CFSMs are, on that basis alone, “provid[ing] training” to employees. To see this, imagine that licensee Smith designates his manager, CFSM Jones, as his agent for the provision of food safety training to all of Smith’s employees. Pursuant to Section 509.049(3), Smith purchases an approved training program from ABC, Inc., a provider, which he provides to Jones, who passes it along to the employees whom he supervises. Under the Division’s theory, ABC, Inc. is providing training to Smith’s employees “as surely as” Jones is.
If the Division is correct, then Smith has delegated his obligation to provide training to Jones and to ABC, Inc. This might be permissible——if ABC, Inc. is a CFSM. Indeed, if the Division is correct, then all providers would need to be CFSMs or else licensees could not lawfully use their products. But, significantly, nothing in Section 509.049, Florida Statutes, requires that a provider be a CFSM. Because the legislature specified that a licensee’s duty to provide training could be delegated only to a CFSM and in the same breath authorized providers to market approved food safety training programs, it is highly likely that the legislature would have mandated that all providers be CFSMs if it understood the term “provide training” to include a provider’s selling of program materials to licensees and/or CFSMs for their use in providing training. Consequently, that the statute does not require providers to be CFSMs strongly counsels against the Division’s interpretation of the term “provide training.”9
While the above might be sufficient without more to deem the Division’s interpretation impermissible, careful examination of Section 509.049(6)(b), Florida Statutes, confirms that the Division has misconstrued the legislative intent. Although much attention has been focused on the meaning of “provide training,” the term is only part of an adjectival phrase in Section 509.049(6)(b) that describes the
“establishments” concerning which providers can be required to maintain information. That phrase begins with two words——the conjunction “where” and the pronoun “they”——which are the key to understanding the discrete rulemaking power conferred in Section 509.049(6)(b).
Together, “where” and “they” communicate that, for the record-keeping requirement to be imposed, training must be provided, by the provider, in or at an establishment.10 Put another way, it is the provider——not, significantly, the provider’s words or image or product——that must provide the training, and it (the provider) must do so in or at an establishment, not somewhere else. Consequently, as will be seen, in the context of Section 509.049(6)(b), the clause “establishments where they provide training,” permissibly interpreted, refers only to places where providers personally train employees.
First, consider this example. Suppose Smith wants to get into better physical shape. Because he prefers to exercise at home, Smith hires a personal trainer, Jones, who agrees to come into Smith’s home twice a week for the purpose of leading Smith through various aerobic exercises. There is no doubt that, in everyday conversation, Smith’s home reasonably could be called a place where Jones provides training.
Now imagine, alternatively, that instead of hiring Jones, Smith decides to purchase an instructional videotape which depicts a famous actress performing aerobic exercises for the purpose of leading viewers through such exercises. Would a reasonable person, using the English language as it is commonly understood, describe Smith’s home as a place where the actress provides training?
The answer is “no”——not under any reasonable understanding and use of the words “where the actress provides training.” The actress’ image, as recorded in the videotape, might, perhaps, be said to have provided training in Smith’s home (although ordinary people really do not talk that way, either), but not the actress herself; she never went there.
To take another example, after a person has read an instructional manual or textbook at home, neither he nor anyone else would, in ordinary discourse, refer to the reader’s residence as a place where the author had provided training. Again, this simply is not how reasonable people use the language. It might be said that the author’s words, as printed in the book, provided training in the reader’s home, but not the author himself.
The examples above illustrate the point that the creator is not the creation. If the creation is capable of communicating to others, as the written word “speaks” an
author’s thoughts or a videotape reproduces an actor’s voice, then the creation can provide (depending on its subject matter) information, entertainment, training, etc. in places where the author, actor, producer, or publisher never sets foot, much like the broadcast media are able to bring the voices and images of people from all over the world into our homes. And yet, while we might speak metaphorically about letting television personalities “into our homes,” we know that our homes are not literally places where television personalities provide entertainment. Even a devoted viewer of CNN would not describe his home as a place where Larry King provides interviews.
In interpreting the phrase “establishments where they [i.e. providers] provide training,” it cannot reasonably be concluded that the legislature intended that every restaurant where a provider’s manual or videotape is read or viewed be considered a place where (meaning “to which”) the provider has provided (meaning “delivered” or “sent”) training (meaning “training products or materials”). If the legislature had intended to allow the imposition of the broader record-keeping requirement that the Division would prescribe, it would have said something like: establishments where their [i.e.
providers’] products are used to provide training. Because the legislature did not say that, however, it must have intended, instead, to designate places (establishments) where (“at which”)
the provider itself——not merely its words, image, or product—— personally provides training (meaning “instruction”).
Because the enabling statute does not contain a grant of the specific power that the Division claims to be implementing through the third sentence of the Proposed Rule, that provision exceeds the Division’s rulemaking authority and
is invalid.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the third and fourth sentences of Proposed Rule 61C-4.023(4)(b), Florida Administrative Code, separately and together, constitute an invalid exercise of delegated legislative authority.
DONE AND ORDERED this 14th day of February, 2002, in Tallahassee, Leon County, Florida.
JOHN G. VAN LANINGHAM
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 14th day of February, 2002.
ENDNOTES
1/ The Division admitted these facts about Petitioner. See Resp. Prop. Final Order, at 6.
2/ As a function of the constitutional separation of powers, when the legislature delegates some of its authority to an executive-branch agency, the statutory grant must contain sufficient standards to guide the agency in the exercise of the delegated legislative authority——or else the statute will be struck down as an unlawful delegation. See Askew v. Cross Key Waterways, 372 So. 2d 913, 924-25 (Fla. 1978).
3/ Obviously, if the enabling statute were judicially declared unconstitutional under the non-delegation doctrine, then any rules predicated upon that statute would fall, too.
4/ 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.
5/ Standards that affect the “efficacy” of a program, as that term is used herein, include requirements concerning the content of the program, the design of the program, and the manner in which program content is delivered to food service workers (e.g. via “classroom-style” instruction, videotape, audiotape, compact disc, training manual, etc.)——requirements, in other words, that determine how and what trainees are taught. Requirements unrelated to program efficacy are those that do not alter or influence either the training process or the information imparted to trainees, such as the record-keeping obligations that the Proposed Rule would impose.
6/ The delegation, in subsection (4), of authority to audit programs cannot be construed as a broad warrant to examine providers——and hence is not a valid premise for inferring broad regulatory power over the business of providers. Clearly, the legislature was using the term “audit” in Section 509.049(4), Florida Statutes, to convey the sense of “attend[ing] (a course) without working for or expecting to receive formal credit.” See
Merriam-Webster’s OnLine Collegiate® Dictionary (definition of “audit”).
7/ This constitutional analysis, it should be noted, supplements and reinforces a conclusion that would have been reached anyway; the undersigned’s decision, in other words, does not depend on Article I, Section 18, but rather is buttressed thereby.
8/ In reaching this conclusion, the undersigned has not overlooked that, depending on the meaning of the term “training record” (which the Proposed Rule does not define), the offense of “falsifying any training record” could include violations affecting the efficacy of a program, for which revocation is an authorized punishment. Commonly understood, however, the words “training” and “record,” as used together in the present context, reasonably would include documents prepared by a provider in the ordinary course of business having nothing to do with what or how trainees are taught. Thus, because the Proposed Rule’s fourth sentence reaches situations falling outside the Division’s specific penal authority, it is invalid.
9/ The undersigned understands that providers who personally provide training to employees either must be, or must employ, CFSMs to perform this function. In such instances, however, food service manager certification is obtained not to satisfy any requirement specific to providers, but to become eligible for appointment as a licensee’s agent, which is a distinct role from that of provider.
10/ In common parlance, the term “where,” when used as a conjunction, means “at, in, or to which place <the town where she lives>.” See Merriam-Webster’s OnLine Collegiate® Dictionary.
COPIES FURNISHED:
Harold F. X. Purnell, Esquire Rutledge, Ecenia, Underwood,
Purnell & Hoffman Post Office Box 551
Tallahassee, Florida 32302-0551
Tiffany A. Short, Esquire
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-2202
Warren H. Husband, Esquire Metz, Hauser & Husband, P.A. Post Office Box 10909 Tallahassee, Florida 32302-2909
Kim Binkley-Seyer, Secretary 1317 Winewood Boulevard
Building 1, Room 202
Tallahassee, Florida 32399-0700
Hardy L. Roberts, III, General Counsel Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-2202
Susan R. McKinley, Director Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing 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 |
|---|---|---|
| Feb. 14, 2002 | DOAH Final Order | Petitioner demonstrated that certain provisions of Proposed Rule 61C-4.023(4)(b) constituted invalid exercises of delegated legislative authority. |
