Findings Of Fact Both parties filed proposed findings of fact. Except as noted below, I have incorporated the substance of these proposed findings into my findings of fact. Rejected DOT Proposed Findings of Fact The following proposed findings are rejected because they are not facts but only recitations of testimony: Rule 22I-6.006 - proposed finding 1 - second and third sentence. Rule 22I-6.037 - proposed finding 1 - second sentence. proposed finding 2 - first and second sentence. The following proposed findings are irrelevant to the resolution of this case: Rule 22I-6.006 - proposed finding 4 and 5 because the proposed rule applies to other agencies than DOT. proposed finding 6 because whether another method of notifying all bidders is more efficient is not the standard to determine validity of the rule. Rule 22I-6.037 - proposed finding 3, 5, and 7. Rejected DOAH Proposed Finding of Fact The following proposed finding of fact are rejected because these are more in the nature of legal argument or conclusions of law rather than findings of fact: Proposed finding 5 - sentences 5 and 6. Proposed finding 6 - second paragraph, sentences 1 and 2; third paragraph, sentence 4 and 5; and fourth paragraph Proposed finding 7 - second paragraph; third paragraph; and fourth paragraph, fifth sentence Proposed finding 8 - fourth paragraph; fifth paragraph; and sixth paragraph The follow proposed findings are rejected as being irrelevant to the resolution of the issues presented in this case. Proposed finding 1 - fourth sentence Proposed finding 6 - second paragraph, sentence 5 and 6 Proposed finding 7 - fourth paragraph, sentence 1 through 4 The following proposed finding is rejected as not supported by the record evidence: Proposed finding 6 - fourth paragraph, sentence 4 fifth paragraph, sentence 4 ANALYSIS Standing The first issue that must be addressed is DOT's standing. DOAH asserts that Dot lacks standing to challenge Proposed Rules 22I-6.035 and 22I-6.037. DOT has the burden to establish that it would be substantially affected by the proposed rules should they be adopted by DOAH. Section 120.54(5)(b), Fla. Stat. (1985); Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA 1979). In order to resolve whether DOT has met its burden, a review of the pertinent decisions on standing is appropriate. 5/ The case cited most often on standing is the First District Court of Appeal's decision in Florida Department of Corrections v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied, 359 So.2d 1215 (Fla. 1978). The court held that an inmate who had been confined for committing an assault while in prison lacked standing to challenge an existing rule concerning disciplinary confinement and forfeiture of gain-time. Because the inmate was no longer confined under the rule and had not lost any gain-time when he filed the rule challenge, the court reasoned that the inmate had not suffered an injury in fact at the time of the challenge, end therefore, was not substantially affected by the existing rule. Whether the inmate would be subject to the rule again depended on the likelihood he would commit another infraction. The court deemed this too speculative and subject to conjecture to grant standing. 353 So.2d at 1236. In a later case, the Florida Supreme Court overruled Jerry to the extent it required associations to demonstrate a specific injury to the organization itself rather then to some of its members. Florida Home Builders' Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982). In reaching its decision, the court warned against an overly restrictive application of the concept of standing in the rule challenge cases by noting: "Expansion of public access to activities of governmentally agencies was one of the major legislative purposes of the new Administrative Procedure Act." 412 So.2d at 352-53. Standing to challenge proposed agency rules was addressed in Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979). There, the court held that all women of child bearing age who received medicaid benefits were not substantially affected by a proposed rule denying medicaid payments for abortions except under limited circumstances. In denying standing to a woman who was not pregnant at the time of the rule challenge, the court specifically rejected the argument that standing to challenge a proposed rule under Section 120.54(4), Florida Statutes (1985), is less restrictive than standing to challenge an existing rule under Section 120.56, Florida Statutes (1985), by stating: There is no difference between the immediacy and reality necessary to confer standing whether the proceeding is to challenge an existing rule or a proposed rule. 367 So.2d at 1052. In Professional Fire Fighters of Florida v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981), the court held that a group of paramedics had standing to challenge rules establishing additional requirements for renewal of a paramedical certification. There was no showing on any of the individual paramedics had attempted to comply with the new rules or that anything in the new rules would disqualify them from retaining their certification. In rejecting the hearing officer's ruling that these individuals could not claim an injury because they had not yet applied for certification under the new rules, the court stated: The order below would preclude a challenge by anyone who had not first complied with a rule and suffered injury, no matter how clear the rule's applicability to, or substantial its effect on, the challengers... The APA permits prospective challenges to agency rulemaking and does not require that an affected party comply with the rule at his peril in order to obtain standing to chal- lenge the rule. A party may demonstrate standing by showing that a rule has a real and immediate effect upon his case as well as by proving injury in fact. 396 So.2d at 1195-96 (citations omitted) see also 4245 Corp., Mother's Lounge Inc. v. Department of Beverage, 345 So.2d 934 (Fla. 1st DCA 1977). The court distinguished Jerry and Alice P. on the grounds that the petitioners in the case before it were immediately subject to the rule which rendered their continued employment as paramedics unlawful without compliance with the rule. The individuals were presently affected by the rule because they worked in the area to be regulated. 396 So.2d at 1196. In Village Park Mobile Home Association v. Department of Business Regulation, 506 So.2d 426, 412 (Fla. 1st DCA 1987), the court on rehearing emphasized under the test for standing set forth in Fire Fighters that a party may show "that a rule has a real and immediate effect upon his case, as well as injury in fact." Standing was not found in Village Park for certain mobile home owners to challenge agency approval of the prospectus for a mobile home park because the prospectus only disclosed the method for raising rents and reducing services in the future. It was up to the landlord to implement the prospectus at some unspecified date in the future. 6/ Thus, no standing was found because the alleged injury was contingent upon the future actions of a third party. 506 So.2d at 433-34; see also Boca Raton Mausoleum v. Department of Banking, 511 So.2d 1060 (Fla. 1st DCA 1987). In this case, DOT has not alleged that it has suffered an injury in fact by Proposed Rules 22I-6.035 and 22I-6.037. That is not surprising with respect to Proposed Rule 22I-6.037 since it is a new rule that has not been implemented. However, with respect to the proposed amendments to Rule 22I-6.035, dealing with attorney's fees and costs, most of DOT's challenges concern portions of the rule that were not substantially changed in the proposed rule. For example, DOT objects to the provisions requiring an agency to file a response or affidavit and the provisions which allow for a waiver of the right to an evidentiary hearing when one is not affirmatively requested by either party. Rule 22I-6.035 presently contains such provisions. Therefore, the injury in fact test would be applicable. However, DOT has not presented any facts indicating that a prevailing small business party has ever filed a petition seeking costs and attorney's fees from DOT under Florida Equal Access to Justice Act. Consequently, no injury exists. The alternative test for standing is whether the proposed rules would have a "real and immediate effect" upon DOT. With respect to Proposed Rule 22I- 6.035, DOT has not met this test merely by demonstrating that it is a party to pending cases involving small business parties. In order for DOT to be affected by Proposed Rule 22I-6.035, a small business party would first have to prevail against DOT and then file a petition for costs and attorney's fees based upon its belief that DOT was not "substantially justified" in bringing the administrative action. Whether these contingencies, which are controlled by a third party, will occur in the future is open to conjecture and speculation. The type of immediacy envisioned by the court in the Fire Fighters case does not appear to be present with respect to Proposed Rule 22I-6.035. Therefore, DOT does not have standing to challenge this proposed rule. On the other hand, I conclude that DOT has standing to challenge Proposed Rule 22I-6.037. DOT presently has at least nine pending cases involving administrative complaints. The proposed rule on voluntary dismissals would be immediately applicable to DOT's ability to take a voluntary dismissal on those cases without being contingent upon the acts of a third party. Such a real and immediate effect on pending cases involving DOT is sufficient to provide DOT with the requisite standing. DOT does not have to invoke the rule by seeking a voluntary dismissal in order to have standing to challenge the rule as suggested by DOAH. See Professional Fire Fighters of Florida, 396 So.2d at 1195. Invalidity of Proposed Rules 22I-6.006 and 22I-6.037 The Florida Legislature has recently defined what constitutes an invalid exercise of Legislative authority. Section 120.52(8), Florida Statutes, as amended by Chapter 87-385, Section 2, Laws of Florida, provides: (8) "Invalid exercise of delegated legisla- tive authority" means action which goes beyond the powers, functions, duties delegated by the Legislature. A proposed existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: (a ) The agency has materially failed to follow the applicable rulemaking procedure set forth in s. 120.54; The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7); The rule enlarges, modifies, or con- travenes the specific provisions of law implemented, citation to which is required by s. 120.54(7); The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or The rule is arbitrary or capricious. These standards are similar to those used by the courts in Florida to test the validity of agency rules. See e.g., Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla. 1979); Humana Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985). In Agrico Chemical Co., the First District Court of Appeal stated: [I]n a 120.54 hearing, the hearing officer must look to the legislative authority for the rule and determine whether or not the proposed rule is encompassed within that grant. The burden is upon one who attacks the proposed rule to show that the agency, if it adopts the rule, would exceed its author- ity; that the requirements of the rule are not appropriate to the ends specified in the legislative act; that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation or that the proposed rule or the requirements thereof are arbitrary or capricious. A capricious action is one which is taken without though or reason or irration- ally. An arbitrary decision is one not supported by facts or logic, or is despotic. Administrative discretion must be reasoned and based upon competent substantial evi- dence. Competent substantial evidence has been described as such evidence as a reason- able person would accept as adequate to support a conclusion. The requirement that a challenger has the burden of demonstrating agency action to be arbitrary or capricious or an abuse of administrative discretion is a stringent one. 365 So.2d at 763. In this case DOT has the burden to demonstrate that adoption of Proposed Rules 22I-6.006 and 22I-6.037 would constitute an invalid exercise of legislative authority. Proposed Rule 22I-6.006 DOAH is statutorily authorized "to adopt reasonable rules to carry out the provisions of this act [Chapter 120]." Section 120.65(7), Fla. Stat. (1985). Regarding bid protests, an agency is required to forward a protest to DOAH for an evidentiary hearing in accordance with Section 120.57(1), Florida Statutes (1985), whenever there is a disputed issue a material fact. Section 120.53(5)(d)2, Fla. Stat. (1985). Section 120.57(1) sets forth certain procedures for conducting evidentiary hearings and proceedings where the substantial interests of a party are determined. In light of these statutory provisions, DOAH proposes to amend Rule 6.006 by requiring that an agency send a copy of the notice of hearing to all bidders, other than the protesting bidder, and attempt to telephonically notify these bidders of the date, time, and place the hearing. The purpose of this requirement is to give notice of the deadline to file a motion to intervene in the protest proceeding to the successful bidder, as well as all other bidders who had not filed a timely protest. Motions to intervene must be filed within five days prior to start of an evidentiary hearing. Fla. Admin. Code Rule 6.010. DOT persuasively argues that this portion of Proposed Rule 22I-6.006 requires an agency to do a useless act because any bidder that has not flied a timely protest is precluded from gaining party status in a bid protest proceeding by filing a motion to intervene. I agree. Section 120.53(5), Florida Statutes (1985), requires an agency to provide notice of its decision, or intended decision, concerning a bid solicitation. The notice must contain the following statement: "Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." Paragraph (b) of Section 120.53(5), provides: Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under chapter 120. The formal written protest shall state with particularity the facts and law upon which the protest is based. These statutory provisions are clear and unequivocal. An unsuccessful bidder must file a protest within the 72 hour limitations period in order to participate in further Chapter 120 proceedings. Xerox Corp. v. Florida Department of Professional Regulation, 489 So.2d 1230 (Fla. 1st DCA 1986); see also Capelletti Brothers v. Department of Transportation, 499 So.2d 555 (Fla. 1st DCA 1986)(72 hour deadline applies to protest challenging bid specifications). An adversely affected bidder cannot, and should not be allowed to, gain a back door point of entry to obtain party status in a bid protest proceeding by filing a motion to intervene when the bidder has already waived its right to participate in the proceeding. The only substantially effected entity that would be entitled to intervene in a bid protest proceeding is the successful bidder. Therefore, there would be a valid purpose in adopting a rule that required the successful bidder to receive the notice of hearing so that it would be aware of the deadline for filing a motion to intervene. However, as to all other non-protesting bidders, there is no statutory basis for providing the notice of hearing to them in light of what appears to be a clear prohibition against allowing those bidders to obtain party status after failing to file a timely protest pursuant to Section 120.53(5)(b), Florida Statutes (1985). DOAH argues that the need for subsection (2) of Proposed Rule 22I-6.006 is dramatized by the case of Spillis Candella and Partners, Inc. v. School Board of Dade County, No. 86-3002 Bid. There, the hearing officer determined that the agency never complied with the notice requirements triggering the 72 hour limitations period. Therefore, the protest filed in that case was determined to be timely since the 72 hour time limit had not expired. This single case does not provide justification for requiring agencies to give notice of the evidentiary hearing to all unsuccessful bidders in all bid protest cases. No evidence was adduced indicating that the failure to provide the requisite statutory notice issue raised in the Spillis Candella case had ever occurred in any other bid protest proceeding that had come before a DOAH hearing officer. Even if this had been a recurring problem, subsection (b) of the Proposed Rule 22I-6.006 could have been more closely tailored to remedy issues similar to that raised in Spillis Candella. The rule should have limited an agency's responsibility to provide a notice of hearing to all unsuccessful bidders if the agency had not previously complied with the notice requirements of Section 120.53(5), Florida Statutes (1985). 7/ In light of the foregoing, I conclude that subsection (2) of Proposed Rule 22I-6.006 is arbitrary because it requires agencies to provide notice of a bid protest hearing to bidders who have waived their right to become parties in the proceeding. The rule also contravenes Section 120.53(5)(b), Florida Statutes (1985), which contemplates that only timely protestors may participate as parties in a bid proceeding. 8/ Subsection (3) is also invalid because it requires that an agency provide to the hearing officer proof that it has complied with subsection (2). DOT's remaining objections to Proposed Rule 22I-6.006 are without merit. The fact that all agencies involved in bid protests must adopt rules end procedures for the resolution of such protests, and that the Administration Commission shall also adopt model rules on the same subject, does not indicate a legislative intent to preempt DOAH from adopting rules pertaining to the procedures for conducting bid protest hearings. Section 120.53(5)(a) and (f), Fla. Stat. (1955). In addition, Section 120.57(1)(b), Florida Statutes (1985), does not prohibit non-parties from receiving notice of an evidentiary hearing. Proposed Rule 22I-6.037 DOT advances numerous arguments in support of its contention that subsections (2) and (3) of Proposed Rule 22I-6.037 constitute an invalid exercise of legislative authority. I am persuaded by two of these arguments that DOT's position has merit. First, with respect to subsection (2), the proposed rule provides a hearing officer with the discretion to grant a motion for voluntary dismissal "upon such terms and conditions as the hearing officer deems just and proper." This language fails to provide any guidance to a hearing officer or to the parties in an administrative complaint proceeding as to what conditions a hearing officer could impose for allowing the agency to withdraw its complaint without prejudice. Instead, the rule gives the hearing officer unlimited discretion to impose any condition the hearing officer subjectively believes is "just and proper." These words cannot be construed as words of limitation because it must always be presumed that a hearing officer will rule in a manner that he or she believes is just and proper. Thus the elimination of the "just and proper" language from the rule would not give any more discretion to a hearing officer than is presently granted by the proposed rule. The fact that Florida Rule of Civil Procedure 1.420(2) provides that a trial court may grant a voluntary dismissal filed after submission of a case to the court "upon such terms and conditions as the court deems proper," does not provide a basis for concluding that subsection (2) of Proposed Rule 22I-6.037 is valid. The Rules of Civil Procedure were adopted pursuant to the inherent power of the courts, a power that administrative agencies do not possess. Hillsborough County Hospital Authority v. Tampa Heart Institute, 472 So.2d 748, 753-54 (Fla. 2nd DCA 1985). Agency rules may not violate the standards set forth in Section 120.52(8), Florida Statutes, as amended by Chapter 57-325, Section 2, Laws of Florida. In this case, subsection (2) of Proposed Rule 22I- runs afoul of paragraph (d) of Section 120.52(8), Florida Statutes, as amended, which provides that a rule is invalid if [t]he rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency." Therefore, subsection (2) of Proposed Rule 22I-6.037 is invalid. Subsection (3) of the proposed rule is also invalid but for a different reason. Unlike subsection (2), nothing is left to the parties' imagination as to the consequences an agency will encounter if it files a notice of voluntary dismissal of an administrative complaint containing nonjurisdictional allegations that were previously the subject of a voluntary dismissal. Those nonjurisdictional factual allegations contained in both complaints will be deemed dismissed with prejudice. The issue with regard to this rule provision is whether DOAH has the statutory authority to adopt a rule that requires dismissal of an administrative complaint with prejudice under these circumstances. Although no cases are directed on point, two district court of appeal decisions are instructive. In Great American Bank v. Division of Administrative Hearings, 412 So.2d 373 (Fla. 1st DCA 1981), the First District Court of Appeal revised a hearing officer's order imposing sanctions for a party's failure to make discovery and for a witness' failure to give responsive testimony. The court ruled that certain portions of the model rules, which purported to give such authority to a hearing officer, were invalid because they conflicted with the discovery enforcement provisions found in the Administrative Procedure Act. Section 120.58(3), Fla. Stat. (1981). The Legislature subsequently amended Section 120.58 to specifically grant hearing officers the authority to pose sanctions to effect discovery. Ch. 84-173, Laws of Florida. In Hillsborough County Hospital Authority v. Tampa Heart Institute, 472 So.2d 748 (Fla. 2d DCA 1985), the Second District Court of Appeal declared Model Rule 28-5.211 invalid to the extent the rule authorized a hearing officer to impose sanctions, including dismissal, to enforce procedural orders. The court rejected the argument that the same general rulemaking authority relied upon by DOAH as authority for Proposed Rule 22I-6.037, Sections 120.53 and 120.65(7), Florida Statutes (1985), authorized the model rule. Rather, any rule that provides a sanction in the form of a penalty must be based upon explicit statutory authority such as that found in Section 120.58(1)(b), Florida Statutes (1985), or Section 120.57(1)(b), Florida Statutes (Supp. 1986). 9/ 472 So.2d at 747-48. Subsection (3) of Proposed Rule 22I-6.037 imposes the sanction of dismissal with prejudice. However, in contrast to the specific saction authority granted to hearing officers in Sections 120.58(1)(b) and 120.57(1)(b)5, no provision in Chapter 120 specifically authorizes DOAH to impose a sanction under the circumstances set forth in subsection (3) of Proposed Rule 22I-6.037. Therefore, while I find the purpose of adopting subsection (3) of the proposed rule, to ensure failness, is laudable, this portion of the rule is invalid because DOAH does not possess the requisite legislative authority to adopt such a rule. Section 120.52(5)(b), Fla. Stat., as amended by Ch. 87-358, Section 2, Laws of Florida.
Findings Of Fact Herein, Ibanez seeks recovery of attorney's fees and costs she claims to have incurred in DOAH Case No. 91-3336R styled Silvia S. Ibanez et al. v. State of Florida, Department of Professional Regulation, Board of Accountancy et al. In that case, Ibanez challenged the validity of Board of Accountancy Rule 21A-20.012 F.A.C. (the "holding out rule"). Ibanez unsuccessfully tried to initiate that case by filing a petition on May 10, 1991 with the Department of Professional Regulation. Ibanez successfully initiated the rule challenge on May 30, 1991, by filing with DOAH a Petition for Formal Administrative Hearing under Section 120.56 F.S. This type of action is commonly referred to as a "challenge to an existing agency rule." In such a case, the Petitioner is fully the initiator, challenger, or sword-wielder in the proceeding and bears both the duty to go forward and the burden of proof. Ibanez initiated the rule challenge in her capacity as a licensed certified public accountant (CPA). She is a sole practitioner and an employee of a law firm called "Silvia S. Ibanez, P.A.," but the law firm "Silvia S. Ibanez, P.A.," was not a party and did not participate in the rule challenge, except as one of several legal representatives for Silvia S. Ibanez, the individual. The Board participated in the rule challenge case to defend the holding out rule. The Florida Institute of Certified Public Accountants (FICPA) intervened in the rule challenge in support of the position of the Board that the holding out rule was valid. While Ibanez' petition in the rule challenge contained a prayer for "other appropriate relief, including award of costs as appropriate," her petition therein did not request an award of attorney's fees. Ibanez' Proposed Findings of Fact and Conclusions of Law and her accompanying Memorandum of Law submitted after formal hearing for that case, both of which pleadings were dated October 11, 1991, did not contain proposed findings of fact or proposed conclusions of law addressing the issue of attorney's fees and costs. Neither of Ibanez' post- hearing filings contained a request for attorney's fees or costs or a request to reserve jurisdiction in that case for such an award. The undersigned hearing officer rendered a final order declaring invalid the holding out rule on January 15, 1992. That final order did not award attorney's fees and costs, nor did it reserve jurisdiction to decide attorney's fees and costs at another time. Neither Ibanez nor any of her corporate entities nor any of her supporting intervenors filed any motion requesting a reservation of jurisdiction or requesting reconsideration. The Board and FICPA each appealed the final order in the rule challenge to the First District Court of Appeal in February 1992, but dismissed those appeals on May 6, 1992, by filing a Joint Notice of Voluntary Dismissal. The First District Court of Appeal issued an order acknowledging the Joint Dismissal on May 14, 1992. The Joint Dismissal and First District Court of Appeal Order were both attached to the material filed by the parties in this instant case. For purposes of deciding the pending motions to dismiss herein, the undersigned has considered the Joint Dismissal, the First District Court of Appeal Order, and the record in the rule challenge case, DOAH Case No. 91-3336R. Due to the unique arguments advanced in Ibanez' fees and costs motion (sic) herein, it also has been necessary and appropriate to consider the record in DOAH Case No. 91-4100. On May 22, 1991, a probable cause panel of the Board held a probable cause hearing involving Ibanez. As a result of that hearing, the Board initiated a disciplinary proceeding styled State of Florida, Department of Professional Regulation, Board of Accountancy v. Silvia S. Ibanez, DOAH Case No. 91-4100, by filing an administrative complaint on June 13, 1992. That case was a disciplinary action arising under Section 120.57(1) F.S. which was prosecuted by the Department of Professional Regulation on behalf of the Board against Ibanez. At one time, the disciplinary case was consolidated with the rule challenge case. The two cases were bifurcated prior to formal hearing of the merits of either case. FICPA never intervened in the disciplinary case, nor had they any standing to do so. The undersigned hearing officer conducted a 120.57(1) F.S. hearing in the disciplinary case on August 27, 1991, and issued a recommended order to the Board on January 15, 1992. The Board issued its final order in the disciplinary case on April 23, 1992. Therein, contrary to the recommended order, the Board held that Ibanez had violated Sections 473.323(1)(a), (f), (g), and (h) F.S. and Rule 21A-24.001 F.A.C. The Board accordingly issued a reprimand to Ibanez, which reprimand was stayed by the Board pending appeal. Ibanez has appealed the Board's final order in the disciplinary case to the First District Court of Appeal, which appeal is still pending. Ibanez served on July 9, 1992 her Motion for Attorney's Fees which is here under consideration. In doing so, Ibanez elected to use the style of the underlying rule challenge case, DOAH 91-3336R, the style of which still included intervenors James R. Brewster and American Association of Attorney Certified Public Accountants. Those intervenors have never attempted to appear in the instant fees and costs case and apparently seek no relief via Ibanez' pending fees and costs motion. The rule challenge case was final for all purposes before DOAH as of January 15, 1992 and before the District Court of Appeal on May 14, 1992. The DOAH case file for DOAH Case No. 91-3336R has been closed for several months. Ibanez' Motion for Attorney's Fees was received and deemed filed by DOAH on July 13, 1992. It was filed with DOAH sixty-eight (68) days after the rule challenge appeals were voluntarily dismissed by FICPA and the Board and sixty (60) days after the First District Court of Appeals entered its order ratifying the voluntary dismissal. Because petitions brought solely under Section 57.111 F.S. result in final orders, it is DOAH's standard operating procedure to open new files for all fees and costs cases arising under Section 57.111 F.S. Upon receipt of Ibanez' motion, DOAH's Clerk assigned Ibanez' motion the instant new case number (DOAH 92-4271F), primarily on the basis that the motion prayed for relief upon grounds of Section 57.111 F.S., among other statutes. The other statutory grounds cited in the motion were Sections 120.57(1)(b)5 and 120.59(6) F.S.
The Issue The issues in this case are whether the allegations set forth in the Administrative Complaints are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged, pursuant to Chapter 465, Florida Statutes (2006), with regulation of the practice of pharmacy. At all times material to this case, the Respondent was a licensed pharmacist in the State of Florida, holding license number PS 26142. On May 3, 2005, a Final Order (DOH-05-0782-S-MQA) was filed based on the stipulated resolution of disciplinary proceedings initiated against the Respondent by the Petitioner in DOH Case Nos. 2002-27092 and 2002-25746. The Final Order imposed a suspension of the Respondent's license as follows: Respondent's license to practice pharmacy shall be suspended until such time as Respondent petitions and appears before the Board and can demonstrate that he is able to practice pharmacy with skill and safety to patients. Proof of his ability to practice safely shall include an evaluation of respondent by the Professional Resources Network (PRN) and a recommendation from PRN to the Board that Respondent can practice pharmacy with reasonable skill and safety to patients. The Final Order imposed a probationary period as follows: Upon the termination of suspension of Respondent's license, Respondent's license shall be placed on probation concurrent with the PRN contract or three (3) years whichever is longer. If, after completing an evaluation of Respondent, the PRN deems it necessary for Respondent to execute a contract for supervision and/or treatment, the three-year probationary period shall run concurrent with the PRN's contract. During the period or probation Respondent shall be subject to the following terms and conditions: Respondent or his employer shall submit written reports to the Compliance Officer at the Board office. The written reports shall contain Respondent licensee's name, license number, current address and phone number; current name, address and phone number of each pharmacy in which Respondent is engaged in the practice of pharmacy; the names of all pharmacists, pharmacy interns, pharmacy technicians, relief pharmacists, and prescription department managers working with the Respondent. These reports shall be submitted to the Compliance Officer every three (3) months in a manner as directed by the Compliance Officer. * * * Respondent shall submit documentation evidencing that his employer, or if employed as a relief pharmacist, his supervision pharmacists(s) and the relief agency, have been provided with a copy of the Final Order describing these probationary terms within ten (10) days of the entry of the Final Order or upon initiation of employment. Respondent shall ensure that his employer or, if employed as a relief pharmacist, the supervising pharmacist at each pharmacy at which the Respondent works, submits written reports to the Compliance Officer for the Board of Pharmacy. These reports shall contain: the name, current address, license number, and telephone number of each pharmacy intern, pharmacy technician, relief pharmacist, and prescription department manager working with the Respondent in the prescription department; a brief description of Respondent's duties and responsibilities; and Respondent's work schedule. These reports shall be submitted by the employer to the Compliance Officer every three (3) months in a manner directed by the Board. The Final Order imposed an administrative fine of $2,000. In the stipulation for settlement of the disciplinary cases, the assessment of costs was addressed as follows: Respondent agrees to reimburse the Department for any administrative costs incurred in the investigation, prosecution, and preparation of this case, not to exceed eleven thousand dollars ($11,000). The total amount of the costs will be assessed at the time the stipulation is presented to the Board. The fine and costs are to be paid by the Respondent . . . within sixty (60) days of the filing of a Final Order accepting and incorporating this Agreement. The copy of the stipulation admitted into evidence at the hearing included a handwritten notation related to the time for payment of the fine and costs and appears to indicate that the 60-day deadline for payment was extended to six months. The source of the handwriting was unclear; but in any event, the Final Order adopted the agreed stipulation and assessed costs of $10,852.66. The Final Order extended the deadline for payment of the costs to six months from the date of the Final Order, but did not specifically reference the deadline for payment of the administrative fine. The evidence establishes that both the fine and the assessed costs were to be paid within six months of the date of the Final Order, or by November 2, 2005. The evidence establishes that the Respondent paid neither the fine nor the assessed costs by the November 2, 2005, deadline. There is no evidence that the Respondent has made any attempt to pay any portion of the financial penalty, and the $12,852.66 remained unpaid at the time of the administrative hearing. The Respondent's suspension was lifted pursuant to an Order of Reinstatement filed June 28, 2005, at which time the probationary period began. According to the Respondent's Responses to the Petitioner's First Request for Admissions, the Respondent was placed by "Healthcare Consultants" to work in relief status at the Winn-Dixie #736 pharmacy and at the Winn-Dixie #741 pharmacy for a total of five days during the month of August 2005. According to the terms of the stipulation as adopted by the Final Order, the Respondent's first quarterly report was due three months following the beginning of the probationary period, or approximately September, 28, 2005. Cheryl Sellers, a compliance officer for the Petitioner, was assigned the responsibility of monitoring the Respondent's compliance with his obligations under the May 3, 2005, Final Order. The Respondent had several extended telephone conversations with Ms. Sellers shortly after the Respondent's probationary period began. During the conversations, the specific disciplinary requirements of the stipulation and Final Order were discussed at length. Additionally, in 1997, the Petitioner had incurred a substantially similar penalty, including a suspension, a fine, and compliance with quarterly reporting requirements. It is reasonable to presume that the Respondent was aware of, and understood, his obligations under the May 3, 2005, Final Order. As was her standard practice, Ms. Sellers sent a package of information to licensees with disciplinary restrictions, including various forms, related to compliance with requirements set forth by Final Orders. The package was mailed by regular mail to the Petitioner on August 4, 2005; but for reasons unknown, the information was not delivered to the Respondent and was returned to the Petitioner by the postal service. The package was not re-mailed to the Respondent until October 12, 2005. The Respondent filed his quarterly reports on October 19, 2005, several weeks after the deadline had passed. Apparently the first Employer's Quarterly Report was completed by an individual identified as Robert Miller, presumably employed by Healthcare Consultants, an otherwise unidentified entity which supposedly placed the Respondent in the Winn-Dixie pharmacies for the August 2005 employment. Mr. Miller was not the pharmacist in charge of the Winn-Dixie units where the Respondent had been employed. By letter dated October 21, 2005, Compliance Officer Cheryl Sellers notified the Respondent that he was "not in compliance" with the May 3, 2005, Final Order and stated as follows: Guidelines for submitting Employer Quarterly Reports were sent to you on October 12, 2005, the Employer's Quarterly Report from Robert Miller received on October 19, 2005, is not acceptable. Efren Rivera the PDM at the Winn Dixie store #736 is the appropriate person to complete this form. [sic] The Employer's Quarterly Report subsequently submitted by Efren Rivera was dated and notarized on November 1, 2005, and was filed thereafter. The Respondent filed for Chapter 7 bankruptcy in late 2005 and was discharged from debt on January 31, 2006. The Respondent has asserted that his obligation to pay the administrative fine and assessed costs was discharged through the bankruptcy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Pharmacy, enter a final order directing that the Respondent pay a total of $16,352.66, to the Petitioner. The total reflects the $12,852.66 imposed by the May 3, 2005, Final Order and the additional $3,500 penalty related to the violations set forth herein. Additionally, the final order should extend the Respondent's current probationary period by 18 months to be served consecutively to the current probationary period. DONE AND ENTERED this 10th day of August, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 10th day of August, 2007. COPIES FURNISHED: Patrick L. Butler, Esquire Billie Jo Owens, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Denis R. Bousquet 5125 Cedar Springs Drive, Unit 203 Naples, Florida 34110 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Rebecca Poston, R.Ph., Executive Director Board of Pharmacy Department of Health 4052 Bald Cypress Way, Bin C04 Tallahassee, Florida 32399-1701
Findings Of Fact Based upon the stipulation of the parties, the following facts are found: Respondent, (hereafter HRS) notified Petitioner (hereafter Starke) of a disallowance in Starke's Medicaid cost report by a letter which was received by Starke on October 4, 1983. The disallowance letter informed the Petitioner that pursuant to Rule 10-2.35, Florida Administrative Code, any request for a formal hearing must be "received by" HRS within 30 days or the hearing shall be deemed waived. Starke mailed its petition for formal hearing on November 3, 1983, a Thursday. The petition was received by HRS on November 7, 1983, a Monday. HRS denied Starke's petition for hearing on the grounds that the request for the hearing had not been received by HRS within 30 days of the date Starke received notice. The date by which the Petition had to be received was November 3, 1983. If HRS had allowed three (3) days for filing by mail, the petition would have been timely filed.
The Issue The issues to be resolved in this proceeding concern whether proposed rules 59O-2, 59O-3, 59O-5, 59O-7, 59O-9 and 59O-10, Florida Administrative Code, which revise and replace existing provisions of the same rules, are invalid exercises of delegated legislative authority to the above-named agency, in light of the standards set forth in Section 120.52(8), Florida Statutes.
Findings Of Fact This case arose when the Respondent, BOARD OF CLINICAL LABORATORY PERSONNEL (BOARD), published notice of its intent to adopt certain amendments to the rules described above. Publication was on August 23, 1996. The general effect of the proposed rules is to change definitions related to the practice of clinical laboratory technology and technicianry; to change certain provisions dealing with the qualifications; testing, and licensure of technicians and to provide certain national examinations for licensure for directors of clinical laboratories. The Board was created by the legislature in 1992, to regulate clinical laboratory personnel. These authorities and duties are set forth in Part IV of Chapter 483, Florida Statutes. The Board’s purpose is to protect the safety and welfare of the public from the hazards of improper performance by clinical laboratory personnel. To this end the Board is required by law to prescribe minimal qualifications for clinical laboratory personnel. Clinical laboratory personnel are persons who perform clinical laboratory examinations on specimens taken from the human body for the purpose of diagnoses, management or treatment of a medical condition. The field of clinical laboratory science is divided into two (2) areas: anatomical, which includes the disciplines of histology (tissues), cytology (cells); and clinical. The largest group of licensees fall under the clinical area and are licensed under five (5) specialties: Microbiology, Serolgy/Immunology, Chemistry, Hematology, and Immunohematology. The five (5) disciplines are collectively known as general laboratory practice. Florida licenses four (4) categories of clinical laboratory personnel: Director, Supervisor, Technologist, and Technician. Clinical laboratories are subject to Federal and State Regulation. Part I of Chapter 483, Florida Statutes, is the “Florida Clinical Laboratory Law”. It provides for the qualification and licensing of clinical laboratories. Regulations adopted pursuant to the Federal Clinical Laboratory Improvement Amendments of 1988 (CLIA), established the standards that all laboratories must meet to be certified to perform testing on human specimens. The regulations under CLIA provide for the certification and registration of laboratories, but not of the personnel employed therein. Persons working in clinical laboratories are subject to the requirements and regulations imposed under Part IV of Chapter 483, Florida Statutes. In addition, the qualifications of personnel working in clinical laboratories are also regulated indirectly through federal law. Although testing personnel are not licensed pursuant to CLIA, one of the standards which must be met by laboratories licensed under CLIA is the employment of testing personnel qualified pursuant to specifically enumerated training and educational requirements. In addition to setting laboratory standards by discipline, CLIA also sets standards by three (3) types of testing complexity: Waived, Moderate and High Complexity. Waived Tests are those for which there are no personnel standards or laboratory regulations, other than the requirement of a “Certificate of Waiver.” High Complexity Tests, as indicated by their name, are more difficult to perform and require more intervention on the part of the analysts. The FLORIDA COALITION OF PROFESSIONAL LABORATORY ORGANIZATIONS, INC., is a not-for-profit corporation which has twelve (12) member organizations, eleven (11) of which are joined in this proceeding. The coalition and its member organizations are independent organizations which represent the licensed laboratory personnel who are licensed by the Board. The coalition was created in 1992, about the same time that the Board was created by the Florida Legislature. The coalition was organized for three (3) main reasons: to educate the members of the profession, monitor legislative activity that would affect the members and their ability to practice their profession, and to unify the “laboratory voice” within the state. The coalition has regularly monitored all activities of the Board and has intervened in support of Board rules under challenge in the past. The coalition, its individual organizations, and the licensed laboratory personnel who are members of these organizations are affected by the proposed rules because the changes to the rules in the training, licensure qualifications, licensure examination, licensure by specialty and scope of practice of medical technicians will affect not only the currently licensed medical technicians, but also the medical technologists and the laboratory supervisors and directors who work with and supervise the medical technicians. It has been shown that these proposed changes will allow medical technicians to be licensed under different and lower standards than is required in the current rules and will allow a broadening of the scope of practice of the licensed medical technicians, thus directly and adversely affecting the practice of the profession and the currently licensed professionals. The other proposed and challenged changes to the rules similarly affect the members of the coalition and Petitioner organizations. The Petitioners have demonstrated that the coalition and its member organizations represent the interests of its individual members, the licensed laboratory personnel and that a substantial number of its members will be affected by the proposed rules. The rules are thus within the scope of interests for which the Petitioner coalition and its member organizations were organized. The Board was newly created in late 1992 and inherited a set of rules for licensure and discipline of laboratory personnel from the Department of Health and Rehabilitative Services. The Board undertook a systematic review of these rules in order to make them current with the changed and modern practice of clinical laboratory science. The Board also considered the changes to federal law and regulations regarding the practice of clinical laboratory science, especially the law and regulations known as CLIA. All laboratories in the country must comply with conditions imposed under CLIA and the CLIA amendment provides detailed and specific conditions under which all laboratories must operate in order to perform laboratory testing. CLIA does not require laboratory personnel to be licensed but state regulations require licensure, as in Florida, and CLIA requires that individuals performing moderate and highly complex tests “possess a current license issued by the state in which the laboratory is located.” (See 42 CFR, Sections 493, Subpart M). Although the Agency for Health Care Administration, which licenses and inspects laboratories, is statutorily mandated to assure that the laboratories meet the CLIA requirements (See Sections 483.821, 483.035, 483.051(a), 483.172(4), Florida Statutes), the Board of Clinical Laboratory Personnel is not similarly mandated by the legislature. The CLIA provisions are not to be exceeded by the Board when it adopts rules for the licensure, education and training of personnel in “exclusive use” laboratories. These personnel and laboratories are not at issue in the present case. The Board’s representative testified that compliance with the CLIA regulations was an overall goal for the state of Florida because if the state regulation of laboratories meets or exceeds the CLIA requirements, then the state can obtain an exemption from the federal requirements, thus eliminating a dual set of regulations. It is clear, however, that the legislature has not mandated that the Respondent Board incorporate the CLIA regulations into the Board’s rules. The proposed rules at issue substantially modify the existing laboratory personnel rules, the essential change being the elimination of licensure of medical technicians by specialty, with the end result of the proposed changes being the licensure of laboratory technicians as “generalists”. The following proposed rules effect these changes: Rule 59O-5.004, Qualifications for licensure as a technician, is substantially rewritten so that an individual must successfully complete a Board-approved technician level training program of one year of integrated study in order to become licensed as a general laboratory technician.(Proposed rule 59O-3.001(l)) The current rule, 59O-5004(2)(b), allows an individual to complete a training program which consists of 400 clock hours per specialty, and a course in general laboratory practice. The specialties are: microbiology, serology/Immunology, clinical chemistry, hematology, blood banking, immunohematology, cytology, and histology. Proposed Rule 59O-5004(3)(a), creates a general licensure category for technicians encompassing the five specialties. The proposed rules further would effect a change from a specialty licensure of technicians to a general technician licensure by changing the examination requirements of Rule 59O- 7.001(12), so that a generalist examination covering microbiology, serology/immunology, clinical chemistry, hematology, and immunohematology is given, rather than the current two-part examination: Part A, consisting of one technician level specialty examination in each of the five above-cited areas, and Part B, consisting of an exam in general laboratory practice. (Current rule 59O-77.001(4), F.A.C.). The proposed rule changes also create a route for qualification to sit for the generalist technician exam by allowing various periods of practical experience, depending on an individual’s education level, rather than requiring any formal training in laboratory procedures. (Proposed rule 59O-5.0904(d)) The Proposed rules add a definition of “general clinical laboratory experience” in proposed rule 59O-2.003(18), which has no counterpart provision in the current rules. The proposed changes to the current rules also have the net effect of changing and broadening the scope of practice of medical technicians by changing the definition of “direct supervision,” removing the current language of “reviews results prior to being made available for patient care,” and adding the language “is responsible for the oversight of testing and reporting of results” (Proposed rule 59O-2.002(8)), and making changes in rule 59O-2.002(4) (the definition of technician). These changes, together with proposed changes to rule 59O- 10.005(2)(a), allow technicians to practice in their category of licensure under the proposed new definition of “direct supervision”. These changes remove the requirement that the work of technicians be reviewed by a technologist, supervisor, or director before or after the results are released to the public. The Board has testified that the proposed revisions in the technician rules (qualifications [59O-5], training [59O-3] and scope of practice [59O-10]) were made in order to align the Board’s rules with federal regulations (CLIA 88), yet federal regulations mandate review of results and specifically require that certain results be reviewed by supervisory personnel within twenty-four (24) hours. The existing rules provide for similar requirements, consistent with these federal standards, whereas the proposed rules eliminate these requirements, in contradiction to the stated reason for proposing the changes in the rules (i.e., to meet federal standards). Proposed changes to rule 59O-5.004(3)(6), set up qualifications for two (2) types of technicians, “general” and those who perform “highly complex” tests. The current rule provides for the licensure of one type of technician only. Proposed rule 59O-3.001(1) provides a requirement for a technician training program of one (1) year of integrated study, including the five (5) specialty areas making up the “generalist” category of technician. The current rule requires 400 clock hours in each of the five (5) specialty areas that make up the generalist technician program. An individual can no longer take training in only one (1) or more (up to five (5)) of the individual specialty areas. (Rule 59O-3.003(3), Florida Administrative Code). Proposed rule changes to 59O-3.002(2) are also made to allow non-licensed personnel to teach clinical laboratory science, whereas the current rule requires a person to be licensed as supervisor or technologist and provides that the instructor may teach only in a specialty area in which he or she is currently licensed. (Rule 59O-3.002(2), Florida Administrative Code). Proposed changes to rule 59O-3.003 allow the Board to generally adopt without review, and by reference, curriculum standards of the Department of Education for clinical laboratory training programs for laboratory technicians. The current rule requires the Board to actually review and approve the Department of Education standards in relationship to the requirements in the current Board rule. (Rule 59O-3.003(2), Florida Administrative Code). Challenge is also made to proposed changes to rule 59O- 3.003(4)(e)i., which removes the current requirement that a licensed technologist must have received the training required of a technician. (Rule 59O-3.003(3)). Proposed rule changes regarding the examinations for laboratory directors would require candidates for the director license, to take and pass nationally certified examinations (Proposed rule 59O-7.001(1)), rather than the Board and agency-created examinations, as allowed in current rule 59O- 7.001(1), Florida Administrative Code. The proposed rules were published in the August 23, 1996, Florida Administrative Weekly. The Board offered no testimony or evidence that any change in circumstances had occurred with respect to the examination and licensure of medical technicians in effect nor reasons why there should be a general examination and licensure, rather than specialty examination and licensure. Neither did the agency offer any change in circumstances that had occurred with respect to the other challenged proposed changes in the current rules. The overriding argument of the Board was that the new Board had considered the recently promulgated rules and had decided to make changes based on a change in the philosophy of the new Board. No articulation was made of this change in philosophy or the basis for it. The Board offered, at hearing, several reasons for the proposed changes to the examination and licensure of medical technicians. First the Board argued that the changes were philosophical, that new Board members had been appointed to the Board, and that this Board could not be bound by a prior Board. The Board also offered that the long-standing practice had been to examine and license technicians as generalists, and that the fairly recent changes had been “controversial.” Further, this recent change had been challenged by the Agency for Health Care Administration (AHCA) because of the increased costs to applicants of taking each of the specialty exams and concern over the implementation date of the new exams. It was shown that in October 1995, as a result of a challenge, the Board had agreed to re-visit this issue in the future. However, it was also shown that the agency had withdrawn its challenge and that the current rule had been promulgated and published in the Florida Administrative Weekly in December 1995. The challengers presented several reasons why the proposed technician exams and licensure changes, as well as the other proposed changes are invalid. First, the process under which these rules were proposed and adopted did not comply with the applicable rule-making procedures of the Administrative Procedures Act, especially in contrast to the past procedures which had been used by the previous Board. The previous Board had established a pattern of rule-making procedures which gave notice to the public, accepted public input and provided open, full debate and consideration before rules were adopted. Second, the current rules, including those regarding licensure and examination of medical technicians, had only recently been adopted after full consideration of the industry practices and needs and the pros and cons of general versus specialty exams and licensure and after a systematic review of the state of the profession. The challengers presented evidence that the prior Board, in establishing the specialty exam for technicians, had evidence before it from examination specialists that the former 100-question, generalist technician exam was a poor test of the candidates’ knowledge of the practice. A candidate could fail three (3) of the five (5) specialty areas which were tested on the general exam and still pass the exam and become licensed as a technician and could therefore practice in all five (5) areas. Further, the chair of the prior Board testified to the detailed information the various considerations and debate that the prior Board had undertaken in order to reach the decision to change to a specialty exam and licensure by specialty for technicians. The evidence shows that these rule changes began when the Board met in March 1996. At that time a long-term member of the Board became the new chair of the Board and two (2) new Board members were present at their first full Board meeting at that time. The Board received a report from the recently created and appointed credentials committee. That committee recommended that the examination for medical technicians be changed from the two- part specialty exam, (one portion testing general laboratory principles and the other testing individuals in up to six (6) specialties) to a general exam covering all of the specialty areas. The evidence shows that with very little discussion and no other information before them, the Board voted to change the exam rule and instructed their attorney to prepare the necessary rule language for them. For the next full meeting of the Board in June 1996, the Board received, reviewed and voted on a wholesale package of proposed rule changes covering many rules, including the changes to the examination and licensure qualifications and scope of practice for technicians here under challenge. The Board did not complete consideration of these rule changes and continued their discussions and voting at a July conference-call meeting. The Petitioners maintain that the vote taken to change the technician exam rule at the March 1996 Board meeting was not properly noticed, because the agenda that was published for the Board meeting did not contain any notice that a rule change was being proposed and no indication that action, a vote, would be taken to change a rule. Promulgation of such a notice was the standard operating procedure for agendas of the previous Board meetings. The Board representatives who testified alleged that the agenda for the March meeting was submitted in a timely fashion to comply with Board rule 59O-1.008(4), Florida Administrative Code, as well as Section 120.53(1)(b), Florida Statutes. The coalition’s witness testifying about this matter, however, never received the amended agenda; and she had been on the mailing list to receive such agendas, based upon previous activity with regard to the Board’s official business, including rule-making. The amended agenda added language to the effect that the credentials committee was scheduled to make a recommendation for the technician exam rule change (See item No.6, agenda of March 1996 Board Meeting, Respondent’s composite Exhibit No.1). The coalition chair testified that she had received and read the original agenda, but did not receive any notice that the rule change recommendation was to be made, or that a vote would be taken to change the rule. Previous to this time notice of possible rule changes had been provided to the public via the Board’s agendas. The coalition had regularly monitored proposed rule changes by obtaining and reviewing the agendas and, after considering the proposed changes, gave input to the Board about the proposed rule changes. Section 120.53(1)(d), Florida Statutes, requires that agency rules concerning scheduling of meetings and workshops shall provide: An agenda shall be prepared by the agency in time to insure that a copy of the agenda be received at least seven (7) days before the event by any person in the state who requests a copy and pays a reasonable cost of the copy. The agenda shall contain items to be considered in the order of presentation. After the agenda has been made available, change shall be only for good cause, as determined by the person designated to preside, and state it in the record. Notification of such change shall be at the earliest practicable time. One of the organizational rules of the Board-Rule 59O-1.008(4), Florida Administrative Code, contains essentially the same language as Section 120.53(1). It appears that the immediate agenda was not made available to the public seven (7) days prior to the March 1996 Board meeting. Further, no announcement of good cause for the change to the agenda was made by the chair of the Board “at the earliest practicable time,” or at any other time. The order of items on the March agenda was also re- arranged without prior notice to the public, so that when a vote was taken to accept the recommendation of the credentials committee and to change the specialty exam for technicians to a general exam, one of the Board members was out of the room. Members of the public were not present and might have wanted to be there. The re-arrangement of the agenda placed the vote on the credentials committee recommendation to change the technician exam in between votes on discipline hearings and denial proceedings. Section 120.53(1)(d), Florida Statutes, requires that the agenda list items “in order of presentation.” Moreover, it had been announced that a public workshop on rules was to be held the second day of the scheduled meeting as part of the Board’s March meeting. The agenda indicates a rules workshop and lists each of the current rule chapters of the Board. There were no specific, proposed rule changes noticed or proposed new rule language available for the public to review. The purpose of the workshop was to obtain public comments on any of the current rules. Questions were raised by the public at the public workshop meeting, concerning the vote taken the previous day to change the technician exam, especially since the specialty exam was to be given for the first time in October 1996. The rule providing for it had only become effective in December 1995. Some persons spoke in favor of the change of the examination to a general one, while others spoke against that change. In June of 1996, the proposed re-write of the rules concerning technician exams, training and experience requirements for licensure, changes to the scope of practice for technicians, and changes to the director exam, among other changes, was proposed and voted on by the Board. The proposed rules were written by the new chair of the Board. The Board did not finish considering the changes at the June meeting and it was announced what the Board would continue its review and vote on the proposed changes at the July conference-call meeting. No new agenda was published for that July conference- call meeting and the Petitioners maintain that votes taken at that meeting, and at the March 1996 meeting, render the rules invalid for the failure of the Respondent Board to materially comply with applicable rule-making procedures provided for in Chapter 120. The Petitioners contend that the rule-making procedures followed by the Board through the March to August rule-making effort were flawed because no public input was sought or allowed during the rule-making process. No public workshops or notice of rule development were announced, scheduled or held until the rules were published in the August 23, 1996, Florida Administrative Weekly. No public comment was accepted at the three (3) Board meetings where the rules were re-written and voted on. Drafts of the proposed rule changes were not available to the public at the June or July meeting, either prior to or during the meeting. The new chair of the Board and the Board Administrator appear to have instigated this major revision. It represents a change from the philosophy and prescription contained in the current rules, even though there was objection to the proposed changes and despite serious doubts about the necessity; the lack of proper debate and deliberation; and the speed of adoption, which were expressed by a number of Board members and by the Board attorney. The motives for such a radical change in so short a time after the prior rules became effective in December 1995, after a number of years of rule-making effort, deliberation and consideration thereon are not clear. The chair did express concern about upcoming changes to the Administrative Procedure Act, to be effective October 1, 1996, and her resultant desire to have the rule changes accomplished before the new Administrative Procedure Act went into effect. The credentials committee of the Board was newly created in January 1996, approximately a month after the previously-enacted rules took effect in December 1995. It was created for the purpose of reviewing credentials of candidates for licensure. It was made up of two (2) new members of the Board, and one member who had been on the Board for only approximately six (6) months. It held one meeting to review credentials and then immediately thereafter proposed a change to the technician’s exam: from the specialty exam, only enacted in December 1995, to the “generalist” exam. Once the decision was made to return to the general exam for technicians, then related rule changes were made to the training criteria for technicians, required of candidates to be able to sit for the exam. No cogent reasons were offered by the Respondent as to why the training program requirements for medical technicians were changed in the proposed rules, except to assert that a requirement in the current rule (enacted in December 1995) providing for a four-hundred (400) clock hour training program was eliminated because there were only two (2) locations where the courses were offered. The Board apparently decided that once the decision was made to return to a general exam for technicians, then there was no need to allow an individual to take four-hundred (400) clock hours of training in each specialty of the general category. The Petitioners maintain that the reason the four- hundred (400) clock hour training requirement in each specialty and in general laboratory practices was developed was that they provide specific, quantifiable training requirements, so that all potential candidates are certain of the requirements for licensure. The proposed rule, however, provides only a vague standard for one to employ in determining how much training is provided in each specialty area in the “one year of integrated study” the new rule would require. Thus there are no uniform standards and the Board will have to proceed on a case-by-case basis (making incipient policy) in determining whether a particular candidate has been properly trained. The proposed rule is vague in comparison to the current rule. The proposed rule could tend to lower the standards for training of technicians and would not, therefore, meet the legislative mandate concerning protection of public health. Various changes to the current rules will change the scope of practice for technicians in that they may perform laboratory tests and immediately release their tests results to the public without review by licensed technologists, supervisors or directors. The Board offered no clear reasons why these proposed changes were made. Instead, it traced the history of the review of the work of technicians and contended that the proposed rules would simply clarify conflicts in the current rule. It also considered that the previous Board had heard conflicting views about the proper review of technician test results. The Board offered no new or different studies or considerations that it had learned of since the adoption of the current rules in December 1995. The Petitioners traced the history of the difference between the scope of practice of technologists and technicians to support the maintenance of the distinction between the two in the current rules. Technologists, by training and tradition, are professionals who exercise independent judgment while performing the three (3) phases of the laboratory test — the pre-analytical, the analytical, and post-analytical phases. A technician is trained only to perform manual analytical tasks and thus does not possess the skills and training to properly assess and relate the wider body of knowledge to the current tests in order to determine if the test result is correct, needs to be re-run, whether the tests controls were proper or any of a number of other possible errors. The end result of the changes in the scope of practice rules for technicians will create a blending of the two (2) levels of licensure which will create confusion as to the extent and scope of permissible practice of technologists and technicians. The Board has proposed a new means whereby one can become licensed as a medical technician by experience. The Petitioners claim that allowing this means the Board is not requiring minimal standards for licensure to ensure safe practice of laboratory science, for a number of reasons. An individual is not required to have any formal training in laboratory science and the amount of experience required to sit for the exam is vague. If an individual has a high school diploma, five (5) years of “pertinent general laboratory experience” accrued within the last ten (10) years is necessary. If a candidate has an associates degree then four (4) years, or, if a bachelors degree, then three (3) years of pertinent general laboratory experience is required. The new definition of clinical laboratory experience is “a minimum of six months of full-time experience in at least four of the five categories: microbiology, serology/immunology, chemistry, hematology, and immunohematology.” This last definition is vague and indefinite, allowing the Board to decide on a case by case basis what “six (6) months” means and what “full-time” means. Moreover, the proposed rule does not require a minimum of six (6) months in each of the four (4) specialty areas. The current training requirement of four-hundred (400) clock hours in each specialty area, provides a clear standard to determine if the individual has been properly trained. In allowing an individual to sit for the exam without this defined training and with no clear experience route, the Board has arbitrarily lowered the standards for safe practice of laboratory science or has so vaguely stated the requirements that such lower standards can be effected in decisions made on a case-by-case basis. No rationale was offered in evidence for requiring an individual to have experience in four (4) out of the five (5) specialty areas that make up the general category. Thus an individual could qualify to take the general exam with no formal training, have an undefined amount of experience in only four (4) specialty areas, have no experience in one (1) of the five (5) areas and still become licensed. When this situation is combined with the evidence that an individual could pass the generalist exam by failing all of the questions in three (3) of the five (5) specialty areas, then the result is a failure by the Board to set adequate minimum standards for safe practice of laboratory science by the proposed rule. The Board provided no new evidence concerning why it had now decided to establish an experience route to examination and licensure, other than to simply contend that there had always been individuals who wanted to qualify by experience. The evidence shows that the prior Board had systematically and recently reviewed all of the medical technician qualification rules and had decided not to provide an experience means for qualification. No preponderant evidence was offered of a clear, logical rationale for such changes, only a few short months after the current rules took effect in December 1995 and before an opportunity was even afforded to administer the first scheduled examination under the new rules (in October 1996). The Board also seeks to change the “Director Examination Rule” to provide that only national certification examinations will be given, rather than the current state examinations. The qualification requirements that a candidate would have to meet to qualify to sit for the various national examinations exceed the current qualifications needed to sit for the state examinations. The evidence shows that the prior Board had received reports from the state examination services that the national certification examinations now proposed to be required do not meet the state examination services rules for national examinations. It was also shown that by changing the rule to require Director candidates to sit for certain specified national certification examinations that there would be some individuals who could qualify under the state requirements to sit for the Director examination, but who could not qualify to take any of the specified national examinations. Thus, under the current qualification rule for Director, which was not proposed to be changed, there would be no available examination for such individuals to take. No evidence was produced by the Board as to why it had proposed to change the Director examination rules or any evidence that it has received any different information from its examination services or other sources, compared to what the prior Board had heard and considered when it adopted the current Director examination rule, effective December 1995. The Petitioners also challenge the proposed changes that would apparently create two (2) types of technician licensure, “general” and “high complexity.” In light of the statutory definition found in Section 483.803, Florida Statutes, it would seem to create two (2) categories of technicians, those who perform general practice and those who do high complexity testing. The Board argued that it was re-arranging existing provisions found in several current rules into one rule regarding the qualifications needed by a medical technician in order to perform high complexity testing. Additionally, the Board maintains that it was aligning the Board’s rules with the training and education requirements in CLIA, that personnel must have if they are going to perform high complexity testing (only). The Respondent asserts that the proposed rule “mirrors” the CLIA requirements and that the current rule does not. The Petitioners maintain that there is no statutory authorization for the Board to place in its rules any qualification standards which would permit technicians to perform high complexity testing, merely for the purpose of meeting CLIA standards. The Board’s evidence indicated that this was desirable so that the state could qualify for an exemption from CLIA inspections. However, the Board did not present any evidence of any change in the CLIA regulations or any change in circumstances since the enactment of the current rules, that the current Board had heard, that would warrant making the proposed rules “mirror” the CLIA regulations. The Board presented no testimony in response to the Petitioners’ argument that two (2) types of licensure were being created, and especially in light of the testimony that the previous Board had accepted advice of its counsel not to create that type of provision. Proposed Rule 59O-3.002(2), would allow non-licensed personnel to teach clinical laboratory courses. The only evidence offered by the Board was that it had received comments about the advantages and disadvantages of the two (2) possible options—licensed versus non-licensed instructors and that it had decided to change the rule. The Board did not specify when these comments were received and did not present any evidence to show that any different data, studies or information had been received by the current Board when it decided to change the current rule. Further, Section 483.811(2), Florida Statutes, provides a statutory requirement for licensure of personnel engaged in training of students of laboratory science. Thus the proposed rule conflicts with the statute. The Petitioners also maintain that the Board has abdicated its oversight of development and establishment of laboratory testing, training standards and programs by incorporating by reference the requirements of the Department of Education in this area, when Section 483.811, Florida Statutes, requires it to perform oversight of the development of such standards. This is with reference to the proposed change to current Rule 59O-3.003. The Board presented no evidence for the reason for this change or if any circumstances had changed or new information had come to the attention of the current Board, since the current rule was adopted in December 1995. The proposed rule which changes current Rule 59O-3.003, would fail to require those trained at the technologist level to meet the training requirements of the technician level, as shown by proposed Rule 59O-3.004. The result will be that the technologists who supervise the technicians will not be required to meet the training requirements of the technician personnel they are supervising. This can lead to a general lowering of the standards designed to protect the public health in violation of the legislative mandate, referenced above. No evidence was offered by the Board concerning why these requirements found in existing Rule 59O-3.003(4)(e)i., were eliminated by the proposed Rule 59O-3.004. Findings of Fact as to Intervenor Paragraphs two (2) through five (5) of the Intervenor’s Proposed Findings of Fact are adopted by reference. They concern establishment of the Intervenor’s standing and the agency has stipulated that the Intervenor FABB has standing to challenge the procedural notice and the manner in which the agency implemented rule-making proceedings. A proposal to terminate the blood banking specialty, enacted by the rules which took effect in December 1995, as it pertained to the subject proposed rules, was never agendaed nor discussed at any meeting of the Board. Based upon un-contradicted testimony, it was apparent that a course of communication, cooperation and assistance had occurred between representatives of the agency and its predecessors and representatives of the Florida Association of Blood Banks (FABB) regarding the development and implementation of the rule pertaining to the blood banking specialty designation. This included communications from representatives of the FABB to the agency and its predecessors to set up a committee to resolve various licensure issues pertaining to unique needs of blood bank personnel. The agency and the FABB worked closely together for a number of years to address the problem and develop a rule providing for a blood bank specialty and examination. That rule was adopted in December 1995, and the first examination under that new rule was scheduled to be administered in October of 1996. At no point during the period that the Board was presumably considering repeal of the rule providing for the blood bank specialty and related changes to rules pertaining to technologists and technicians, did it communicate or otherwise notify the FABB of its intended action, until the filing of a Notice of Proposed Rules in the Florida Administrative Weekly on August 23, 1996. The agenda for the meeting held in connection with the workshop and Board meeting on March 7-8, 1996, made no specific notice that a decision to delete the blood banking specialty would be considered. Rather, it noted only that a workshop would occur in which the Board would receive input from the public. Drafts of the proposed rule changes were not available for review by the public at the June 13th, 14th, and 15th meeting of the Board. The Board did not receive any public policy input regarding termination of the blood bank specialty rule, from the time it was adopted in December of 1995 through the Board’s decision to repeal it in June 1996. On August 23, 1996, the agency filed a Notice of Rule Making. The Notice of Rule Making provided that if requested, a hearing would be scheduled within twenty-one (21) days of the notice. There was no evidence presented by the agency that at any time prior to publication of the notice of August 23, 1996, it had held workshops or otherwise explicated its decision to terminate the rules pertaining to the blood banking specialty. While the agency referred to several workshops which were held in March and June of 1996, there was no testimony that repeal of the blood banking specialty was agendaed or discussed.
Findings Of Fact Standing. The Petitioner, Darryl McGlamry, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. The Challenged Rule, Rule 33ER91-2, Florida Administrative Code. On January 23, 1991, the Respondent filed Rule 33ER91-1. This emergency rule was filed by the Respondent to alleviate problems created by a high increase in the number of close custody inmates caused by changes in the Respondent's rules during 1990. Pursuant to Section 120.54(9)(c), Florida Statutes, Rule 33ER91-1 was only effective for ninety (90) days. Therefore, Rule 33ER91-1 was due to expire on or about April 24, 1991. On April 23, 1991, the Respondent filed the Challenged Rule. The Challenged Rule is identical in its terms to Rule 33ER91-1. The Challenged Rule should have expired on July 22, 1991. The instant challenge was instituted on May 8, 1991, before the Challenged Rule expired. The amendments to Chapter 33-6, Florida Administrative Code, filed by the Respondent on July 1, 1991, do not repeal the effect of the Challenged Rule prior to July 1, 1991.
Findings Of Fact Petitioners, High Point of Orlando/Calton Homes (High Point) and Breedlove, Dennis and Associates, Inc. (BDA) were among named Respondents in a petition for formal hearing filed by Central Florida Wetlands Society, Inc. (CFWS) in DOAH Case number 91-8339. High Point was a Respondent in DOAH Case number 92-0364, also initiated by a CFWS petition. BDA was retained as consultant for High Point for a project in Orange County involving wetlands and requiring the evaluation of impact and the mitigation of that impact on the wetlands. A permit for the project was granted by the St. Johns River Water Management District (SJRWMD). In late 1991 High Point requested a permit modification when it was determined that mitigation could not be accomplished within the deadlines in the permit conditions. There had been delays in planting caused in part by delays in construction of the project's stormwater management system and it was apparent that the required plantings could not grow fast enough to comply with the mitigation conditions. The technical staff report recommending approval describes the modification as extensions of the deadlines for successful establishment of forested and herbaceous mitigation. CFWS is a Florida nonprofit corporation according to its articles of incorporation filed with the Secretary of State on August 3, 1990. Article III provides these purposes for the corporation: To educate on the roll [sic] of wetlands with emphasis on the values of preservation of wetlands and the prevention of destruction of same. To implement the national policy of no loss of wetlands. To coordinate with other environmental groups to focus attention on wetland preservation. All other things that are lawful under the charter of this corporation and under the laws of the State of Florida. (Exhibit filed at DOAH 8/21/92) On October 7, 1991, CFWS filed a petition for administrative hearing with the SJRWMD in opposition to the district's proposed grant of permit modification to High Point. The petition was verified and signed by Michael W. Mingea as President of CFWS. The petition did not identify CFWS as a corporation, but rather "a not-for-profit private organization under the laws of the State of Florida". The petition named as Respondents, High Point, SJRWMD, DBA and another alleged consultant for High Point, Dyer, Riddle, Mills and Precourt, Inc., (DRMP). The petition was forwarded by SJRWMD to the DOAH for hearing on December 30, 1991, and was assigned DOAH Case number 91-8339. On January 8, 1992, CFWS filed a petition for formal administrative hearing with the SJRWMD disputing a proposed consent order between High Point and SJRWMD assessing $2,463.60 penalty and costs for violation of the mitigation conditions and requiring a mitigation survey. Like the petition described in paragraph 4, above, this petition was signed and sworn by Michael Mingea and did not identify CFWS as a corporation. The Respondent named in the petition was SJRWMD. This petition was forwarded to the DOAH by the district and was received at DOAH on January 21, 1992. It was assigned DOAH Case number 92-0364. A motion in opposition to the petition was filed on January 28, 1992 by counsel for SJRWMD requesting dismissal based on Petitioner's lack of standing, as the consent order does not authorize any activity subject to the district's permitting authority. Further, the motion argued, any issues regarding the proposed permit modification would be addressed in pending case number 91-8339. In an order dated January 28, 1992, the two cases, 91-8339 and 92-0364 were consolidated and set for hearing in Orlando, Florida on June 16 and 17, 1992. On March 5, 1992 a telephone conference hearing was conducted on various pending motions and an order was entered on March 6, 1992 granting motions to dismiss the two consultant parties, BDA and DRMP. The order denied BDA's and DRMP's motions for fees and costs pursuant to Section 120.57(1)(b)5., F.S., based on a finding that the error in including the consultants as Respondents did not rise to the level of bad faith required for an award under 120.57(1)(b)5, F.S. The order granted SJRWMD's motion in opposition to the petition in number 92-0364 and closed the file in that case with remand of the petition to the agency. And finally, the order granted High Point's motion for a more definite statement in Case number 91-8339. The order required CFWS to file its amended petition within thirty days stating how the proposed permit modifications would adversely affect the waters of the state or otherwise violate statutes and rules governing management and storage of surface waters (MSSW) permits. On April 14, 1992 Karen West, Esquire, filed her notice of appearance on behalf of CFWS and a motion for extension of time of fourteen days to file a more definite statement. On April 21, 1992 Ms. West filed the Petitioner's notice of voluntary dismissal of the petition in number 91-8339, and an order closing file was entered. On April 28, 1992, High Point and BDA filed with the SJRWMD their motion for remand which resulted in the district's order of remand discussed in the preliminary statement, above. The sole issue for remand was these Respondents' entitlement to attorneys fees and costs. High Point and BDA also filed separate motions for sanctions dated May 21, 1992 requesting fees and costs of $6,766.88 for High Point and $1,096.49 for BDA. A telephone conference was conducted on June 11, 1992 on Karen West, Esquire's, motion to withdraw as counsel for CFWS. Michael Mingea, President of CFWS participated and stated that the society had no opposition to the motion. The Hearing Officer and parties then discussed procedural matters related to resolution of the fees case, DOAH Case number 92-3010F. Mr. Mingea asked for, and was given, two weeks to obtain substitute counsel prior to Petitioners commencing discovery. The parties agreed to conduct the final hearing by telephone on August 10, 1992. An order and notice of hearing was entered confirming these matters on June 17, 1992. Notwithstanding the parties' agreement, the August 10th hearing was continued because Petitioners were unable to effectuate discovery or serve subpoenas on Michael Mingea or Todd Swearingen, another CFWS board member. Despite frequent filings of well-drafted requests for extensions, responses to Petitioners' pleadings and similar documents, Michael Mingea never appeared at any of the several hearings scheduled in this case after his initial appearance on June 11th. Despite several explicit orders Mr. Mingea never appeared for deposition by Petitioners, either in person or by telephone. Yet, according to the testimony of other board members, Todd Swearingen and Marty Sharpe, only Michael Mingea initiated the petitions involving High Point and he, alone, was cognizant of the specific basis for those petitions. Marty Sharpe who appeared consistently on behalf of CFWS in this proceeding became a board member in February 1992, several months after the petitions were filed. Petitioners were wholly frustrated in their effort to obtain the discovery to which they were entitled with regard to the bases for the CFWS petition in Case number 92-8339 and its abrupt dismissal. In various written documents and attempts to provide evidence through affidavit CFWS argues that its motives were not bad faith; however, throughout this proceeding CFWS has effectively prevented Petitioners from testing those bare assertions through discovery or cross examination. Mr. Mingea apparently travels extensively with his regular employment and the organization's mail goes to a post office box where it is picked up by volunteers. Contact with the organization was most effectively made through Marty Sharpe who attempted, in turn, to reach Mr. Mingea and convey messages. In the absence of competent evidence to the contrary, the record in this and in the underlying cases, number 91-8339 and 92-0364 support a reasonable inference that the petition in number 91-8339 was filed for a frivolous purpose. The order granting CFWS leave to amend its petition acknowledged that the original petition was legally insufficient. The petition was not amended within the allotted period; but rather was voluntarily dismissed shortly after legal counsel appeared on behalf of the organization. This dismissal reduces, but does not eliminate exposure to liability for filing the initial petition. The fees and costs requested by the Petitioners here are reasonable. Those fees are supported by billing logs attached to the motions for sanctions and reflect an hourly rate of $100.00 for BDA and $160.00 for High Point. Douglas Rillstone testified to the reasonableness of a total of $9,592.00 for High Point, and $2,495.00 for BDA. Those totals are not supported by billing logs and it is not possible to determine the basis for those amounts beyond the original amounts requested.
