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.
The Issue Whether Florida Administrative Code Rule 61G4-15.008, constitutes an invalid exercise of delegated legislative authority because it enlarges, modifies, or contravenes Section 489.129(1)(a), Florida Statutes, and because it exceeds Respondent’s rulemaking authority; and Whether an interpretation of Section 455.227(1)(h), Florida Statutes, constitutes an unpromulgated “rule.”
Findings Of Fact The first 12 findings of fact are facts contained in the Stipulation: Prior to June 2005, Petitioner, Juan Cuellar, Luis Garcia, and Gerardo Quintero, received what appeared to be a valid Miami-Dade Building Business Certificate of Competency. Upon receipt, Petitioners applied to the Department of Business and Professional Regulation (hereinafter referred to as the “Department”), to obtain a registered contractor’s license using the Certificates of Competency. Based on the Certificates of Competency, the Department issued each Petitioner a registered contractor’s license bearing license numbers RG291103667 (Mr. Cuellar), RF11067267 (Mr. Garcia), and RF11067268 (Mr. Quintero). Petitioners each applied for a certificate of authority for their respective businesses, Cuellar Construction and Drywall (Mr. Cuellar), A.P.A. Plumbing Corp. (Mr. Garcia), and Q Plumbing Services Corp. (Mr. Quintero). Based on the fact the Certificates of Competency and the registered contractor’s licenses had been granted, the Department issued a certificate of authority to Cuellar Construction and Drywall, QB 41342; APA Plumbing Corp., QB 42763; and Q Plumbing Services Corp., QB 42825. At the time the Department issued Petitioners their registered contractor’s licenses and subsequent certificates of authority, it did so based solely on the Miami-Dade Building Business Certificates of Competency presented by Petitioners and the only information submitted to it. The parties stipulate that Petitioners were not entitled to their registered contractor’s licenses and certificates of authority because the Miami-Dade Building Business Certificates of Competency were not valid certificates. At the time of their applications to the Department, Petitioners were not qualified by any local jurisdiction or any other method necessary to receive a registered contractor’s license from the Department. The Department filed Administrative Complaints against Petitioners for the suspension or revocation of their licenses based on violations of Sections 489.129(1)(a), 489.129(1)(d), 489.129(1)(m), and 455.227(1)(h), Florida Statutes (hereinafter collectively referred to as the “Administrative Complaints”). (All references to Sections of Chapter 489, Florida Statutes, as they relate to the Administrative Complaint are to the 2005 version. All other references to Florida Statutes are to the 2007 version). Each Petitioner challenged the Administrative Complaint filed against him in DOAH Case No. 07-2823PL (Mr. Cuellar), DOAH Case No. 07-2824PL (Mr. Garcia), and DOAH Case No. 07-2825PL (Mr. Quintero). On December 13, 2007, the undersigned, as the Administrative Law Judge to whom the cases had been assigned, issued a Recommended Order in DOAH Case No. 07-2823PL (Mr. Cuellar), DOAH Case No. 07-2824PL (Mr. Garcia), and DOAH Case No. 07-2825PL (Mr. Quintero), determining that Petitioners violated Sections 489.129(1)(a), 489.129(1)(m), and 455.227(1)(h), Florida Statutes (hereinafter referred collectively as the “Recommended Orders”). The “Recommendation” in each of the Recommended Orders was, except for the name of the Respondent, the same as the following: Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Luis Garcia violated the provisions of Sections 489.129(1)(a) and (m), and 455.227(1)(h), Florida Statutes, as alleged in Counts I, III, and IV of the Administrative Complaint; dismissing Count II of the Administrative Complaint; requiring that Respondent pay the costs incurred by the Department in investigating and prosecuting this matter; giving Respondent 30 days to voluntarily relinquish his license; and revoking Respondent’s license if he fails to voluntarily relinquish it within 30 days of the final order. Based upon the foregoing, and the fact that no final decision has been entered by the Construction Industry Licensing Board (hereinafter referred to as the “Board”), Petitioners are facing the possible revocation or voluntary relinquishment of their licenses (an adverse impact whether they are “entitled” to the licenses or not), continued defense against the Administrative Complaints, and the payment of the cost incurred by the Department in prosecuting the Administrative Complaints. Should the Board revoke Petitioners’ licenses, they will also be precluded from re-applying for licensure for a period of five years pursuant to Section 489.129(9), Florida Statutes. Petitioners face the same consequence even if they voluntarily relinquish their license pursuant to Florida Administrative Code Rule 61G4-12.017(3)(a). The adverse consequences of the possible final action on the Administrative Complaints which they face stem in part from a finding that they have violated Section 489.129(1)(a), Florida Statutes, which provides the following: The board may take any of the following actions against any certificateholder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate, registration, or certificate of authority, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, impose an administrative fine not to exceed $10,000 per violation, require continuing education, or assess costs associated with investigation and prosecution, if the contractor, financially responsible officer, or business organization for which the contractor is a primary qualifying agent, a financially responsible officer, or a secondary qualifying agent responsible under 489.1195 is found guilty of any of the following acts: Obtaining a certificate, registration, or certificate of authority by fraud or misrepresentation. . . . . Petitioners were found in the Recommended Orders to have violated Section 489.129(1)(a), Florida Statutes, based upon an interpretation of that statutory provision adopted by the Board in Florida Administrative Code Rule 61G4-15.008, an existing rule which Petitioners have challenged in this proceeding (hereinafter referred to as the “Challenged Existing Rule”), which provides: Material false statements or information submitted by an applicant for certification or registration, or submitted for renewal of certification or registration, or submitted for any reissuance of certification or registration, shall constitute a violation of Section 489.129(1)(a), F.S., and shall result in suspension or revocation of the certificate or registration. Essentially the same conclusions of law were reached in the Recommended Orders concerning the application of the Challenged Existing Rule (in paragraphs numbered “23” through “25” or “25” through 27” of the Recommended Orders): While Respondent has not been specifically charged with a violation of Florida Administrative Code Rule 61G4- 15.008, the Department cited the Rule, which contains the following interpretation of what constitutes "[o]btaining a certificate, registration, or certificate of authority by . . . misrepresentation" in violation of Section 489.129(1)(a), Florida Statutes, in support of Count I of the Administrative Complaint: . . . . It is the Department’s position, that despite the fact that Respondent did not commit “fraud” in obtaining his license and a certificate of authority for [the business] and, in fact, did not knowingly submit false information to the Department in obtaining his license and the certificate of competency, “[m]aterial false statements or information” were nonetheless submitted by Respondent in support thereof. Florida Administrative Code Rule 61G4- 15.008, in defining what constitutes the act of "[o]btaining a certificate, registration, or certificate of authority by . . . misrepresentation” eliminates the need for the Department to prove any knowledge on the part of Respondent that he has made a material misrepresentation or any intent on the part of Respondent to rely upon a material misrepresentation. All that is required is proof that a material representation was made and that the representation was false. Petitioners have challenged the validity of the Challenged Existing Rule as being an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(b) and (c), Florida Statutes. Petitioners were also found in the Recommended Orders to have violated Section 455.227(1)(h), Florida Statutes, based upon an interpretation of that statutory provision advanced by the Department during the prosecution of the Administrative Complaints. Section 455.227(1)(h), Florida Statutes, provides that the following act constitutes grounds for which disciplinary action may be taken: (h) Attempting to obtain, obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the department or the board. (Emphasis added). The Department’s argument concerning the appropriate interpretation and application of Section 455.227(1)(h), Florida Statutes, advanced in the prosecution of the Administrative Complaints, was advanced in paragraphs 24 through 26 of the Department’s Proposed Recommended Order: Obtaining a certificate or registration in error as a result of a misrepresentation made during the application process is conduct proscribed by Section 455.227(1)(h), Florida Statutes. Respondent was issued a registration by error of the Department. To be issued a registration by the Department, an applicant must submit along with an application for registration, a copy of the applicant’s validly issued competency card from a local government licensing board . . . . Respondent submitted a fake competency card that appeared to be validly issued by the Miami Compliance Office. . . . If the Department had known Respondent’s Competency Card was fake and Respondents’ answer to the attest statement was false, the Department would not have issued Respondent a registration. Thus, since the Department did not have truthful and accurate information, the registration issued to Respondent was in error. The Department’s interpretation was described and accepted in the Recommended Orders (in paragraphs numbered “29” through “31” or “31” through 33”, in the Recommended Orders), as follows: In support of this alleged violation, the Department has argued that Respondent obtained his license “through an error of the department . . . .” That “error” was the Department’s reliance upon an improperly issued Miami-Dade building business Certificate of Competency. The evidence proved clearly and convincingly that the Department issued the Respondent’s license in “error.” While it is true that Respondent did not intentionally cause or even know of the error, the Department reasonably takes the position that Respondent obtained his license nonetheless as a result of this error and that is all that Section 455.227(1)(h), Florida Statutes. The Department has proved clearly and convincingly that Respondent violated Section 455.227(1)(h), Florida Statutes [requires]. Although not specifically quoted in their Petition in this case, Petitioners have quoted what they believe is the unpromulgated rule of the Board which they are challenging in this case in paragraph 60 of Petitioner’s Proposed Final Order (hereinafter referred to as the “Challenged Language”): . . . . Essentially, the Board applies the following unadopted rule when applying Section 455.227(1)(h): Disciplinary action may be taken pursuant to Section 455.227(1)(h), Florida Statutes, where an individual attempts to obtain a license through an error of the department even if the individual did not have knowledge of the error. As of the date of the final hearing of this matter, the Board had taken no action on the Recommended Orders.
The Issue Whether Petitioner's Petition Seeking an Administrative Determination of the Invalidity of an Existing Rule (Petition) should be dismissed on the ground that the "challenged rule in this proceeding has been effectively repealed by the Florida Legislature by Section 626.854(11), Florida Statutes, effective October 1, 2008," as requested by Respondent.
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.
The Issue By means of two consolidated rule challenge petitions, Petitioner seeks determinations that a specified agency policy and practice is an agency statement which is an invalid unpromulgated rule and that certain specified existing agency rules are invalid for other reasons. In view of the number of and the nature of the issues in these two cases, it is perhaps easiest to describe the issues in each of these cases in the words chosen by Petitioner. The petition in Case No. 04-4398RU describes the issues as follows: Whether Florida Board of Medicine's uniform "nod an wink" nonrule policy and practice of uniform licensure denial to anyone on probation is: (i) an "Agency Statement of general applicability that implements, interprets, or prescribes law or policy;" (ii) and "Agency Statement," defined as a "Rule;" (iii) "Rule," unpromulgated by mandatory and compulsory rulemaking procedures; and (iv) an invalid exercise of delegated legislative authority in violation of § 120.54(1)(a), Fla. Stat. (2003), as defined in § 120.52 Fla. Stat. (2003) and within the meaning of § 120.57(1)(e)? Whether the Board's failure to provide notice to prospective applicants of its unpromulgated rule policy and practice of uniform licensure denial to anyone on probation is [a] violation of due process requirements of United States and Florida Constitutions and of § 120,57(1)(e)(2)(e), Fla. Stat. (2003)? Whether Florida Board of Medicine's final Administrative Order, Order No. DOH- 04-0662-FOF-MQA, dated June 17, 2004, denying Petitioner's Application for Temporary Certificate to practice in Areas of Critical Need -- an Agency action based on an unpromulgated rule -- is null and void, pursuant to §120.56(4)(d), 120.56(4)(e)(5) and 120.57(1)(e), Fla. Stat. (2003)? Whether attorney fees and costs [are] to be awarded to the Petitioner pursuant to §120.595(4), Fla. Stat. (2003)? (Emphasis in original.) The petition in Case No. 04-4571RX describes the issues as follows: Whether all the relevant provisions of Rule 64B8-8.001 F.A.C. that punish or sanction Applicants in whole or in part -- as promulgated in Rules 64B8-8.001(1); 64B8- 8.001(2); and 64B8-8.001(2)(b) F.A.C. -- are an invalid exercise of delegated legislative authority in violation of § 120.536(1), Fla Stat. (2000), as defined in § 120.52(8), Fla. Stat. (2003)? Whether the Board's Final Administrative Order, Order No. DOH-04-0662- FOF-MQA, dated June 17, 2004, denying Petitioner's Application for Licensure -- an Agency action based on an invalidated rule - - is null and void? Whether attorney fees and costs [are] to be awarded to the Petitioner pursuant to §120.595(3), Fla. Stat. (2003)?
Findings Of Fact Findings incorporated from findings of fact in Case No. 03-4433 Petitioner is a medical doctor, presently licensed to practice medicine in the State of New York. Petitioner signed a Florida Department of Health Board of Medicine Application for Temporary Certificate to Practice in an Area of Critical Need on June 19, 2003. Question number 13 on that application form asked, “Have you ever had any Medical/professional license revoked, suspended, placed on probation, received a citation, or other disciplinary action taken in any state territory or country?” Petitioner answered “yes” to question number 13. The Notice of Intent to Deny issued by the Florida Board of Medicine cited as the only reason for denial “[t]he applicant had action taken against the license by the New York and the Utah Medical Licensing Boards.” It has since been confirmed that the Utah Division of Occupational & Professional Licensing did not take any action against Petitioner’s medical license in Utah. The New York Department of Health, Monitoring Unit, Office of Professional Medical Conduct, did take action against Petitioner’s medical license in New York. The New York Department of Health described its action as follows: Dr. Jacoby currently holds a valid NYS medical license, and is permitted to practice in this State, however the sanctions imposed by the enclosed Order are still in effect, and have not yet been fully satisfied. The suspension was lifted in January 2003, however the three years probation remains ‘tolled’ at this time, to be imposed when Dr. Jacoby returns to the practice of medicine in this State. (Emphasis added.) The underlying reason for Petitioner’s discipline in New York is for failing to repay a student loan guaranteed by the federal government. Petitioner had secured a health education assistance loan guaranteed by the federal government for approximately $51,000.00 between 1982 and 1983. The loan came due nine months after Petitioner graduated from medical school in June or July of 1984. Petitioner did not make any payments toward the loan for approximately 18 years. In September of 2002, Petitioner finally settled his long past-due student loan debt. Petitioner requested to withdraw his Application for Temporary Certificate to Practice in an Area of Critical Need after the Credentials Committee voted to recommend denial of his application to the full Board of Medicine. Petitioner promptly made a similar written request addressed to the full Board of Medicine. The full Board of Medicine denied Petitioner’s request to withdraw his application. The Board of Medicine then considered the merits of Petitioner’s application and voted to deny the application. The Board’s action was memorialized in a Notice of Intent to Deny Licensure by Area of Critical Need, which reads as follows in pertinent part: This matter came before the Credentials Committee of the Florida Board of Medicine at a duly-noticed public meeting on September 13, 2003, in Tampa, Florida and the full Board on October 3-4, 2003, in Ft. Lauderdale, Florida. The applicant appeared before the Credentials Committee on September 13, 2003, and presented testimony regarding the application file. The application file shows: The applicant had action taken against the license by the New York and the Utah Medical Licensing Boards. Additionally, the Board considered applicant’s Motion to Withdraw his application during the full Board meeting and voted to deny applicant’s motion. The applicant is guilty of violating Section 458.331(1)(b), Florida Statutes, for having a license acted upon by another jurisdiction. Based on the foregoing, the Board may refuse to certify an applicant for licensure, or restrict the practice of the licensee, or impose a penalty, pursuant to Sections 458.331(2) and 456.072(2), Florida Statutes. It is therefore ORDERED that the application for licensure by area of critical need be DENIED. If a final order is issued denying Petitioner’s license, the denial will be reported to the Federation of State Medical Boards, which is a depository of all disciplinary actions and license application denials by state boards in the United States. In recent years, it has been the consistent practice of the Florida Board of Medicine to deny applications for licenses to practice medicine if the applicant’s medical license is on probation in another state. Such practice is not required by either rule or statute. The Board of Medicine does not make any effort to advise applicants or prospective applicants of its consistent practice of denying applications from physicians who are on probation elsewhere. At the time he filed the subject application, as well as at the time of his appearance before the Credentials Committee, Petitioner was not aware of the Board of Medicine’s history of not granting applications submitted by physicians on probation elsewhere. Had Petitioner been aware of the Board’s history in that regard, he would not have filed an application.3 Findings based on testimony in Case No. 03-4433 All applications for licensure submitted by physicians licensed in other states are reviewed on their merits by the Florida Board of Medicine. Notwithstanding the Board's long history of denying such applications when the applicant's license in another state is on probation, it is nevertheless possible that the Board might in the future grant an application by a physician whose license is on probation. Because such a possibility exists, the Board does not advise prospective applicants that their applications will be denied if their license in another state is on probation. Facts about the existing rules The existing rule provisions challenged in Case No. 04-4571RX are all portions of Florida Administrative Code Rule 64B8-8.001. That rule contains the disciplinary guidelines regarding physicians regulated under Chapter 458, Florida Statutes. (Unless otherwise noted, all references to the Florida Statutes are to the current version of those statutes.) Subsection (1) and the introductory portion of subsection (2) of that rule read as follows: 64B8-8.001 Disciplinary Guidelines. Purpose. Pursuant to Section 456.079, F.S., the Board provides within this rule disciplinary guidelines which shall be imposed upon applicants or licensees whom it regulates under Chapter 458, F.S. The purpose of this rule is to notify applicants and licensees of the ranges of penalties which will routinely be imposed unless the Board finds it necessary to deviate from the guidelines for the stated reasons given within this rule. The ranges of penalties provided below are based upon a single count violation of each provision listed; multiple counts of the violated provisions or a combination of the violations may result in a higher penalty than that for a single, isolated violation. Each range includes the lowest and highest penalty and all penalties falling between. The purposes of the imposition of discipline are to punish the applicants or licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations. Violations and Range of Penalties. In imposing discipline upon applicants and licensees, in proceedings pursuant to Sections 120.57(1) and (2), F.S., the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included. Following the language quoted immediately above, the subject rule describes all of the statutory violations for which discipline may be imposed and for each such violation describes minimum and maximum recommended penalties. With regard to the violation described as "(b) Action taken against license by another jurisdiction," the subject rule provides the following recommendation for a first offense: (b) From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken, and an administrative fine ranging from $1,000.00 to $5,000.00. And for a second offense of the same type, the recommended penalty is stated as follows: (b) From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to revocation or denial of the license, and an administrative fine ranging from $5,000.00 to $10,000.00. Facts about disposition of Petitioner's application In the conclusions of law in the Recommended Order in Case No. 03-4433, the undersigned concluded that . . . on the facts in this case, the Board of Medicine clearly has the authority and the discretion to deny the application for the specific reasons stated in the Board's notice of intent to deny, to-wit: "The applicant is guilty of violating Section 458.331(1)(b), Florida Statutes, for having a license acted upon by another jurisdiction." But it is equally clear that there is nothing in the applicable rules or statutes that mandates denial of the application. The Board of Medicine can lawfully resolve this matter either way. The ultimate recommendation in that Recommended Order was that "a Final Order be issued . . . granting Petitioner's application for a temporary certificate to practice medicine in communities in Florida where there is a critical need for physicians." On June 18, 2004, the Board of Medicine filed a Final Order in Case No. 03-4433 in which it disagreed with the recommendation described above and, based on Petitioner's violation of Section 458.331(1)(b), Florida Statutes, and on "several aggravating factors and policy considerations" described in the Final Order, denied the application for a temporary certificate to practice in an area of critical need. Petitioner sought appellate court review of the Final Order of June 18, 2004. On April 14, 2005, the appellate court issued a decision in which the Board's Final Order of June 18, 2004, was affirmed without opinion. See A. Alexander Jacoby, M.D. v. Florida Board of Medicine, 900 So. 2d 559 (Fla. 1st DCA 2005).
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by Rules 9.110 and 9.190, Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Department of Business and professional Regulation, Attn: Ronda L. Bryan, Agency Clerk, 1940 North Monroe Street, Suite 92, Tallahassee, Florida 32399-2202 and a second copy, accompanied by the filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Florida Appellate District where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed.
