The Issue Whether the Petitioners have standing to institute a rule challenge proceeding under Section 120.56, Florida Statutes. Whether a school board may delegate the authority to suspend an employee without pay to the superintendent in specific instances for a limited period of time.
Findings Of Fact The Petitioner, COLLIER COUNTY EDUCATION ASSOCIATION, (hereinafter CCEA) is the instructional bargaining unit for teachers in the Collier County School District. The Petitioner, COLLIER SUPPORT PERSONNEL-NATIONAL EDUCATION ASSOCIATION, (hereinafter CSP-NEA) is the certified bargaining agent for the non-instructional employees of the Collier County School District. The above mentioned Petitioners are affiliates of the Petitioner, FLORIDA TEACHING PROFESSION NATIONAL EDUCATION ASSOCIATION (hereinafter FTPNEA). As a result of collective bargaining agreements which allow the Petitioners CCEA and CSP-NEA to represent specific categories of employees of the school district, sixty five to seventy per cent of these employees are represented by these associations.. The Respondent SCHOOL BOARD OF COLLIER COUNTY, (hereinafter SCHOOL BOARD) has a rule that delegates the authority to suspend employees wholly or partially without pay to the superintendent. Under Rule No. R-18/81, such a suspension cannot exceed a period of three days, and the superintendent's authority is limited to five situations which have been specifically set forth in the body of the rule. A suspension is authorized only if the superintendent finds that the employee has: a) been absent without leave, b) been insubordinate, c) endangered the health or well-being of a fellow employee or of a student or students, d) willfully neglected duty, e) been intoxicated, consumed an alcoholic beverage, or used a controlled substance (unless prescribed by a physician,) while working. The rule cites Sections 230.23 and 230.33, Florida Statutes, as the authority for the implementation of this delegation process. The rule was adopted can December 17, 1981. Rule No. R-18/81 requires that any employee suspended by the superintendent under this rule be given all due process rights under the Florida Statutes, including those authorized by the Administrative Procedures Act. Pursuant to Rule No. R-18/81, the superintendent has suspended at least two employees in 1988. One of these employees is Mr. Robert Koy, who is represented by the Petitioner, CSP-NEA, in a proceeding currently before the Division of Administrative Hearings in which the employee's substantial interests are being determined. The process and procedures utilized by the Respondent SCHOOL BOARD in its suspension of employees without pay falls within the general scope of interests and activities of all of the Petitioners in this case. A substantial number of the members of the Petitioners CCEA and CSP- NEA are substantially affected by the challenged rule as it involves the disciplinary procedures used by the Respondent SCHOOL BOARD to manage its employees. Such procedures are included in the agreement between the Collier County Public Schools and the Petitioner CSP-NEA, which is in effect from October 1, 1987 through June 30, 1990. This agreement has been admitted into evidence in this proceeding. The relief sought by all of the Petitioners in this proceeding is that Rule No. R-18/81 be declared invalid. This relief is an appropriate remedy for each of the Petitioners to seek on behalf of its members in a rule challenge proceeding.
The Issue Whether petitioners have standing to challenge the validity of respondent's proposed rules, 38F-5.30 through 38F-5.70, Florida Administrative Code I.
Findings Of Fact At all times pertinent to the allegations contained in Ms. Cheren's April 15, 1988 letter of denial of renewal, Petitioner, Earlen Braddy operated Earlen's ACLF home at 2840 47th Avenue South, St. Petersburg, Florida. Respondent, DHRS, is the state agency responsible for licensing ACLF's in Florida. Ms. Braddy has operated the ACLF in question at the current location for about four years during which time she has had as many as five residents at one time. Currently, and for the past year, she has had only three residents in the facility which she also occupies as her home. One current resident has been with her since she opened. On December 4 and 9, 1986, while Ms. Braddy was operating her ACLF in a licensed status, her facility was inspected by representatives of Respondent's Office of Licensure and Certification on its yearly survey. During the survey, the inspectors found several deficiencies, all of a Class III, (least serious) category, in such areas as Administration; Management and Staffing Standards, (6 deficiencies); Admission Criteria and Resident Standards, (3 deficiencies); Food Service, (12 deficiencies); Physical Plant, (5 deficiencies); Fire Safety, (1 deficiency); and Other Administrative Rule Requirements, (4 deficiencies). Though most deficiencies related to the failure to keep or provide the surveyors with the paperwork required to be kept by statute and the rules of the Department, some of the deficiencies related to resident care. These deficiencies were identified to Ms. Braddy in person by the inspectors at the time of discovery and again at the out-briefing. She was also advised as to how to correct them and where to secure assistance in doing so, if necessary. Nevertheless, and notwithstanding the uncorrected deficiencies identified in the December, 1986 survey and the March, 1987 follow-up, the Petitioner's license was renewed in April, 1987. Follow-up surveys were conducted in March, June, and October, 1987, at the next annual survey in 1988, and at its follow-ups. While some deficiencies originally identified were thereafter corrected, many were not. Another annual survey of the facility was conducted on February 16, 1988, prior to the issuance by the Department of the yearly renewal license. At this survey, again, numerous Class III deficiencies were identified including: Administrative, (5 deficiencies); Admission, (3 deficiencies); Food Service, (9 deficiencies); Physical Plant, (1 deficiency); Fire Safety, (3 deficiencies); and Other Administrative, (3 deficiencies). Many of these were carried over uncorrected from the previous year's survey, (December, 1986) and its follow- ups, and some were new. Some of the former remained uncorrected through the June, 1988 follow-up to the February, 1988 survey. In August, 1988, the Department filed three Administrative Complaints against the Petitioner seeking to impose monetary civil penalties against her. All three resulted in Final Orders being entered. In the last of the three, Petitioner was alleged to have committed five violations of the statutes and Departmental rules, all of which relate to Petitioner's alleged failure to "provide or make available for review documentation" in five certain areas. Petitioner and Respondent agree that these areas are those primarily involved in the uncorrected deficiencies outlined in the survey reports and upon which the Department relies to support denial of Petitioner's renewal. Petitioner readily agrees that the deficiencies cited by the Department both in the survey reports and in the Administrative Complaints existed at the time of identification and, in many cases, for some time thereafter. While Petitioner now claims all deficiencies have been corrected, her accountant, Mr. Schaub, indicates that at least one, that relating to the failure to document and keep on file scheduled leisure time, had not been accomplished previously and was not now being accomplished. As to the others, those requirements which were not being complied with at the time of the surveys are now being met. Some identified deficiencies were not actually defects. The documentation was being kept, but due to Petitioner's inability to keep up with it, was not made available to the surveyors. Mr. Schaub is convinced that Petitioner has a paperwork problem and needs help with it. She spends her time taking care of the residents without much help and does not keep up with the required paperwork. As he describes it, she is being "choked with red tape" due to the paperwork requirements imposed by the Department whose rules do not differentiate much in the requirements for record keeping between large facilities and very small ones as this is. In his opinion, however, and also in the opinion of the surveyors who visited the facility, the residents appeared to be clean, appropriately dressed, well fed, and content. Ms. Braddy contends that at the present, all the actions the rules require are being taken and while in the past she may not have done everything correctly, she has made the effort to comply with the instructions she received from the Department. She has recently hired an individual to help her and stay with the residents while she is gone. Before he came to work, she received some assistance from her children who, without pay, helped her from time to time. She believes her facility is now operating within the Department's requirements and there has been no survey conducted since June, 1988, to indicate whether this true or not.
Recommendation Based on the foregoing Finding of Facts and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Earlen Braddy, be issued a conditional license to operate an Adult Congregate Living Facility for a period of 6 months at which time, if all deficiencies are not corrected, the application for renewal be denied. RECOMMENDED this 12th day of December, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3025 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. BY THE PETITIONER None submitted. BY THE RESPONDENT 1. - 7. Accepted and incorporated herein Accepted and incorporated herein though the problem appears to be more a question of inability rather than unwillingness. Rejected as contra to the state of the evidence. Mr. Schaub indicated she would continue to have paperwork problems but with help could master the problem Not a Finding of Fact but a comment of the state of the evidence. COPIES FURNISHED: Gardner Beckett, Esquire 123 8th Street North St. Petersburg, Florida 33701 Edward Haman, Esquire Office of Licensure and Certification Legal Counsel Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether rule 6A-4.0021(6)(c)1. is invalid because Respondent exceeded its grant of rulemaking authority, as alleged by Petitioner.
Findings Of Fact Section II of the Revised Consolidated Petition is the portion of the pleading directed to the Rule Challenge. The entire Rule Challenge section is set forth verbatim here: The Department's Adoption of a Rule Broadly Limiting Time to Complete an Exam Exceeds its Grant of Legislative Authority Section 120.52(8)(b) provides that a rule is an invalid exercise of delegated legislative authority if "the agency has exceeded its grant of rulemaking authority." An agency may only adopt rules that implement or interpret the specific powers and duties granted by the enabling statute. Rules are required to identify the specific authority for adopting a rule, and the specific law being implemented. Rule 6A-4.0021, FAC identifies §§1012.55(1) and 1012.56, Fla. Stat. as its rulemaking authority and as the law being implemented. Both statutes relate to the issuance of teacher certifications, not to the criteria for admission to upper-level teaching programs leading to a bachelor's degree. To the extent that the rule applies to students taking the general knowledge portion of the FCTE to obtain admission to a bachelor's degree program, the rule would be implementing §1007.265, Fla. Stat., regarding alternative standards for admission to upper-division classes for students with disabilities. In order to meet the criteria established in that section, the rule would need to allow alternative admission requirements if the failure to meet the initial requirement is related to a disability and the revised requirement would not constitute a fundamental alteration in the nature of the program. §1007.265, Fla. Stat. The Department of Education, by adopting a rule that limits all test takers, regardless of the extent or type of their disability, to double the normal amount of time to complete an exam, has exceeded the authority granted by the legislature. The DOE has not and cannot show that allowing an applicant with a severe vision deficit additional time (beyond double the normal amount of time) would fundamentally alter the admissions criteria for upper-level education classes. By setting such a limited rule, a rule that allows no consideration of an applicant's type or degree of disability, the DOE has established an arbitrary rule that contravenes the very law it is attempting to implement - the law requiring alternative standards for disabled students. As noted in the Preliminary Statement, the initial Rule Challenge Petition filed with DOAH alleged only that the challenged rule, either facially or as interpreted and applied by Respondent, was inconsistent with the ADA. Petitioner was, thereafter, afforded an opportunity to amend the Petition in response to the Show Cause Order suggesting that the initial Petition did not meet the pleading requirements for a section 120.56 rule challenge. In response, Petitioner filed the Revised Consolidated Petition that removed the contention that the rule was being challenged based on its inconsistency with the ADA and added the Rule Challenge allegations that are set out verbatim in Finding of Fact 1 above. As Finding of Fact 1 demonstrates, the new premise of Petitioner's Rule Challenge in the Revised Consolidated Petition is that rule 6A-4.0021(6)(c)1. is invalid because it exceeds the grant of legislative rulemaking authority in section 1007.265, Florida Statutes, a statute that was neither cited as authority for the challenged rule nor cited as the law implemented by the challenged rule.
