Findings Of Fact The Respondent, Florida Parole and Probation Commission, adopted revised rules of practice and procedure which became effective on September 10, 1981. Among these is Rule 23-21.09, Florida Administrative Code, which establishes "matrix time ranges" that are used in determining presumptive parole release dates for persons who are serving prison terms. In determining presumptive parole release dates, the Respondent's rules require that a "salient factor score" be determined based upon such factors as the number of prior criminal convictions, the number of prior incarcerations, total time served in prisons, the inmate's age at the time of the offense which led to the first incarceration, the number of probation or parole revocations, the number of prior escape convictions, and whether burglary or breaking and entering is the present offense of conviction. The degree or severity of the present offense of conviction is then determined. The Respondent's Rule 23-21.09 sets guidelines for time ranges for presumptive parole release dates depending upon the severity of the present offense of conviction and the salient factor score. The more severe the present offense of conviction, the longer will be the period before the presumptive parole release date. Similarly, given the severity of the offense, the higher the salient factor score the longer will be the period before the presumptive parole release date. The rule replaced a rule which set different matrix time ranges. The new rule generally sets longer time ranges, but this is not uniformly true. The Petitioner, Seimore Keith, is an inmate presently incarcerated at Polk Correctional Institution, Polk City, Florida. Polk Correctional Institution is a facility maintained by the Florida Department of Corrections. Petitioner Keith was convicted of grand theft in July, 1980, and was sentenced to serve five years in prison. The conviction was the result of a guilty plea which was entered in accordance with a plea bargain. During plea negotiations, Petitioner Keith was advised that his presumptive parole release date under Florida Parole and Probation Commission rules would require that he serve no more than 25 months in prison. At the time that Petitioner Keith's presumptive parole release date was set by the Respondent, the new Rule 23-21.09 had come into effect, and the Petitioner's presumptive parole release date was set to require that he serve 32 months in prison. The Petitioner, Ronnie McKane, is presently incarcerated at Polk Correctional Institution. He was convicted of the offense of armed robbery in February, 1981. Under rules in effect when he was sentenced, which was prior to the adoption of Rule 23-21.09, Petitioner McKane's presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rule was applied by Respondent in setting McKane's presumptive parole release date. The Petitioner, Daniel P. Hull, is presently incarcerated at Polk Correctional Institution. He was convicted in September, 1971, of the offense of robbery and sentenced to serve ten years in prison. He was paroled in 1974, but was reincarcerated as a result of a parole violation in 1976. In 1977 he escaped, and was recaptured in January, 1981. On June 1, 1961, Petitioner Hull was convicted of the offense of escape and sentenced to serve nine months. Under the rules in effect when he was sentenced, which was prior to the adoption of Rule 23-21.09, Hull's presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rules were applied by Respondent in setting Hull's presumptive parole release date, and it has been set subsequent to the expiration of his sentence. Hull will therefore be released when his sentence expires in March, 1982. The Petitioner, Douglas L. Adams, was convicted of the offenses of possession of marijuana and uttering a forged instrument, and sentenced in February, 1981, to two consecutive five-year sentences. Under the rules in effect when Adams was sentenced, which was prior to the adoption of Rule 23- 21.09, Adams' presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rule was applied by the Respondent in setting Adams' presumptive parole release date. During 1980, the Respondent directed its staff to begin considering proposed changes to its rules of practice and procedure. Various proposals were considered, and by September, 1980, a proposed rule package had been developed. The Respondent directed its staff to submit the proposed rule package to the Governor and members of the Cabinet, various pertinent legislators, county and circuit judges, prosecutors and public defenders, superintendents of each prison in the State, and to members of the Supreme Court and the district courts. The Commission opted to conduct various workshops throughout the State, and to invite all interested persons to share their input. Notices of the workshops were published in the Florida Administrative Weekly. The workshops were conducted, and the Commission commenced formal rule-making proceedings. Notice of rulemaking was published in the Florida Administrative Weekly, and hearings were scheduled. Notice of the formal rulemaking proceedings was also published in the St. Petersburg Times, the Pensacola Journal, the Tallahassee Democrat, the Orlando Sentinel-Star, and the Florida Times-Union. Persons who had requested specific notification were provided it. In response to this notice, the Respondent received considerable written input, and oral presentations were made at hearings that were conducted. The final hearing in the rule-making proceeding was conducted on June 19, 1981, and the rules, including Rule 23- 21.09, were thereafter adopted effective September 10, 1981. Notice of the proposed rule changes and of the formal rulemaking proceeding was not specifically disseminated to inmates at Florida's prisons. The proposed rules were for- warded to the superintendent of each facility. At some of the institutions the proposed rules were apparently posted. All persons who requested copies of the proposed rules from the Florida Parole and Probation Commission were provided them. Numerous prisoners and organizations that represent prisoners made input during the various states of the rulemaking proceeding. None of the Petitioners in this matter were specifically noticed of the rulemaking proceeding. One of the Petitioners had heard that rules were being proposed, and requested copies of them from members of the Legislature or from Department of Corrections personnel. None of the Petitioners requested copies of the proposed rules from the Respondent or anyone connected with the Respondent.
Findings Of Fact Petitioner is a contractor engaged in highway construction and holds a certificate of qualification with Respondent. Action pending in DOAH Case No. 84-2538 could result in the suspension of Petitioner's certificate if an alleged contract delinquency is proven. Section 337.16, F.S., delegates to Respondent the authority to revoke or suspend a certificate when contract delinquency is demonstrated. This statute provides: No contractor shall be qualified to bid when an investigation by the highway engineer discloses that such contractor is delinquent on a previously awarded contract, and in such case his certificate of qualification shall be suspended or revoked. The department may suspend, for a specified period of time, or revoke for good cause any certificate of qualification. The purpose of the above statute is to enforce timely completion of construction work and to prevent a contractor from taking on new work which might require diversion of resources from the delinquent job, thus lessening the contractor's ability to catch up. Rule 14-23.01, F.A.C. was promulgated by Respondent to implement its authority to suspend or revoke contractor certificates for job delinquency. Because contractors charged with delinquency frequently catch-up or cure the delinquency during the pendency of administrative proceedings, 1/ Respondent's statutory authority to enforce construction schedules was easily thwarted. To "put teeth" in its ability to deter job delays, Respondent amended its delinquency rule in 1982 to provide after- the-fact certificate suspension where a contractor was proven to have been delinquent in its progress on a construction project. This provision, which is challenged here, states as follows: (b) REINSTATEMENT. Any contractor disqualified under the above provisions shall be disqualified from further bidding and shall be disapproved as a contractor until the delinquency is cured. Where a contractor cures the alleged delinquency during the course of administrative proceedings, the Department may suspend the qualification to bid and disapprove as a subcontractor for the number of days the contractor is administratively determined to be delinquent. Specifically, Petitioner challenges the last sentence which it contends amounts to unauthorized punishment since the deficiency sought to be corrected by the statute no longer exists. However, the provision would arguably have some deterrent force since contractors would recognize that suspension could not be avoided merely by requesting formal proceedings 2/ and counting on administrative delay to render the delinquency issue moot.
Findings Of Fact The Petitioner, Darryl James McGlamry, is an inmate under the supervision of the Respondent. The Petitioner is incarcerated at Dade Correctional Institution. The Respondent is the Department of Corrections, an agency of the State of Florida. The Petitioner has challenged Rule 33-5.006(8), Florida Administrative Code. The Challenged Rule governs the visitation privileges of unmarried inmates. The Petitioner has alleged that the Challenged Rule "impairs the Petitioner's substantial interest in that it restricts the Petitioner's First Amendment Right of Freedom of Association, as it substantially limits the number of female visitors that the Petitioner may have." The Petitioner has also alleged that the Challenged Rule is invalid because the restriction on visitation of the Challenged Rule is: . . . contrary to the Civil Rights Act of Florida, Chapter 760.01, Florida Statutes. 11. As such, it is an "invalid exercise of delegated legislative authority". The Respondent does not have the authority to pass rules that are contrary to other statutes. This amounts to vesting unbridled discretion to the agency in violation of Section 120.52(8)(d), Florida Statutes. The Amended Petition is devoid of any alleged facts which, if proven, would support a determination that the Challenged Rule is invalid under Section 120.56, Florida Statutes.
The Issue The issue to be determined is whether Respondent violated section 458.331(1)(b) and (kk), Florida Statutes (2010), and if so, what penalty should be imposed for the violations proven.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of medical doctors pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to the Amended Administrative Complaint, Respondent has been licensed as a medical doctor in the State of Florida, having been issued license number ME94098. During all times relevant to the Amended Administrative Complaint, Respondent also held a license to practice medicine in the State of California. On September 7, 2010, Linda Whitney, the Executive Director of the California Board of Medicine, filed an Ex Parte Petition for Interim Suspension Order (Ex Parte Petition) in Case No. 06-2007-187158, seeking to suspend, pending a full hearing on the merits, Respondent’s physician’s and surgeon’s certificate in the State of California. On September 9, 2010, Administrative Law Judge Samuel Reyes of the California Office of Administrative Hearings entered an Ex Parte Interim Suspension Order, stating that the Ex Parte Petition had come up for hearing, with both the Executive Director (through counsel) and Dr. Fenton appearing and submitting documents and presenting argument. Judge Reyes granted the Ex Parte Petition; suspended Respondent’s California Physician’s and Surgeon’s certificate; scheduled a hearing on September 30, 2010; and set a deadline for submitting additional affidavits and other documents. After the hearing on September 30, 2010, Judge Reyes entered an Interim Suspension Order, containing findings of fact and conclusions of law. The Interim Suspension Order indicates that it was entered pursuant to California Government Code section 11529, which, as stated in the Interim Suspension Order, authorizes licensure suspension and the imposition of other conditions pending a resolution of underlying disciplinary allegations. Subdivision (a) of the statute provides that: “[i]nterim orders may be issued only if the affidavits in support of the petition show that the licensee has engaged in, or is about to engage in, acts or omissions constituting a violation of the Medical Practice Act . . . and that permitting the licensee to continue to engage in the profession for which the license was issued will endanger the public health, safety, or welfare.” Subdivision provides: “[t]he administrative law judge shall grant the interim order where, in the exercise of discretion, the administrative law judge concludes that There is a reasonable probability that the petitioner will prevail in the underlying action. (2) The likelihood of injury to the public in not issuing the order outweighs the likelihood of injury to the licensee in issuing the order.” The Interim Suspension Order granted the Petition and suspended Respondent’s license in accordance with Government Code section 11529. On May 8, 2012, the Medical Board of California adopted a Stipulated Settlement and Disciplinary Order as the Decision and Order of the Medical Board of California (Board Order), effective June 7, 2012. The Stipulated Settlement and Disciplinary Order, which was signed by Dr. Fenton, states in pertinent part: Respondent does not contest that, at an administrative hearing, complainant could establish a prima facie case with respect to the charges and allegations contained in SAA No. 06-2007-187158, and that he has thereby subjected his license to the disciplinary action. Respondent admits the truth of paragraph 31C. in SAA No. 06-2007-187158. SSA No. 06-2007-187158 refers to the Second Amended Accusation, which is the charging document in the underlying California case, akin to an administrative complaint in Florida. The SAA alleges that Respondent is subject to discipline based upon impairment because of physical or mental illness affecting competency in violation of the California Business Code, section 822; conviction of a crime substantially related to the qualifications, functions, and duties of the medical profession in violation of section 2236; and general unprofessional conduct, in violation of section 2234. The Board Order revoked Respondent’s Physician’s and Surgeon’s Certificate. The revocation was stayed, however, and Respondent was placed on probation for a period of seven years, subject to terms and conditions outlined in the Board Order. Those terms and conditions included abstinence from the use of any controlled substances and any drugs requiring a prescription other than those lawfully prescribed by another practitioner; abstinence from alcohol use; biological fluid testing; completion of a professionalism program; submission to a psychiatric evaluation; psychotherapy by a California-licensed, board-certified psychiatrist or licensed psychologist; monitoring of Respondent’s practice while on probation; and a prohibition against supervising physician assistants during the course of probation. Respondent did not report the Interim Suspension Order dated September 9, 2010, to the Florida Board of Medicine within 30 days of the Interim Suspension Order. Respondent also did not update his practitioner profile to include the discipline in the State of California. The Board received notice from the State Federation of Medical Boards that another state had taken action, i.e., that the Interim Suspension Order had been issued by the State of California. There is no allegation, nor was any evidence presented, that Respondent has violated the terms of the Board Order entered in California. No evidence was presented indicating that Respondent has ever been disciplined previously, in Florida or in California. At the time of the hearing, Respondent was not practicing medicine. He testified at hearing that he has enrolled voluntarily in the Florida Physicians’ Resource Network (PRN). However, no contract with PRN was entered into evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order finding that Respondent violated subsections 458.331(1)(b) and (kk), Florida Statutes, as charged in the Amended Administrative Complaint. It is further recommended that Respondent’s license in Florida be suspended until such time as Respondent demonstrates the ability to practice medicine with reasonable skill and safety, followed by probation with such terms as the Board deems appropriate. Respondent’s demonstration of the ability to practice with reasonable skill and safety shall include an evaluation by a board-certified psychiatrist approved by PRN and compliance with any recommendations PRN may make as a result of that evaluation. DONE AND ENTERED this 29th day of July, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2013.
Findings Of Fact The initial Petition for Administrative Hearing was filed on November 18, 1991. The Petition was filed by Ervin James Horton. 3. In the Petition Rules "33-3.002, 33-19.006, 33-19 et. seq., 33-19.012, 33-23 et. seq." were challenged. Most of the Challenged Rules are lengthy and deal with a number of subjects. The common thread of the Challenged Rules concern medical care of inmates. The Petition is, to say the least, confusing. This confusion is caused by the Petitioner's frequent use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 17, State of the Case and Facts, provides the following: 17. That the (Petitioner) has learned that the (Respondent) act [sic] pursuant to an invalid delegation as 33-3.002 33-19 et. seq., 233-23 et. seq. that fail to establish adequate standards for agency decision making, and vests unbridled discretion in the agency or employees that's inconsistant [sic] to the statutory requirements of 120.54 and 944.09. This paragraph is fairly typical of most of the Petition. Although it contains some "legalese", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of employees of the Respondent in allegedly releasing confidential medical information to "security staff and psychologist or and other staff or employees with criminal intent" and other medical practices of the employees of the Respondent. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rules. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rules are unconstitutional. Again, most of the Petitioner's arguments apparently concern violation of constitutional rights by the acts of employees of the Respondent as opposed to the violations of constitutional rights in the Challenged Rules. Insufficient alleged facts concerning why it is believed that the Challenged Rules are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. On December 10, 1991, an Order Granting Motion to Dismiss with Leave to Amend was entered. The Petitioner was informed that his Petition was being dismissed and the Petitioner was given an opportunity to file an amended petition. No amended petition has been filed by the Petitioner. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.
Findings Of Fact Standing. The Petitioner, David Ansgar Nyberg, 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 Petitioner has challenged Rule 33-12.001(2), Florida Administrative Code. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Rule 33-12.001(2), Florida Administrative Code. Rule 33-12.001, Florida Administrative Code, provides in pertinent part: Prior notice of adoption, amendment or repeal of a rule shall be made available to persons or parties directly affected by the rule as required in 120, F.S. Notice to those directly affected by a proposed rule shall be by: . . . . (b) Publication in the Florida Administrative Weekly at least 14 days prior to any proposed hearing. . . . . (d) Posting by memorandum notice of the intended action on the inmate and personnel bulletin boards of all major institutions, road prisons, community correctional centers, community vocational centers and offices throughout the state directing that complete proposed rules are available in each institutional library or office. A copy of the notice shall be circulated among the inmates in all disciplinary, administrative or close management confinement areas of all facilities.
The Issue Whether the agency's definition of the term "dry and measurable" as used in HRS bid documents is an unpromulgated rule which cannot be used as a basis for the agency's decision to reject the Petitioner's response to a bid proposal in Lease Number 590:1975. Whether the agency's requirement that a building be "dry and measurable" before a bid is accepted is an invalid exercise of delegated legislative authority.
Findings Of Fact In 1988, the Respondent HRS made the determination that it would not exercise its option on leased space owned by the Petitioner, Mr. Dyess, in Clewiston, Florida. Bid documents were prepared by the agency for its current office space needs. Bid proposals were solicited through newspaper advertisements and personal contact with owners, developers, and realtors within the Clewiston area. HRS included Mr. Dyess in its solicitations. He was sent a bid package which contained all of the bid documents for the bid referred to as Lease Number 590:1975. Page five of the document in the bid package known as HRS Facilities Services Form RO3-87, requires prospective bidders in Lease Number 590:1975 to contact Michael J. Sedgwick if they have any questions about the interpretation of the bid specifications. The document is silent on the questions of whether the written or oral representations made by Mr. Sedgwick are binding upon the agency, or whether the prospective bidder may contest the interpretation. A bidders' conference was held on April 26, 1988. During the conference, Mr. Sedgwick was questioned about the agency's interpretation of the term "dry and capable of being physically measured." Mr. Sedgwick contacted Mr. George Smith, who administers the leasing program for HRS in Tallahassee, and obtained the following definition: "Dry and measurable consists of four things: a slab, four corners, a roof, and a valid building permit if construction is in progress. The definition given by Mr. Smith was verbally communicated to the prospective bidders who attended the conference. This definition was verbally communicated to the Petitioner by Mr. Sedgwick on April 27, 1988. This clarification or interpretation of the bid specification was not reduced to writing and sent to all prospective bidders, as required by HRS Facilities Form RO3-87. The Petitioner timely submitted a bid in Lease Number 590:1975. This bid was rejected by HRS because the building was not "dry and measurable", as defined by the agency, on the date of the bid opening. The definition of the term "dry and measurable," as set forth above, has been developed by HRS for use within the agency. It is an unwritten policy which is universally applied by the agency in all of its reviews of bid proposals submitted by bidders for building leases. This unwritten policy has been in effect for seven and one half years. A definition of the term "dry and measurable" is not set forth in the bid documents. A prospective bidder is encouraged by the bid documents to seek interpretations of definitions within the documents from the project contact person. In this case, the contact person was Mr. Sedgwick. No other basis was given to Mr. Dyess for the agency's rejection of his bid in Lease Number 590:1975.
Findings Of Fact The initial Petitions for Administrative Hearing were filed on October 4, 1991. The Petitions were filed by Ervin James Horton. In the Petition filed in case number 91-6345R, Rules 33-3.005, 33- 3.0051, 33-3.0083(5)(i), Florida Administrative Code, I.O.P. P13.91.34, I.O.P. P14.91.25 and Post Order 46 were challenged. In the Petition filed in case number 91-6346R, Rules 33-22.001, 33- 22.002, 33-22.003, 33-22.008, 33-22.012, and 33-3.005, Florida Administrative Code, were challenged. The rules challenged by the Petitioner are titled "Legal Documents and Legal and Privileged Mail" (Rule 33-3.005), and "Copying Services for Inmates" (Rule 33-3.0051). Chapter 33-22, Florida Administrative Code, provides rules governing "Inmate Discipline." Rule 33-3.0083(5)(i), Florida Administrative Code, does not exist. The I.O.P's apparently deal with the same general subjects as the Challenged Rules. The Petitions include the use of legal terms and phrases with little in the way of factual explanation. Although the Petitions contain some "legalize", they do not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of several employees of the Respondent relating to a variety of alleged incidents involving the Petitioner. In case number 91-6345R, the Petitioner complained of alleged incidents involving denial of his copying and mail privileges. The Petitioner argued that his access to the courts and his ability to carry out contracts have been impaired by the actions of employees of the Respondent in enforcing the Challenged Rules. In case number 91-6346R, the Petitioner complained of several alleged incidents involving disciplinary actions taken against him pursuant to Chapter 33-22, Florida Administrative Code. The Petitioner argued that the application of Chapter 33-22, Florida Administrative Code, was improper. The incidents complained of by the Petitioner have allegedly been the subject of unsuccessful grievance proceedings. Having failed to obtain a favorable response to his grievances, the Petitioner is seeking through this process to have the incidents reviewed. The Petitioner's allegations concerning the alleged incidents are not merely allegations intended to prove the Petitioner's standing to institute this proceeding. The Petitioner is complaining about, and seeking review of, alleged actions of the Respondent. The Petitioner has also attempted to raise constitutional arguments to support his challenges. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rules are unconstitutional. Insufficient alleged facts concerning why it is believed that the specific requirements or provisions of the Challenged Rules are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petitions and the Amended Petition. On November 14, 1991, an Order Granting Motions to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. On November 21, 1991, the Petitioner filed a Motion for Enlargement of Time to Comply to Order to Amend. The Petitioner, however, also filed an Amended Petition in these cases on the same day. The Amended Petition is very similar to the Petitions and suffers from the same deficiencies. The Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petitions which, if proven, would support a determination that the Challenged Rules are invalid under Section 120.56, Florida Statutes. On December 9, 1991, an Order Concerning Motion for Enlargement of Time and Granting Motion to Dismiss Amended Petition was entered. Pursuant to this Order the parties were informed the Amended Petition was dismissed and were given an opportunity to file proposed final orders. On December 11, 1991, the Petitioner filed Petitioner's Motion to File a [sic] Amended Petition or Second Amendmet [sic]. This motion was denied by Order entered December 18, 1991. On December 13, 1991, the Petitioner filed a Motion to Correct Order and, or Alternative Relief. This motion was denied by Order entered December 16, 1991. The Petitioner has challenged Rules 33-3.005, 33-22.001 and 33-22.003, Florida Administrative Code. See Horton v. Department of Corrections, 9 F.A.L.R. 2270 (DOAH Case No. 86-4515R 1987) and Horton v. Department of Corrections, 10 F.A.L.R. 5254 (DOAH Case No. 87-2908R 1988).
The Issue The issue presented for consideration concerns the question whether action taken by the Respondent in its efforts to comply with the mandate of Subsection 120.60(5), Florida Statutes (1978), constitutes a rule or rules which has or have not been duly promulgated in accordance with the provisions of Sections 120.53, 120.54 and 120.56, Florida Statutes.
Findings Of Fact This case is here presented on the Petition of Livingston B. Sheppard, D.D.S., by an action against the Board of Dentistry, an agency of the State of Florida and the Department of Professional Regulation, an agency of the State of Florida, as Respondents. The purpose of this Petition is to have declared invalid certain activities of the Respondents pertaining to their efforts at complying with the provisions of Subsection 120.60(5), Florida Statutes (1978), in promoting license revocation or suspension cases against various dentists licensed to practice in the State of Florida. The Petitioner contends that these activities by the Respondents constitute a rule or rules which fail to comply with requirements of Sections 120.53, 120.54 and 120.56, Florida Statutes. The Petitioner, Livingston B. Sheppard, D.D.S., is a dentist licensed to practice in the State of Florida and thereby regulated by the Respondents. The Petitioner is also the subject of disciplinary action in Case No. 78-1481 before the State of Florida, Division of Administrative Hearings, and it is the action which was taken against Dr. Sheppard in the course of that prosecution, dealing with the subject of Subsection 120.60(5), Florida Statutes (1978), which the current Petitioner asserts to be an invalid rule or rules. The language of Subsection 120.60(5), Florida Statutes (1978), states: (5) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has given reasonable notice by certified mail or actual service to the licensee of facts or conduct which warrant the intended action and the licensee has been given an opportunity to show that he has complied with all lawful requirements for the retention of the license. If the agency is unable to obtain service by certified mail or by actual service, constructive service may be made in the same manner as is provided in chapter 49. Having considered the statement found in the above-referenced Subsection 120.60(5), Florida Statutes (1978), counsel for Dr. Sheppard in D.O.A.H Case No. 78-1481 filed a Motion to Dismiss the Administrative Complaint on August 31, 1979, alleging that the agency had failed to comply with the provisions. Oral argument on that motion was scheduled for 2:30 o'clock p.m. on September 17, 1979, and was heard at that time; however, prior to the oral argument, the Board of Dentistry on September 14, 1979, filed a docent in the case, which document attempted compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). The document was entitled "Notice of Intended Action Conference" and by its terms granted Dr. Sheppard an opportunity to appear before H. Fred Varn, Executive Director, Florida State Board of Dentistry, on September 17, 1979, at 10:00 a.m. in Tallahassee, Florida. (A copy of this "Notice of Intended Action Conference" was attached to the Petition in the case sub judice as an exhibit.) The Board of Dentistry had alerted the Hearing Officer to the action it had contemplated by its "Notice of Intended Action Conference." It did so through the Board prosecutor by correspondence of September 14, 1979, a copy of which may be found as the Petitioner's Exhibit No. 1 admitted into evidence. Dr. Sheppard filed an objection to the adequacy of the "Notice of Intended Action Conference" and refused to appear at that conference. After considering the oral arguments of the parties directed to the Motion to Dismiss of August 31, 1978, in D.O.A.H. Case No. 78-1481, the Honorable Delphene C. Strickland, Hearing Officer with the Division of Administrative Hearings, entered her Order dated September 26, 1979. (A copy of that Order has been attached as an exhibit to the current Petition.) In her Order, the Hearing Officer found the "Notice of Intended Action Conference was insufficient, in that the notice did not grant Sheppard sufficient time to prepare for the conference to be held on September 17, 1979, to the extent of demonstrating his compliance with the provisions of Chapter 466, Florida Statutes, as contemplated by Sub section 120.60(5), Florida Statutes (1978). The Hearing officer did feel that Dr. Sheppard had been notified of those allegations for which he was called upon to defend against and she granted the Board of Dentistry thirty (30) days from the date of her Order, September 26, 1978, to allow the accused an opportunity to show that he had complied with all lawful requirements for the retention of his license. There followed the current Petition which was filed on September 28, 1979. That Petition has been the subject of a Motion to Dismiss which challenged the adequacy of the Petition. The Motion to Dismiss was responded to and in the course of that response the Petitioner's counsel attached a copy of a "Notice of Informal Conference" to be held on October 23, 1979, at 9:00 a.m., in Tallahassee, Florida. (The location of that conference was subsequently changed to a place more convenient for Dr. Sheppard, specifically, St. Petersburg, Florida, but the amendment was otherwise the same as the original October 23, 1979, notice.) When the Motion to Dismiss and response to the motion were considered, the motion was denied by written Order of the undersigned dated October 22, 1979. That Order found in accordance with the Order of Hearing Officer Strickland, in D.O.A.H. Case No. 78-1481, referring to the Order dated September 26, 1979; that the efforts of complying with Subsection 120.60(5), Florida Statutes (1978), made by the Board of Dentistry in its attempted action conference to be held September 17, 1979, were not adequate and the prospective events of an action conference that would have been held on September 17, 1979, were deemed to be moot. Nonetheless, in view of the further action by the Board of Dentistry to conduct an informal conference on October 23, 1979, the present case was allowed to go forward on the basis that the Petitioner would be afforded an opportunity to show how the events leading to the written "Notice of Informal Conference" held on October 23, 1979, the notice itself, and the events at the conference constitute a rule or rules that has or have not been duly promulgated in the manner contemplated by Chapter 120, Florida Statutes. In furtherance of this permission, the Petitioner was and is allowed to make the "Notice of Informal Conference" as attached to the response to the Motion to Dismiss a part of the Petition and that "Notice of Informal Conference" is hereby made a part of the Petition. In the course of the hearing a number of witnesses were presented and those witnesses included Tom Guilday, a prosecutor for the Board of Dentistry; Liz Cloud, an employee of the State of Florida, Office of the Secretary of State; H. Fred Varn, Executive Director of the Board of Dentistry; Nancy Wittenberg, Secretary, Department of Professional Regulation; and the Petitioner, Livingston B. Sheppard. In addition, the Petitioner offered three items of evidence which were admitted. The testimony of attorney Guilday established that as prosecutor for the Board of Dentistry in the action against Dr. Sheppard, he spoke with Charles F. Tunnicliff, Acting General Counsel, Department of Professional Regulation, who instructed Guilday to attempt to comply with the requirements of Subsection 120.60(5), Florida Statutes (1978), and this was in anticipation of the pending Motion to Dismiss to be heard on September 17, 1979. One of the results of that conversation was the letter of September 14, 1979, Petitioner's Exhibit No. 1, addressed to Hearing Officer Strickland and the primary result was that of the September 14, 1979, "Notice of Intended Action Conference." The conference alluded to was to be held at the office of Mr. Varn. Attorney Guilday did not recall whether the contemplated disposition of September 17, 1979, was one which Tunnicliff indicated would be used in all similar cases pending before the Department of Professional Regulation. After Hearing Officer Strickland's Order was entered on September 26, 1979, attorney Deberah Miller of the Department of Professional Regulation instructed Guilday to comply with Hearing Officer Strickland's Order of September 26, 1979, on the subject of the dictates of Subsection 120.60(5), Florida Statutes (1978), and this instruction was supported by Memorandum of October 5, 1979, a copy of which may be found as Petitioner's Exhibit No. 2 admitted into evidence. There ensued the conference of October 23, 1979, which was held in St. Petersburg, Florida. After the conference, pursuant to the instructions of attorneys Miller and Tunnicliff, Guilday prepared a memorandum on the results of that conference. This memorandum did not carry a recommendation as to the disposition of the case. Throughout this period of time, attorney Guilday was unaware of any general policy within the Department of Professional Regulation or Board of Dentistry which dealt with attempts at compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). None of the discussions which Guilday had with attorneys Tunnicliff and Miller of the Department of Professional Regulation or with other officials of that Department or Board of Dentistry led him to believe that there was any set policy for handling those issues. Guilday did acknowledge that a member of his law firm, one Michael Huey, had been instructed by Staff Attorney Miller on the technique to be utilized in refiling a prosecution against John Parry, D.D.S., wherein the action against Dr. Parry had been dismissed for lack of compliance of Subsection 120.60(5), Florida Statutes (1978). A copy of that Memorandum dated October 3, 1979, may be found as Petitioner's Exhibit No. 3 and it carries with it an attached form for "Notice of Informal Conference" under the terms of Subsection 120.60(5), Florida Statutes (1970), and that format is similar to the October 23, 1979, "Notice of Informal Conference" in the Sheppard case. Guilday indicated in connection with this Memorandum, Petitioner's Exhibit No. 3, that to his knowledge no discussion on how to comply with the terms of the memorandum was made and no actual compliance with the memorandum has been taken to his knowledge. It was established through the testimony of Liz Cloud of the Office of the Secretary of State and through other witnesses that no formal rules have been filed with the Secretary of State by either of the Respondents dealing with the subject of compliance with the pie visions of Subsection 120.60(5), Florida Statutes (1978). Testimony offered by Nancy Wittenberg, Secretary, Department of Professional Regulation, and by H. Fred Varn, Executive Director, Board of Dentistry, established that neither the Department nor the Dental Board has formulated final policies on how to deal with the requirements of Subsection 120.60(5), Florida Statutes (1978), whether the cases pertain to those such as that of Dr. Sheppard in which the agency, although it has not complied with Subsection 120.60(5), Florida Statutes (1978), prior to the filing of the Administrative Complaint, has been granted an opportunity to try to comply or on the occasion where cases are in the investigative stage or the occasion where the cases have been dismissed for noncompliance with Subsection 120.60(5), Florida Statutes (1978), and are subject to refiling. It is shown through Secretary Wittenberg's testimony that such compliance with Subsection 120.60(5), Florida Statutes (1978), is still in the formative stages and the Memorandum of October 3, 1979, by Staff Attorney Miller with the format for noticing informal conferences to be held under the provisions of Subsection 120.60(5), Florida Statutes (1978), is but one method under consideration at this time. Moreover, Secretary Wittenberg has not spoken with attorney Guilday about the matters of the Sheppard case that are now in dispute or received reports of conversations between Guilday and Staff Attorneys Tunnicliff and Miller on the subject of the pending Sheppard dispute. Finally, Wittenberg has not instructed any of the support officials within the Department of Professional Regulation, to include departmental attorneys, to formulate policy directed to the implementation of the provisions of Subsection 120.60(5), Florida Statutes (1978), which action would constitute the final statement by the Department on those matters.
