The Issue Whether Florida Administrative Code Rule 61G15-20.006(2) is an invalid exercise of delegated legislative authority pursuant to Subsection 120.52(8), Florida Statutes (2004).
Findings Of Fact Petitioner, D. Gregory Ruck, filed an application for licensure by endorsement as a professional engineer. Petitioner is a 1990 graduate of Ohio State University with a degree in engineering physics. Although Ohio State has many engineering programs which are accredited by the Accreditation Board for Engineering and Technology (ABET), the engineering physics program is not accredited. The Board of Professional Engineers has rulemaking authority concerning review and approval of schools or colleges and the courses of study in engineering in such schools and colleges. § 471.013, Fla. Stat. Florida Administrative Code Rule 61G15-20.006 reads as follows: Educational Requirements The evaluation of curricula and standards of accreditation for approval of degree programs required by Section 471.013, F.S., shall be based upon: An overview of engineering programs within the United States accredited by the Engineering Accreditation Commission of the Accreditation Board for Engineering And Technology, Inc. (ABET), and An evaluation of such programs and schools, following the definition of the practice of engineering set forth in Section 471.005(6), F.S. This rule shall not apply to Board approved engineering programs or where ABET accreditation is available to a school or college of engineering. Acceptable curricula requirements and degree programs shall conform to the criteria for accrediting engineering programs set forth by the Engineering Accreditation Commission of the Accreditation Board for Engineering and Technology, Inc. (ABET) and found in the applicable Annual Report of ABET. The evaluation of the applicant's transcript and degree program shall include a determination of whether such transcript and degree program is comparable to the above-mentioned model by the Education Advisory Committee as defined in Rule 61G15-18.015. In order to verify the applicant's curriculum and engineering program the Board may require evidence from the applicant's institution(s) at the cost of the applicant as to the areas mentioned in 61G15-20.006(3), including when the information necessary for the evaluation set forth in (4) is not available, a site visit by Educational Advisory Committee of the Board at the expense of the applicant. (emphasis supplied) On June 24, 2005, Petitioner was denied licensure by Respondent because Petitioner's bachelor's degree was from the engineering physics program at Ohio State University, which is not accredited by the Engineering Accreditation Committee of the ABET. Accordingly, Petitioner is substantially affected by the challenged Rule and has standing to bring this action. Florida Administrative Code Rule 61G15-20.006(2), has previously come under court scrutiny. Petitioner cites Gaudet v. Florida Board of Professional Engineers, 900 So. 2d 574 (Fla. 4th DCA 2004). Respondent now cites the same case in its Proposed Final Order. In response to the mandate of Gaudet, Respondent commenced rulemaking by publishing a notice of rule development of Florida Administrative Code Rule 61G15-20.006. The notice was published September 23, 2005, more than 11 months after the Gaudet opinion was issued, and more than three months after this rule challenge was filed.
The Issue The issues in these cases are whether the following rules promulgated by the Respondent, the Department of Business Regulation [now the Department of Business and Professional Regulation], Division of Pari-mutuel Wagering, are valid exercises of delegated legislative authority: F.A.C. Rules 61D-1.002(18) [formerly 7E-16.002(18)] and 61D-1.006 [formerly 7E-16.006]; and emergency rules 7ERR92-2(18) and 7EER92-6.
Findings Of Fact On or about September 30, 1991, the Petitioner, John R. Witmer, applied to the Respondent, the Department of Business Regulation (now the the Department of Business and Professional Regulation), Division of Pari-mutuel Wagering (the Division), for a three-year occupational license as a veterinarian. The license was issued with a scheduled expiration in 1994. In October, 1993, the Division filed an Administrative Complaint alleging that the Petitioner violated emergency rule 7EER92-2(18) and F.A.C. Rule 61D-1.002(18) (formerly codified as F.A.C. Rule 7E-16.002(18)) on November 11, 1992, and April 2, 1993. The charges remain pending and have been referred to the Division of Administrative Hearings, where they have been given DOAH Case No. 93-6638. On or about June 18, 1992, the Division released the legal opinion of its General Counsel that, if certain provisions of the statutes governing pari- mutuel wagering were allowed to sunset on July 1, 1992, the Division legally would be unable to regulate pari-mutuel wagering adequately, and pari-mutuel wagering would become illegal in Florida. In response to the legal opinion, several tracks and jai alai frontons filed suit in circuit court seeking declaratory and injunctive relief. On or about June 30, 1992, a temporary injunction was issued in the court case requiring the parties to maintain the status quo in effect on June 30, 1992, until further order. A final hearing in the court case was held on August 10, 1992. The court's Final Order held that the statutes that remained in effect after July 1, 1992, were "legally sufficient and not in violation of Article X, Section 7, of the Florida Constitution (1968) [a prohibition against lotteries not sanctioned by law]." The court dissolved the temporary injunction effective August 25, 1992. After the court decision, notwithstanding the earlier legal opinion issued by its General Counsel, the Division determined that it had the necessary statutory authority to promulgate emergency rules to implement what remained of the pari-mutuel wagering statutes after July 1, 1992. Approximately $1.7 billion in cash was being wagered annually. Taxes collected on the wagers amounted to approximately $105 million a year. The possibilities for cheating and stealing to obtain a piece of the action illegally are endless, requiring effective regulation and constant vigilance. It is not unusual, for example, for cheaters to attempt to drug race animals illegally. As a result, some 85,000 urine and blood samples are taken from race animals annually. It was determined that, under the remnants of the statutes that remained after July 1, 1992, there were three areas vital to the public's welfare for which sanctions or rulemaking, or both, were necessary: (1) regulation of the pari-mutuel wagering pool; (2) regulation relative to the collection of taxes; and (3) regulation of the administration of medicines and drugs to racing animals. Fifty-four emergency rules, designated 7EER92-1 through 7EER92-54, were promulgated on or about August 24, 1992. (These compare to the 340 rules previously promulgated under the authority of, and to implement, the entirety of Chapter 550, Fla. Stat. (1991), in effect before July 1, 1992.) In addition, the Division requested that the tracks and frontons promulgate "in-house" rules in an attempt to maintain, as a practical matter, the status quo as of June 30, 1992, to the extent possible. On or about November 22, 1992, the emergency rules were replaced by permanent rules, designated F.A.C. Rule Chapter 7E-16, and F.A.C. Rule Chapter 7E-4 was repealed. On or about December 16, 1992, the Legislature enacted Chapter 92-348, Laws of Florida (1992), a new comprehensive statute governing dog and horse racing pari-mutuel wagering. It replaced the prior law. The final bill analysis and economic impact statement produced by the House of Representatives Committee on Regulated Industries referred to Chapter 92-348 as a "revision" of the law on the subject. The Division suggested to the Senate Commerce Committee that an earlier Senate version of the bill contain a retroactive "savings clause" to specify that the Division would have jurisdiction to prosecute disciplinary proceedings against occupational licensees that were pending on July 1, 1992, under the Division's emergency rules and under the provisions of what would become Chapter 92-348. No such provision was included in Chapter 92-348. On or about December 17, 1992, the Division transmitted to the Department of State, Bureau of Administrative Code, as "technical changes" under F.A.C. Rule 1S-1.002(9), "corrections" to the statutory authority for, and law implemented by, F.A.C. Rule Chapter 7E-16. The "corrections" substituted appropriate provisions from Chapter 92-348. The Division interprets F.A.C. Rule 1S-1.002(9) to apply to changes in the statutory authority for, and law implemented by, rules. F.A.C. Rule Chapter 7E-16 later was redesignated as F.A.C. Rule Chapter 61D-1. Between July 1 and December 16, 1992, the Division issued some 11,000 occupational licenses and denied some 22 applications. During this time period, the Division collected some $400,000 in occupational license fees. The fees were part of the more than $800,000 collected in the fiscal year ending June 30, 1993. During the period from July 1 to December 16, 1992, the Division dismissed more than 80 pending disciplinary matters out of concern for whether the Division still had authority to impose sanctions for the violations in question. In addition, during that time period, out of the same concerns, the Division declined to prosecute more than 260 other cases in which track judges or stewards had found violations.
Findings Of Fact On or about September 30, 1980, petitioner mailed its application to respondent for registration of the trademark "Cachet". Accompanying the application were a check for fifteen dollars ($15.00) and shoe insoles stamped "Cachet", each bearing an escutcheon and the legend "MADE IN SPAIN". On October 14, 1980, respondent returned petitioner's application, declining to register "Cachet" as a trademark in the absence of consent by Cachet, Inc., an unrelated active Florida corporation for profit with a Miami address, duly registered with respondent. Cachet, Inc. has not registered any trademark with respondent, and does not sell shoes. Ms. Nettie Sims, chief of respondent's bureau of corporate records and an employee of respondent for 27 years, testified that this action was in keeping with respondent's policy going back as far as she could remember.
Findings Of Fact Petitioner is the state agency charged in conjunction with the Construction Industry Licensing Board with the responsibility for prosecuting the Administrative Complaint in this proceeding pursuant to chapters 455 and 489 and the rules promulgated thereunder. At all times material to this proceeding, Respondent was licensed as a certified pool contractor in the State of Florida pursuant to license number CP C009588. Respondent was the licensed qualifying agent for Pools by L.S. Rule, Inc. ("Pools"). Respondent contracted with Andre Olson on January 29, 1987, to construct a swimming pool for $15,000.00 at Mr. Olson's residence in Lighthouse Point, Florida. Respondent completed one half to two thirds of the work required under the terms of the contract. Respondent was paid approximately $14,250.00, or 95 percent of the contract price. Construction began sometime in April, 1987, and proceeded over the next month and a half. Respondent abandoned construction before completing all of the contracted work due to personal problems unrelated to the conduct of his business. Respondent informed Mr. Olson approximately six months after construction had stopped that Respondent was closing his business and would be unable to complete construction of Mr. Olson's pool. Mr. Olson paid subcontractors approximately $3,000.00 in addition to the amount paid Respondent to complete his pool. Some of the subcontractors had been subcontractors for Respondent. Mr. Olson eventually obtained a final inspection. Respondent failed to properly install the pool drain plumbing on Mr. Olson' pool. The improperly installed drain caused the pool to leak excessively. It would cost approximately $4,800.00 to repair the faulty drain. Respondent failed to properly supervise Pools. Respondent failed to properly supervise construction performed by Pools with respect to the construction of Mr. Olson's pool. Respondent failed to properly supervise the financial operations of Pools with respect to the construction of Mr. Olson's pool. Respondent has a history of disciplinary proceedings. Respondent was disciplined by the Construction Industry Licensing Board (the "Board") on March 14, 1989, in connection with an unrelated matter, for violating Subsections 489.129(1)(h) and (k), Florida Statutes. Respondent was issued a Letter of Guidance in Department of Professional Regulation Case NO. 062214. Respondent's personal problems were caused in part by a divorce proceeding which has been resolved. Respondent has resumed business and is beginning to recover from his financial losses.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Subsections 489.129(1)(h), (k), and (m), Florida Statutes. Respondent's violations of Subsections 489.129(1)(h) and (k) are repeat offenses. Respondent, therefore, is subject to suspension and revocation of his license. In view of the fact that Respondent has resolved his former personal problems and is attempting to return to a self supporting business, it is recommended that Respondent be placed on probation for a period of three years from the date of the final order in this proceeding, subject to reasonable conditions imposed by Petitioner, and pay an administrative fine of $5,000.00. If Respondent fails to comply with the terms of the preceding sentence, it is recommended that Respondent's license be revoked. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of September, 1990. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1990.
The Issue Whether Florida Administrative Code Rule 61G16-9.001 is an invalid exercise of legislatively delegated authority in violation of Section 120.52(8), Florida Statutes, and whether certain statements of the Department of Business and Professional Regulation (DBPR or the Department) are "agency statements" defined as rules that should be adopted through the rulemaking process pursuant to Section 120.54, Florida Statutes.
Findings Of Fact Petitioner, Dr. Bacchus, is a hydroecologist with a multidisciplinary degree. While Dr. Bacchus lives in Georgia, she alleges that a substantial amount of her income comes from conducting environmental consulting services in Florida. According to her Amended Petition, Dr. Bacchus is not licensed by the Department. Respondent, Department of Business and Professional Regulation, is the state agency charged with the licensing and regulation of a variety of professions. The practice of geology is among the professions it regulates, pursuant to Chapters 455 and 492, Florida Statutes. Created within the Department is the Board of Geology. Petitioner is the subject of an Administrative Complaint issued on or about September 27, 2006, charging her with the unlicensed practice of geology in violation of Section 492.112(1)(a), Florida Statutes (2005). The Administrative Complaint, which is attached as an Exhibit to the Amended Petition, does not cite to any rules. As of the date of hearing, the Administrative Complaint had not been referred to the Division of Administrative Hearings Petitioner does not allege that she has any intention of seeking licensure from the Department. Florida Administrative Code Rule 61G16-9.001 Florida Administrative Code Rule 61G16-9.001 is a rule adopted by the Board of Geology, as opposed to the Department of Business and Professional Regulation. The rule, entitled "Disciplinary Guidelines," identifies the range of penalties normally imposed by the Board of Geology against licensees for violations of provisions in Chapters 455 and 492. All of the possible violations addressed by the Disciplinary Guidelines are statutory violations. The rule is lengthy and will not be repeated ver batim. The text of subsections (1) and (2) are tables of penalty ranges. Subsection (1) deals with violations of provisions in Chapter 492, whereas subsection (2) of the rule addresses violations of Chapter 455. Subsection (3) is entitled "The Usual Conditions" and outlines provisions that are included in all disciplinary orders; conditions imposed whenever fines and costs are imposed; conditions which may be imposed with probation; and conditions which may be imposed when a license is suspended. Subsection (4) identifies the purpose of the Disciplinary Guidelines, and states: (4) Purpose of guidelines -- The range of penalties set forth above is the range from which disciplinary penalties will be imposed upon licensees guilty of violations of the laws and rules. The purpose of these guidelines is to give notice of the range of penalties which will normally be imposed for specific violations. The guidelines are based upon a single count violation of the provision listed. Multiple counts of violations of the same provision, or unrelated provisions of the law or rules will be grounds for enhancement of penalties or imposition of additional penalties. [Emphasis supplied.] Subsection (5) of the rule addresses aggravating and mitigating circumstances to be considered when imposing penalty, and subsection (6) identifies those instances when the Department may issue a Notice of Noncompliance. The rule lists as its specific authority Sections 455.2273, 492.104(1), and 492.113(3), Florida Statutes. The laws implemented are Sections 455.227, 455.2273, 492.104(1), and 492.113(2), Florida Statutes. Section 455.227, Florida Statutes, identifies "across- the board" acts that constitute grounds for which disciplinary action may be taken by professional licensing boards or by the Department, where no professional licensing board exists. The penalties that can be imposed are the refusal to certify, or certify with restrictions, an application for a license; suspension or permanent revocation of a license; restriction of practice; imposition of an administrative fine; issuance of a reprimand; placement of a licensee on probation; or corrective action. Section 455.2273, Florida Statutes (2006), provides in pertinent part: 455.2273 Disciplinary Guidelines Each board, or the department where there is no board, shall adopt, by rule, and periodically review the disciplinary guidelines applicable to each ground for disciplinary action which may be imposed by the board, or the department where there is no board, pursuant to this chapter, the respective practice acts, and any rule of the board or department. Section 492.104(1), Florida Statutes (2006), provides: The Board of Professional Geologists has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement this chapter. Every licensee shall be governed and controlled by this chapter and the rules adopted by the board. The board is authorized to set, by rule, fees for application, examination, certificate of authorization, late renewal, initial licensure, and license renewal. These fees should not exceed the cost of implementing the application, examination, initial licensure, and license renewal or other administrative process and shall be established as follows: The application fee shall not exceed $150 and shall not be refundable. Section 492.113(2), Florida Statutes (2006), states that the Board of Geology shall specify what acts or omissions constitute a violation of section (1) of the section, which is entitled "Disciplinary Proceedings." Subsection (1) identifies several different grounds for which disciplinary action may be taken against a licensee. While Section 492.113(2) is listed as a law being implemented by Rule 61G16-9.001, the Rule does not specify any acts or omissions constituting a violation of Section 492.113(1), Florida Statutes. It simply paraphrases the statutory language of each statutory provision and gives a range of penalties for each violation. Agency Statements as Rules Petitioner also attempts to challenge agency statements and agency actions not adopted as rules. The Amended Petition states: 2. . . . Examples of the text and description of the statements and agency actions, pursuant to § 120.56(4)(a), F.S. and as defined in § 120.52, F.S., are provided in the Department's: Administrative Complaint against Petitioner, SYDNEY T. BACCHUS, Ph.D. (hereinafter "Dr. Bacchus") signed on September 27, 2006, attached and incorporated by reference hereto as Exhibit A; Undated Settlement Stipulation accompanying the above-referenced Administrative Complaint against Dr. Bacchus, attached and incorporated by reference hereto as Exhibit B. Cease and Desist Order against Dr. Bacchus signed on February 15, 2006, attached and incorporated by reference hereto as Exhibit C. Complaint No. 2005056737 against Dr. Bacchus signed on January 26, 2006 and threatening criminal charges, attached and incorporated by reference hereto as Exhibit D; and Complaint No. 2003063556 against Dr. Bacchus signed on May 22, 2003 and threatening criminal charges, attached and incorporated by reference hereto as Exhibit E. [Emphasis Supplied.] Failure to Adopt Rules Petitioner apparently also seeks to address the failure of the Department to adopt rules identifying what acts constitute the unlicensed practice of geology. The Amended Petition states in pertinent part: In 1987, the Board was authorized to govern and control every licensed professional geologist, pursuant to s. 4, ch. 87-403, Laws of Florida. The Board was not authorized to govern and control persons not licensed as a professional geologist. In 1987, the Department was mandated to "specify, by rule what acts or omissions constitute a violation" of the "[P]ractice of geology," pursuant to subsection (2) s. 12, ch. 87-403 Laws of Florida. * * * 46. The Department has failed to specify, by rule, "what acts or omissions constitute a violation" of the "[P]ractice of geology," to allow an unlicensed person to "know" what constitutes the practice of geology. In the absence of such specificities, a person cannot "knowingly" engage in the unlicensed "[P]ractice of geology" or "knowingly employ unlicensed persons to practice geology, pursuant to subsection (1) s. 12, ch. 87-403 Laws of Florida. [Emphasis in original.] Petitioner's Unilateral Pre-Hearing Statement does not mention Rule 61G16-9.001. Petitioner's statements identifying what she views as the scope of the proceeding state the following: Brief General Statement of Petitioner's Position The Department is regulating unlicensed members of the public under Chapters 492 and 455 Florida Statutes, using unpromulgated rules and rules that are an invalid exercise of delegated legislative authority. Such unlawful regulation violates the constitutional freedom of speech of unlicensed persons. The Department is impermissibly encroaching on the powers of the judiciary. * * * Issue of Fact that Remain to be Litigated 1. Whether the Department is regulating unlicensed members of the public under Chapters 492 and 455 Florida Statutes, using unpromulgated rules and rules that are an invalid exercise of delegated legislative authority. Issue of Law that Remain to be Litigated Whether the Department exceeded its lawful delegation of authority to regulate the "practice of professional geology" in the manner in which it is being regulated in Florida. Whether the Department has failed to give adequate notice to the public regarding what constitutes the unlicensed "practice of professional geology" in Florida. Whether the Department's rules are over- broad, vague, and are in invalid exercise of delegated legislative authority. . . . Whether the Department was required to promulgate rules to regulate the unlicensed "practice of professional geology" in Florida, but failed to promulgate those rules. Whether the Department has been engaged in a pattern of action that constitutes an unpromulgated rule. Whether the Department's recent regulation of the "practice of professional geology" in Florida constitutes selective enforcement. Petitioner was questioned at length during the consideration of the Motion to Dismiss regarding the basis of her challenge. She indicated not that she was concerned with the application of Rule 61G16-9.001 against her, but that she wished to challenge the entire regulatory scheme: THE COURT: . . . Doctor, all the disciplinary guideline rule does is name a statutory or rule violation. It paraphrases the statute itself. It doesn't provide any additional language to my knowledge and provides what penalty would be imposed should a licensee violate one of those statutory provisions. It doesn't -- and as I look at this, it doesn't even have any rule violations. Its statutory. DR. BACCHUS: Yes, Your Honor, I understand that, and I understand that it is confusing, but in fact I had received two charges from the department over a period of -- beginning -- I received the first notice in 2003 for a complaint filed I believe the previous year, and then second complaint that I received early in 2006 for a complaint filed against me in 2005 basically alleging that I was producing documents that in fact were required to have the seal and signature of a licensed geologist. So in fact the agency is regulating unlicensed persons using the language from 61G16 despite the fact that they are not referencing the rule citation. You know, I'm an unlicensed individual, complaints are being filed against me because I am producing documents that have only my name. No reference to the title of professional geology, no insinuation that I am a geologist, a professional geologist, a licensed professional geologist, no reference to that whatsoever, yet complaints are being filed against me with the department and they are taking action against me. THE COURT: But again, getting back to this rule. Even assuming -- and the merits of your administrative complaint are not before me and we're not going to talk about them. DR. BACCHUS: Yes, Your Honor, I understand. THE COURT: But even assuming that, even assuming that the department were going to take action against you based on whatever is charged in that administrative complaint, how is this rule -- you're not going to be -- this rule specifically says licensees. DR. BACCHUS: Yes, Your Honor, I understand that, but that's not how its being applied by the Department. I understand that this hearing is not a hearing to be addressing my complaints, but as I understand, my complaints are relevant with regard to my standing for this issue before the court today. And in fact because of the actions of the department against me, you know, multiple complaints can be filed against me for any written document that I have produced in the past or any written document that is pending, peer-reviewed publications that are pending to be released, because I don't have a license, they are using that language without referencing that rule to take action against me, your Honor. THE COURT: But again, you're saying they're not referencing that rule. DR. BACCHUS: That's correct, Your Honor. They're not referencing that, but because there is no comparable rule that has been promulgated and adopted and is being implemented for unlicensed activities, there is only the statute they are referencing, only 492 and 455, and because there isn't a comparable rule to 61G16 for unlicensed people, then by nature you have to look at what the licensed activity is to determine what the unlicensed activity is. Similarly, with respect to the actions taken by the Department against her personally, Dr. Bacchus asserted that these actions, which she characterizes as agency statements, give her standing to file this rule challenge. However, she does not allege that the Department's actions necessarily give her standing to challenge the specific rule alleged in the Amended Petition: THE COURT: So what is your position in terms of standing? These agency statements give you standing to challenge what? DR. BACCHUS: To challenge the regulation of unlicensed practice of professional geology in Florida. Because the broad sweeping net they are casting, Your Honor, encompasses every form of speech, every form of written document that I produce, whether it is a peer-reviewed publication, whether it is a comment letter to a public agency proposed action, I would have to challenge every single act. I literally cannot act until I am able to know what constitutes the practice of professional geology and the statute does not tell me that. Finally, with respect to what Dr. Bacchus describes as "illegal unpromulgated rules," Dr Bacchus described the unpromulgated rule as "this sweeping action, the fact that the statute does not define geological services, the statute does not define geological documents, yet the agency is taking action not only against me but against a myriad [of] other people for theoretically actions that constitute geological services."
Findings Of Fact Exhibit A is the Orientation Handbook (Handbook) for Lake Correctional Institution published in June 1980 by the Department of Corrections. Its first page reflects that it will be updated annually or as deemed necessary by the administration of the institution. A copy of this book is issued to every inmate. Inmates are disciplined for violating the mandates set forth in the Handbook; however, the Handbook by its own terms is a compendium of the statutes, rules, and regulations. It is subject to amendment by official memorandum posted on dormitory bulletin boards. Some of the regulations and rules set forth in the Handbook have been amended or stricken by the Department of Corrections. The Handbook no longer lists all of the existing infractions and certain of the infractions listed are no longer applicable. The Handbook states that the rules and regulations change from time to time and that it is the inmates' responsibility to check to see what the existing rules are. Thomas Hayes, DC# 053503, was given a corrective consultation for failing to stockade his mattress on his bunk. Paragraph 9 on Page 3 of the Handbook requires that inmates stockade their bunks. A source is not stated on the Handbook for this requirement to stockade bunks. Superintendent Staggers stated the authority for the requirement was Rule 33-3.01, Florida Administrative Code, and opined that it was a reasonable requirement related to health and welfare of inmates. Evidence was received regarding disciplinary action against Kevin Knight, DC# 094150, who was placed on Disciplinary Report for having a $5.00 bill in his possession when returning from the visiting area. Knight had not reported, as required, that he had the money in his possession when he entered the visiting are, and a search of Knight when he entered the area did not reveal the money. Possession of money (or negotiables) is prohibited. See Paragraphs 3-8, page 8 of the Handbook. The source of this prohibition is Section 944.47, Florida Statutes. Evidence was received that the inmates could not get free postage to mail pleadings to the Division of Administrative Hearings relating to this case. No reference to the Handbook was referenced by petitioners. Petitioner's Exhibit D is the applicable memorandum regarding Legal Mail implementing Rule 3.05, Florida Administrative Code. It limits Legal Mail to mail to or from: municipality, city, state & federal courts state attorneys private attorneys public defenders Hearing Officers of the Division of Administrative Hearings are not state attorneys, private attorneys, public defenders and the Division of Administrative Hearings is not a court. Evidence was received that there was not a specific source to which inmates and staff could refer to determine exactly what rules were operative. See testimony of Thomas Hayes DC# 053503. Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
The Issue This cause came on for consideration upon Respondent's Motion to Dismiss the Petition for Relief from a "Determination: No Cause," order entered by the Florida Commission on Human Relations.
Findings Of Fact The undisputed facts are as follows: After investigating Petitioner's Claim of Discrimination, the Florida Commission on Human Relations (FCHR) entered its Order, "Determination: No Cause," on March 12, 1996. FCHR's order unequivocally advised Petitioner that her Petition for Relief, if any, must be filed within 35 days. The thirty-fifth day would have been April 16, 1996. After the time as provided by FCHR's Rule 60Y-5.008(1) and by FCHR's March 12, 1996 order for the filing of her Petition for Relief had already run out, Petitioner filed a request for extension of time in which to file her Petition for Relief. Her request for extension stated that she needed the extension of time "due to failing health of my spouse and medical care and concern for him." This late request for extension of time was the only request for extension of time filed by Petitioner. It was dated April 17, 1996, (one day late) but it was not filed with the FCHR until April 24, 1996 (eight days late). Petitioner did not mail a copy of her April 1996 request for extension of time to Respondent as required by FCHR rules. Therefore, Respondent was unaware there had been a request for extension made to the FCHR until Respondent received the FCHR's order dated May 31, 1996. Because it had no notice that Petitioner was requesting an extension in April 1996, Respondent had no opportunity to object to the FCHR before the Commission entered its May 31, 1996 order. By its May 31, 1996 order, FCHR granted Petitioner an extension of time only until June 14, 1996 in which to file her Petition for Relief. The order does not state a number of days, but clearly and specifically states that the Petition for Relief must be filed by June 14, 1996. FCHR granted no further extensions to Petitioner for filing her Petition for Relief. Petitioner filed her Petition for Relief beyond the June 14, 1996 date assigned her by the FCHR. Although her Petition for Relief was dated June 14, 1996, FCHR's date stamp on the Petition for Relief shows that it was not filed with the Commission until June 18, 1996. FCHR transmitted the Petition for Relief to the Division of Administrative Hearings on or about July 12, 1996. Respondent filed a Motion to Dismiss the Petition for Relief and an Answer with affirmative defenses based on untimeliness. See, Conclusion of Law 15. In response to the October 8, 1996 order to show cause herein, Petitioner filed a pleading she labelled "Order Requiring Further Advices and to Show Cause." Although she had been required to show cause why she did not timely file her Petition for Relief between May 31, 1996 and June 18, 1996, she instead explained her tardiness in filing for an extension of time back in April 1996 this way: I was under the impression that I had 35 days to respond from the time I received the Notice of Determination: No Cause. I receive [sic] this notice on March 15, 1996, under my impression the 35 day lapse period would have been until April 19, 1996. I feel my response met this time period as my letter was dated April 17, 1996. In response to the October 8, 1996 order herein, Petitioner has offered no explanation why she filed her Petition for Relief beyond the clearly specified extension period granted her by the Commission.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
Findings Of Fact On December 30, 1993, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding." The pleadings and papers transmitted by FCHR show that Petitioner filed a complaint with FCHR on March 10, 1993, charging an unlawful employment practice by Respondent in connection with a denial of a raise in salary. On August 24, 1993, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice has occurred. Notice of that determination was served on Petitioner and Respondent on August 24, 1993 by regular mail. The Notice of Determination of No Cause served on Petitioner included the following statement: The parties are advised that the Complainant may request that a formal, post-investigative proceeding be conducted. The Request for Hearing/Petition for Relief must be filed within 30 days of the date of mailing of this Notice and should be in compliance with the provisions of Rule 60Y-5.008 and Chapter 60Y-4, Florida Administrative Code. A Petition for Relief form is enclosed. If you elect to file a Petition for Relief, it may be beneficial to seek legal counsel prior to filing the petition. Petitioner received the Notice of Determination. Petitioner understood that, under the FCHR rules cited in the Notice, the requirement for the petition to be "filed" meant that the petition had to actually be received by the FCHR. On September 30, 1993, 37 days after the Notice was served, the FCHR Executive Director issued a Notice of Dismissal, for the reason that no Petition for Relief had been filed. On October 13, 1993, Petitioner transmitted to the FCHR her Petition for Relief, requesting an administrative hearing. The petition was submitted on the form provided by the FCHR, and was accompanied by a transmittal letter from the Petitioner on her letterhead stationery that identified the enclosures. It was filed with the FCHR on October 18, 1993. After receiving the October transmittal, on November 18, 1993, the FCHR issued an Order to Show Cause, directing the Petitioner to provide reasons why the late-filed petition should not be dismissed. Petitioner responded to the show cause order by transmitting a package to the FCHR on November 30, 1993. It contained her response to the show cause order, a copy of the petition transmitted in October, and another original petition on a second form that Petitioner said was provided to her by the FCHR. This transmittal was also accompanied by a transmittal letter on Petitioner's letterhead stationery, describing the contents. The FCHR did not rule on the sufficiency of Petitioner's response, but rather transmitted the pleadings (including the show cause order and response) to DOAH for further proceedings. At the same time of the transmittal to DOAH, FCHR also issued a notice of the petition to Respondent advising it of the requirement to file an answer to the Petition for Relief. CFRH timely filed its answer with affirmative defenses, including the first affirmative defense that "the Petition for Relief is untimely." The Petitioner made two mailings of petitions: one mailing was made to transmit one form petition that she had completed in October, 1993, and a second mailing was made in November with a copy of the first form plus another original form filled out by Petitioner. Petitioner also testified that she mailed another petition, without a transmittal letter, on September 20, 1993. There was no evidence presented that a Petition was received by FCHR in September 1993 or that the document was returned to Petitioner as undelivered mail.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in DOAH Case No. 94-0070 and FCHR Case No. 93-3143, for failure to timely file the Petition. DONE AND ENTERED this 27th day of July, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1994.
Findings Of Fact The Secretary of the Respondent, Department of Transportation, determined that the Department's Division of Construction and Division of Materials and Research were over-staffed within the Department's third district. The Secretary identified ninety-nine positions as being surplus, and initiated action to delete them. The procedures for accomplishing the layoffs and transfers that the Secretary's decision necessitated are set out at Section 110.227, Florida Statutes, and in rules of the Department of Administration ("DOA" hereafter), Chapter 22A-7, Florida Administrative Code. DOA rules set out standards whereby an employee laid off can accept a position at the same or lower classification within a designated competitive area, and in effect "bump" an employee who has fewer retention points under the DOA rules. DOA rules require that an agency seeking to implement a layoff obtain approval from DOA as to what classifications will be eligible to be bumped, and as to what the competitive for layoff purposes will be. The Department of Transportation requested approval for confining retention rights to its Division of Construction and its Division of Materials and Research within its third district, which covers north Florida counties. DOA approved limiting the retention rights to the designated division but designate the competitive area as Statewide rather district-wide. The Department of Transportation thereafter notified employees affected by the layoff, and advised them of available options for retention. The Department did not engage in rule-making procedures in implementing the layoff. The Petitioner Johnnie T. Groves has been employed with the Department of Transportation for twenty-two years. Prior to the instant layoff action, he was employed as an "Engineer I" in the Division of Construction in Jacksonville, Florida. He was advised by letter dated July 9, 1980, that his position had been identified as surplus. He thereafter received "layoff guidelines," from the Department. Under procedures followed by the Department, he was given the option of staying in Jacksonville but having to move back two positions to a position as "Engineering Technician III," or moving to Perry, Florida, to take another position as an "Engineer I." The option of staying in Jacksonville would result in the Petitioner making less money. Moving to Perry would cause him considerable inconvenience. He has resided in Jacksonville for some time and operates a farm there which supplements his income. The Petitioner D. J. Miller has been employed with the Department of Transportation for more than twenty years. Prior to the implementation of the layoff, Miller was employed by the Department in its Jacksonville office as an "Engineer I." He received the same notification that his position was scheduled to be deleted as did the Petitioner Groves. His options under the procedures followed by the Department were to stay in Jacksonville and to take a position as an "Engineer I" in the "pre-stress construction yard," or to move to Gainesville and take a position similar to the one that he had held in Jacksonville. The job in Jacksonville was at a lower rate of pay and, due to an eye problem and dust at the pre-stress construction yard, could cause the Petitioner some physical difficulties. The Petitioner is divorced and has a twelve-year-old son. He relies upon his parents, who reside in Jacksonville, to assist in caring for his son, and any move would impose a hardship upon him. The Petitioner C. R. Henderson has been employed by the Department of Transportation for twenty years. At the time that the layoff was announced, the Petitioner was employed in the Department's Construction Division in Jacksonville as an "Engineer I." The Petitioner received the same notification that his position was being deleted as had the Petitioners Groves and Miller. The Petitioner's options were to stay in Jacksonville and take a position in the pre-stress construction yard, or move to Lake City where he could take a position similar to the one that he had held in Jacksonville. He did not feel competent to take the position in the pre-stress construction yard. Taking the job in Lake City has created a hardship for the Petitioner. He operates a ranch to supplement his income near Jacksonville, Florida, and the new location is seventy-two miles from his home.
