The Issue The issues are whether Respondent's construction of Section 11.062, Florida Statutes (2006), is an unadopted rule, described in Subsection 120.56(4), Florida Statutes (2006); whether rulemaking is not feasible for a reason authorized in Subsection 120.54(1)(a), Florida Statutes (2006); and whether either of the petitioners is a person substantially affected by the unadopted rule. (Statutory references are to Florida Statutes (2006)).1
Findings Of Fact Petitioner, Capital Collateral Regional Counsel-Middle Region (CCRC-MR), is one of three governmental units authorized in Section 27.701 to provide collateral legal representation for certain persons convicted and sentenced to death in the state. Each governmental unit functions in a distinct multi-county region identified in the statute as either the northern, middle, or southern region. The middle region in which CCRC-MR is statutorily required to function consists of eight judicial circuits. The judicial circuits are statutorily identified as the Fifth, Sixth, Seventh, Ninth, Tenth, Twelfth, and Thirteenth Judicial Circuits. Petitioner, John W. Jennings, is the Capital Collateral Regional Counsel with statutory responsibility for administering CCRC-MR. The Supreme Court Judicial Nominating Committee recommended Mr. Jennings to the Governor, the Governor appointed Mr. Jennings, and the Florida Senate confirmed the appointment. Each appointment is for a three-year period. Mr. Jennings is currently subject to reappointment. The administration of CCRC-MR is supervised by the Commission on Capital Cases (Commission). The Commission has exclusive statutory responsibility for the oversight of each regional office pursuant to Section 27.709. The Commission consists of six members each of whom serves a term of four years. The Governor appoints two members to the Commission. The President of the Senate and the Speaker of the House each appoint two members. One of the two members appointed by the President and Speaker, respectively, must be a member of the majority party, and the other appointee must be a member of the minority party. The Office of Legislative Services is statutorily required to provide staff support to the Commission. Salaries for each regional office must be submitted annually to the Justice Administrative Commission and the offices of the President of the Senate and the Speaker of the House in accordance with Subsection 27.705. However, Section 27.702(1) provides, in relevant part: The three capital collateral regional counsels' offices shall function independently and be separate budget entities, and the regional counsels shall be the office heads for all purposes. The Justice Administrative Commission shall provide administrative support and service to the three offices to the extent requested by the regional counsels. The three regional counsels shall not be subject to control, supervision, or direction by the Justice Administrative Commission in any manner, including, but not limited to, personnel, purchasing, transactions involving real or personal property, and budgetary matters. Respondent is a state agency authorized in Section 17.002. Respondent is an executive agency described in Subsection 20.121. Section 11.062, in relevant part, prohibits an executive, judicial, or quasi-judicial department from using public funds to retain a lobbyist other than a full-time agency employee (outside lobbyist) to represent the department before the legislative or executive branches of government (prohibited lobbying). If public funds are misused for prohibited lobbying, the statute provides that Respondent "shall" deduct the amount of misused public funds from the salary of the responsible state employee and that the offending department will be barred from authorized lobbying for two years.2 It is undisputed that Petitioners have registered and paid outside lobbyists to lobby the legislative and executive branches of government on behalf of CCRC-MR from 2001 through 2005. The primary purpose of the lobbying effort has been to ensure annual budgets that are adequate for effective legal representation of persons convicted and sentenced to death in those judicial circuits that are within the functional and territorial purview of CCRC-MR. Between April 15, 2002, and June 22, 2005, Petitioners submitted approximately 28 invoices to Respondent totaling $119,000. Two invoices on April 15 and May 23, 2002, were for $10,000 each. Five invoices from August 25, 2003, through January 26, 2004, were for $2,600 each. The remaining 21 invoices ranged from $3,400 to $7,500 each. Each of the invoices were earmarked as payments for "consulting services." However, Respondent has been aware since 2001 that CCRC-MR has engaged outside lobbyists to represent CCRC-MR before the legislative and executive branches of government. Respondent approved all of the invoices. A primary dispute between the parties involves the issue of whether CCRC-MR is an agency of the executive branch of government (executive agency) or an agency of the legislative branch (legislative agency). Respondent construes Section 11.062 to mean that CCRC-MR is an executive agency and that Section 11.062 prohibits CCRC-MR from using public funds to lobby the legislative or executive branches of government. Petitioners construe Section 11.062 to mean that CCRC-MR is a legislative agency that is not prohibited from using public funds for prohibited lobbying.3 A determination of whether CCRC-MR is an executive or legislative agency is not necessary for the disposition of this rule challenge. A rule challenge conducted pursuant Section 120.56(4) does not require a determination that Respondent's statutory construction of Section 11.062 is invalid because it exceeds the scope of delegated legislative authority or for any of the other reasons described in Subsections 120.52(8)(b) through (f). The scope of this rule challenge is limited to a determination of whether the challenged statutory construction is invalid solely because Respondent has failed to promulgate the statutory construction as a rule within the meaning of Subsection 120.52(8)(a). For Petitioners' rule challenge to succeed, Subsection 120.56(4) first requires the evidence to show that the challenged statutory construction is a rule. Subsection 120.52(15) defines a rule, in relevant part, to mean: . . . each agency statement of general applicability that implements, interprets, prescribes law or policy [but] . . . does not include [the express exceptions in Subsections 120.52(15)(a)-(c)]. Subsection 120.52(15) imposes several requirements that must be satisfied in order for Respondent's construction of Section 11.062 to be defined as a rule. First, Respondent must express the challenged statutory construction as an agency statement. Second, the agency statement must satisfy the test of general applicability. Third, the statement of general applicability must, in relevant part, implement, interpret, or prescribe law or policy. Finally, the statement of general applicability that implements, interprets, or prescribes law or policy must not fall within one of the express exceptions to the definition of a rule. Respondent has expressed the challenged construction of Section 11.062 in several statements of longstanding agency policy. That policy traces its roots to the early 1990s, and Respondent has iterated its policy through various means of government communication. Most recently, Respondent stated its policy in a letter to Mr. Jennings dated September 27, 2006, approximately eight days after Petitioners filed the instant rule challenge. In relevant part, the letter states: This is in response to your letter to the Bureau of State Payrolls dated September 20, 2006, regarding your W-4 Form. Whenever state employees are under investigation for possible misuse of state funds, we routinely flag their W-4 record in our payroll system; your payroll account was flagged because of questions surrounding lobbying expenditures you authorized. Because of this action, however, our data processing system automatically generated a new W-4 form that was inadvertently sent to you twice. Please disregard both of these W-4 forms. No action of any kind has ever been taken by this office as a result of the duplicate forms you received. We apologize for any inconvenience that may have been caused. Petitioner's Exhibit(P)- 9. Respondent previously stated the challenged statutory construction in an investigative report precipitated by several complaints against the Capital Collateral Regional Counsel for the Southern Region (CCRC-SR), the last of which Respondent received on March 29, 2005. Respondent's Office of Fiscal Integrity (OFI) initiated a formal investigation of CCRC-SR and subsequently expanded the scope of the investigation to include the lobbying activities of CCRC-MR. Respondent issued a final report of the investigation on August 29, 2006. In relevant part, the report expressed the challenged statutory construction as follows: CCRC officials have argued that CCRC's are not part of the executive branch, claiming this would make them exempt from the provisions of Section 11.062. . . . A legal opinion dated January 11, 2006, by DFS counsel indicates that although CCRC's were initially created in the judicial branch, they were moved to the executive branch in 1997. The legal opinion noted that the CCRC's have been repeatedly defined by statute as executive branch agencies. . . . Examples include Section 23.21(1). , which notes that CCRC's are included as "principal administrative unit(s) within the executive branch of state government. . . . CCRC's are also defined by name in Section 186.003(6) . . . as state agencies, which are in turn defined in this section as "any official, officer, commission, board . . . or department of the executive branch of state government.[4] * * * In the case of the CCRC-Middle office, a staff attorney working for Jennings wrote an opinion saying essentially that the CCRC's were exempt from the provisions of Section 11.062 . . . because in their opinion, they are not part of the executive branch. In Jennings sworn statement, he acknowledged that he did not seek a legal opinion from anyone outside of his office. According to Jennings' sworn statement, he continues to pay . . . for lobbying services even though the contract reflects "consulting services." Jennings, on behalf of CCRC-Middle authorized payments . . . totaling $119,000. * * * It is recommended that . . . DFS legal staff initiate action against . . . Jennings to recover . . . funds that were inappropriately paid by Jennings to lobbyist[s] in violation of Sections 11.062 and 216.311. P-1 at 19 and 20. Respondent has also stated the challenged statutory construction in an Interoffice Communication dated January 11, 2006, and in a memorandum to state agencies dated March 31, 2003. Respondent issued the latter memorandum as a direct result of the lobbying expenditures of CCRC-MR but did not deliver the memorandum to CCRC-MR. Respondent argues that it has not uttered an agency statement, in relevant part, because the recommendation in the Report of Investigation has no force or effect without the authorization of the agency head.5 The argument ignores substantial evidence of other iterations of the agency statement over the years as well as the consistent interpretation by agency witnesses of the force and effect of the statement in its various iterations. The agency statement of the challenged statutory construction satisfies the test of general applicability. Respondent intends the agency statement to have the force and effect of law. Respondent applies the statement in a manner that requires compliance by all state agencies and employees with the direct and consistent effect of law. The statement creates enforcement rights in Respondent and imposes substantive standards on state agencies and employees who are not described in the express terms of Section 11.062. According to the Program Manager in charge of OFI, it is unlawful for Petitioners to expend funds for outside lobbying irrespective of whether CCRC-MR is an executive agency or legislative agency. "The issue of whether they're an executive agency is just an issue of collection." Respondent's Director of the Division of Accounting and Auditing agrees with the testimony of the Program Manager. The agency statement of general applicability interprets and implements Section 11.062. Section 11.062 does not expressly define an executive agency to include CCRC-MR.6 The agency statement defining CCRC-MR as an executive agency interprets law within the meaning of Subsection 120.52(15). The executive branch of government is constitutionally and statutorily required to organize its executive agencies into no more than 25 departments.7 The executive departments enumerated in Chapter 20 do not expressly identify CCRC-MR as an executive agency. The agency statement that CCRC-MR is an executive agency interprets law within the meaning of Subsection 120.52(15). Respondent relies on Subsection 23.21(1) to define CCRC-MR as an executive agency for the purposes of Section 11.062. Subsection 23.21(1), in relevant part, defines the term "department" to include "a principal administrative unit within the executive branch . . . and includes . . . the Capital Collateral Representative. . . ." However, the quoted definition is expressly limited to "the purposes of this part", i.e., the Paper Reduction provisions in Sections 23.20 through 23.22. Expanding the quoted definition for purposes other than Paper Reduction, including the purposes of Section 11.062, interprets law within the meaning of Subsection 120.52(15). In similar fashion, Respondent relies on Subsection 186.003(6) to define CCRC-MR as a state agency. Expanding the definition beyond the purposes of Chapter 186 to include the purposes of Section 11.062 interprets law within the meaning of Subsection 120.52(15). Respondent states in the alternative that CCRC-MR is not an agency but is a subdivision of an executive agency. The parties devoted a substantial amount of evidence in an effort to demonstrate that CCRC-MR is a unit of either a legislative or executive agency of government. As previously stated, the scope of this proceeding does not require a resolution of the dispute between the parties. The competing evidence, however, does demonstrate that the challenged agency statement interprets law within the meaning of Subsection 120.52(15). The agency statement of general applicability that interprets law and implements Section 11.062 does not fall within an express exception to the definition of a rule in Subsection 120.52(15). The iteration of the agency statement in the letter to Mr. Jennings that followed the report of investigation is not an internal management memorandum, legal memorandum, or memorandum to other state agencies within the meaning of Subsections 120.52(15)(a), (b), or (c). The iteration of the agency statement in an internal management memorandum issued as a direct result of the lobbying efforts of CCRC-MR affects the private interests of Mr. Jennings, if for no other reason, by subjecting his salary to garnishment. The challenged statutory construction is a rule within the meaning of Subsection 120.52(15). Respondent has not promulgated the rule pursuant to the rulemaking procedures prescribed in Section 120.54. A preponderance of evidence does not support a finding that rulemaking is not feasible within the meaning of Subsection 120.54(1)(a)1. Respondent argued but offered no factual evidence to support such a finding. Nor did Respondent initiate rulemaking in accordance with Subsection 120.56(4)(e). Mr. Jennings is a person substantially affected by the unpromulgated rule within the meaning of Subsection 120.56(4)(a). Subsection 11.062(1) requires Respondent to garnish the salary of Mr. Jennings if Respondent determines that Mr. Jennings violated the statutory prohibition against outside lobbying. After Respondent concluded the administrative investigation on August 29, 2006, the Director of the Division of Accounting and Auditing directed the Bureau Chief for the Division of State Payrolls to access the personal payroll account of Mr. Jennings on two occasions. Respondent subsequently exercised prosecutorial discretion not to garnish the salary of Mr. Jennings. Mr. Jennings is currently subject to reappointment to his position of employment. Mr. Jennings must disclose to the Supreme Court Judicial Nominating Committee that he is currently under investigation by OFI. The disclosure subjects Mr. Jennings to a potential loss of reappointment. CCRC-MR is a person substantially affected by the unpromulgated rule. A change in leadership would impair the institutional knowledge required to adequately represent persons in eight judicial circuits who have been convicted and sentenced to death. Placement of CCRC-MR within the executive branch of government creates a potential conflict of interest for CCRC-MR. Such a placement arguably would make the legal representative of death row inmates responsible to the executive branch of government which, in turn, must either execute the clients of the representative or commute their death sentences.
The Issue Whether Florida Administrative Code Rule 61G4-15.008, constitutes an invalid exercise of delegated legislative authority because it enlarges, modifies, or contravenes Section 489.129(1)(a), Florida Statutes, and because it exceeds Respondent’s rulemaking authority; and Whether an interpretation of Section 455.227(1)(h), Florida Statutes, constitutes an unpromulgated “rule.”
Findings Of Fact The first 12 findings of fact are facts contained in the Stipulation: Prior to June 2005, Petitioner, Juan Cuellar, Luis Garcia, and Gerardo Quintero, received what appeared to be a valid Miami-Dade Building Business Certificate of Competency. Upon receipt, Petitioners applied to the Department of Business and Professional Regulation (hereinafter referred to as the “Department”), to obtain a registered contractor’s license using the Certificates of Competency. Based on the Certificates of Competency, the Department issued each Petitioner a registered contractor’s license bearing license numbers RG291103667 (Mr. Cuellar), RF11067267 (Mr. Garcia), and RF11067268 (Mr. Quintero). Petitioners each applied for a certificate of authority for their respective businesses, Cuellar Construction and Drywall (Mr. Cuellar), A.P.A. Plumbing Corp. (Mr. Garcia), and Q Plumbing Services Corp. (Mr. Quintero). Based on the fact the Certificates of Competency and the registered contractor’s licenses had been granted, the Department issued a certificate of authority to Cuellar Construction and Drywall, QB 41342; APA Plumbing Corp., QB 42763; and Q Plumbing Services Corp., QB 42825. At the time the Department issued Petitioners their registered contractor’s licenses and subsequent certificates of authority, it did so based solely on the Miami-Dade Building Business Certificates of Competency presented by Petitioners and the only information submitted to it. The parties stipulate that Petitioners were not entitled to their registered contractor’s licenses and certificates of authority because the Miami-Dade Building Business Certificates of Competency were not valid certificates. At the time of their applications to the Department, Petitioners were not qualified by any local jurisdiction or any other method necessary to receive a registered contractor’s license from the Department. The Department filed Administrative Complaints against Petitioners for the suspension or revocation of their licenses based on violations of Sections 489.129(1)(a), 489.129(1)(d), 489.129(1)(m), and 455.227(1)(h), Florida Statutes (hereinafter collectively referred to as the “Administrative Complaints”). (All references to Sections of Chapter 489, Florida Statutes, as they relate to the Administrative Complaint are to the 2005 version. All other references to Florida Statutes are to the 2007 version). Each Petitioner challenged the Administrative Complaint filed against him in DOAH Case No. 07-2823PL (Mr. Cuellar), DOAH Case No. 07-2824PL (Mr. Garcia), and DOAH Case No. 07-2825PL (Mr. Quintero). On December 13, 2007, the undersigned, as the Administrative Law Judge to whom the cases had been assigned, issued a Recommended Order in DOAH Case No. 07-2823PL (Mr. Cuellar), DOAH Case No. 07-2824PL (Mr. Garcia), and DOAH Case No. 07-2825PL (Mr. Quintero), determining that Petitioners violated Sections 489.129(1)(a), 489.129(1)(m), and 455.227(1)(h), Florida Statutes (hereinafter referred collectively as the “Recommended Orders”). The “Recommendation” in each of the Recommended Orders was, except for the name of the Respondent, the same as the following: Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Luis Garcia violated the provisions of Sections 489.129(1)(a) and (m), and 455.227(1)(h), Florida Statutes, as alleged in Counts I, III, and IV of the Administrative Complaint; dismissing Count II of the Administrative Complaint; requiring that Respondent pay the costs incurred by the Department in investigating and prosecuting this matter; giving Respondent 30 days to voluntarily relinquish his license; and revoking Respondent’s license if he fails to voluntarily relinquish it within 30 days of the final order. Based upon the foregoing, and the fact that no final decision has been entered by the Construction Industry Licensing Board (hereinafter referred to as the “Board”), Petitioners are facing the possible revocation or voluntary relinquishment of their licenses (an adverse impact whether they are “entitled” to the licenses or not), continued defense against the Administrative Complaints, and the payment of the cost incurred by the Department in prosecuting the Administrative Complaints. Should the Board revoke Petitioners’ licenses, they will also be precluded from re-applying for licensure for a period of five years pursuant to Section 489.129(9), Florida Statutes. Petitioners face the same consequence even if they voluntarily relinquish their license pursuant to Florida Administrative Code Rule 61G4-12.017(3)(a). The adverse consequences of the possible final action on the Administrative Complaints which they face stem in part from a finding that they have violated Section 489.129(1)(a), Florida Statutes, which provides the following: The board may take any of the following actions against any certificateholder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate, registration, or certificate of authority, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, impose an administrative fine not to exceed $10,000 per violation, require continuing education, or assess costs associated with investigation and prosecution, if the contractor, financially responsible officer, or business organization for which the contractor is a primary qualifying agent, a financially responsible officer, or a secondary qualifying agent responsible under 489.1195 is found guilty of any of the following acts: Obtaining a certificate, registration, or certificate of authority by fraud or misrepresentation. . . . . Petitioners were found in the Recommended Orders to have violated Section 489.129(1)(a), Florida Statutes, based upon an interpretation of that statutory provision adopted by the Board in Florida Administrative Code Rule 61G4-15.008, an existing rule which Petitioners have challenged in this proceeding (hereinafter referred to as the “Challenged Existing Rule”), which provides: Material false statements or information submitted by an applicant for certification or registration, or submitted for renewal of certification or registration, or submitted for any reissuance of certification or registration, shall constitute a violation of Section 489.129(1)(a), F.S., and shall result in suspension or revocation of the certificate or registration. Essentially the same conclusions of law were reached in the Recommended Orders concerning the application of the Challenged Existing Rule (in paragraphs numbered “23” through “25” or “25” through 27” of the Recommended Orders): While Respondent has not been specifically charged with a violation of Florida Administrative Code Rule 61G4- 15.008, the Department cited the Rule, which contains the following interpretation of what constitutes "[o]btaining a certificate, registration, or certificate of authority by . . . misrepresentation" in violation of Section 489.129(1)(a), Florida Statutes, in support of Count I of the Administrative Complaint: . . . . It is the Department’s position, that despite the fact that Respondent did not commit “fraud” in obtaining his license and a certificate of authority for [the business] and, in fact, did not knowingly submit false information to the Department in obtaining his license and the certificate of competency, “[m]aterial false statements or information” were nonetheless submitted by Respondent in support thereof. Florida Administrative Code Rule 61G4- 15.008, in defining what constitutes the act of "[o]btaining a certificate, registration, or certificate of authority by . . . misrepresentation” eliminates the need for the Department to prove any knowledge on the part of Respondent that he has made a material misrepresentation or any intent on the part of Respondent to rely upon a material misrepresentation. All that is required is proof that a material representation was made and that the representation was false. Petitioners have challenged the validity of the Challenged Existing Rule as being an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(b) and (c), Florida Statutes. Petitioners were also found in the Recommended Orders to have violated Section 455.227(1)(h), Florida Statutes, based upon an interpretation of that statutory provision advanced by the Department during the prosecution of the Administrative Complaints. Section 455.227(1)(h), Florida Statutes, provides that the following act constitutes grounds for which disciplinary action may be taken: (h) Attempting to obtain, obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the department or the board. (Emphasis added). The Department’s argument concerning the appropriate interpretation and application of Section 455.227(1)(h), Florida Statutes, advanced in the prosecution of the Administrative Complaints, was advanced in paragraphs 24 through 26 of the Department’s Proposed Recommended Order: Obtaining a certificate or registration in error as a result of a misrepresentation made during the application process is conduct proscribed by Section 455.227(1)(h), Florida Statutes. Respondent was issued a registration by error of the Department. To be issued a registration by the Department, an applicant must submit along with an application for registration, a copy of the applicant’s validly issued competency card from a local government licensing board . . . . Respondent submitted a fake competency card that appeared to be validly issued by the Miami Compliance Office. . . . If the Department had known Respondent’s Competency Card was fake and Respondents’ answer to the attest statement was false, the Department would not have issued Respondent a registration. Thus, since the Department did not have truthful and accurate information, the registration issued to Respondent was in error. The Department’s interpretation was described and accepted in the Recommended Orders (in paragraphs numbered “29” through “31” or “31” through 33”, in the Recommended Orders), as follows: In support of this alleged violation, the Department has argued that Respondent obtained his license “through an error of the department . . . .” That “error” was the Department’s reliance upon an improperly issued Miami-Dade building business Certificate of Competency. The evidence proved clearly and convincingly that the Department issued the Respondent’s license in “error.” While it is true that Respondent did not intentionally cause or even know of the error, the Department reasonably takes the position that Respondent obtained his license nonetheless as a result of this error and that is all that Section 455.227(1)(h), Florida Statutes. The Department has proved clearly and convincingly that Respondent violated Section 455.227(1)(h), Florida Statutes [requires]. Although not specifically quoted in their Petition in this case, Petitioners have quoted what they believe is the unpromulgated rule of the Board which they are challenging in this case in paragraph 60 of Petitioner’s Proposed Final Order (hereinafter referred to as the “Challenged Language”): . . . . Essentially, the Board applies the following unadopted rule when applying Section 455.227(1)(h): Disciplinary action may be taken pursuant to Section 455.227(1)(h), Florida Statutes, where an individual attempts to obtain a license through an error of the department even if the individual did not have knowledge of the error. As of the date of the final hearing of this matter, the Board had taken no action on the Recommended Orders.
The Issue The issues are whether, in violation of sections 120.54(1)(a) and 120.56(4), Florida Statutes, Respondent has made an agency statement that is an unadopted rule in implementing a 2017 statutory amendment broadening the category of first-time test-takers to be counted when calculating the passing rate of the graduates of Petitioner’s prelicensure professional nursing education program (Program) and whether, pursuant to section 57.111, Petitioner may recover attorneys’ fees and costs from Respondent. At Petitioner’s request, the parties presented evidence concerning constitutional challenges that Petitioner intends to present to a district court of appeal.
Findings Of Fact The Program is a prelicensure professional nursing education program that terminates with an associate degree. Respondent approved the Program in 2013, thus authorizing Petitioner to admit degree-seeking students into the Program, as provided in section 464.019. As provided by section 464.019(5)(a)1., the passing rate of the Program’s graduates taking the NCLEX for the first time must meet or exceed the minimum passing rate, which is ten points less than the average passage rate of graduates taking the NCLEX nationally for the first time. Until June 23, 2017, the passing rate of a Florida program was based only on first-time test-takers who had taken the exam within six months of graduating (New Graduates). Chapter 2017-134, sections 4 and 8, Laws of Florida, which took effect when signed into law on June 23, 2017 (Statutory Amendment), removes the six-month restriction, so that the passing rate of a Florida program is now based on all first-time test-takers, regardless of when they graduated (Graduates). The statutory language does not otherwise address the implementation of the Statutory Amendment. For 2015 and 2016, respectively, the minimum passing rates in Florida were 72% and 71.68%, and the Program’s New Graduates passed the NCLEX at the rates of 44% and 15.79%. As required by section 464.019(5), Respondent issued the Probationary Order. The Probationary Order recites the provisions of section 464.019(5)(a) specifying the applicable passing rate, directing Respondent to place a program on probation if its graduates fail to pass at the minimum specified passing rates for two consecutive years, and mandating that the program remain on probation until its passing rate achieves the minimum specified rate. The Probationary Order details the 2015 and 2016 passing rates of Petitioner’s relevant graduates and the minimum passing rates for these years. The Probationary Order makes no attempt to describe the condition of probation, which might have included a reference to New Graduates, other than to refer to section 464.019(5)(a)2., which, unchanged by the Statutory Amendment, specifies only that a program must remain on probation until and unless its graduates achieve a passing rate at least equal to the minimum passing rate for the year in question. For 2017, the minimum passing rate for a Florida program was 74.24%. If, as Respondent contends, the new law applies to all of 2017, six of the fifteen of the Program’s Graduates failed the NCLEX, so the Program’s passing rate was inadequate at 60%. If, as Petitioner contends, the old law applies to all of 2017, twelve of the Program’s test-takers were New Graduates, and only three of them failed, so the Program’s passing rate was adequate at 75%. Respondent clearly applied the Statutory Amendment retroactively to January 1, 2017, in the Order Extending Probation because the order states that that the passing rate of the Program’s Graduates for 2017 was only 60% and therefore extends Petitioner’s probationary status for 2018. The Order Extending Probation provides Petitioner with a clear point of entry to request an administrative hearing. Each party applies the Statutory Amendment without regard to the effective date of June 23, 2017, but Respondent reaches the correct conclusion: the passing rate of the Program’s graduates for 2017 was inadequate. The NCLEX is administered throughout the year, and the dates of graduation are available for Petitioner’s Graduates taking the NCLEX in 2017, so it is possible to calculate a combined passing rate, using only New Graduates under the old law for testing dates through June 22 and all Graduates under the new law for testing dates after June 22. From January 1 through June 22, 2017, five of the Program’s test-takers were New Graduates and they all passed. From June 23 through December 31, 2017, four of the eight Graduates taking the NCLEX passed the test. Combining these results for all of 2017, the Program’s passing rate was nine divided by thirteen, or 69%, which was inadequate for 2017.
The Issue Whether the Respondent discriminated against Petitioner in her employment based on her gender or race in violation of Section 760.10, Florida Statutes?
Findings Of Fact Janet Cartwright is a white female who formerly worked at the Department of Revenue (DOR or the Department) as a tax auditor. Ms. Cartwright began employment with the Department of Revenue May 1, 2000, as a tax auditor at the Atlanta Service Center. During her employment with DOR, she had four supervisors: Emmanuel Minta, Ron Lee-Owen, Glynn Walters and Evonne Jones Schultz. The function of a tax auditor is to audit all pertinent books and records of taxpayers assigned to them. Auditors are required to maintain a working knowledge of the taxes within their area of responsibility; to travel to the site of the taxpayer's books to perform their audit duties; to review all records during an audit for potential non-compliance with Florida tax statutes; to gather pertinent tax records to support their findings; and to prepare supporting work papers. Ms. Cartwright went on medical leave in September 2003 and did not return to work. On January 2, 2004, she notified her supervisor that she would be applying for early retirement based on a disability, and requested that her medical leave without pay status be extended until her retirement date was established. On or about March 29, 2004, her request for disability retirement benefits was denied. On April 19, 2004, a recommendation was made to terminate her employment based on Petitioner's inability to perform her duties. On July 13, 2004, Petitioner was advised by certified letter that the Department was proposing to terminate her from the position as Tax Auditor II, effective August 31, 2004. Ms. Cartwright acknowledged receiving the July 13, 2004, letter. The July 13, 2004, letter stated: You began employment with the Department of Revenue effective May 1, 2000, as a Tax Auditor I, and on July 12, 2000, you were promoted to a TA II position. You are currently a TA II, which is a field audit position that requires the auditor to independently travel to the taxpayer's location to audit the company's information for Florida taxes. You have been on Leave Without Pay (LWOP) status since September 18, 2003. Further, in a letter dated September 29, 2003, from your physician, Dr. Daniel Goodman, M.D., he indicates that due to your medical condition of narcolepsy, cataplexy and sleep apnea, you are chronically exhausted and always at a risk of falling asleep at any time and have difficulty operating a car at all times. Additionally, Dr. Goodman recommended that you look into getting long-term disability. On January 2, 2004, you provided a letter to your supervisor, Eve Jones, Process Group Manager, requesting that your LWOP status be extended until your retirement benefits are established. However, on March 29, 2004, you were denied disability benefits. The July 13, 2004 letter identified the disciplinary standard upon which the Department relied and the documents considered by the Department in making its decision. It concluded: Your continuing inability to perform your duties has caused not only a concern for your well being, but has also imposed a hardship on the other staff that have had to handle your job duties and responsibilities in addition to their regular duties. Your Program Director and I agree that because of your continuing inability to perform the duties of your position, with no indication of when you might be able to begin performing your normal work duties, dismissal for inability to perform assigned job duties [is] the only appropriate action in your case. No evidence was presented that Ms. Cartwright's termination was based upon her race or gender. The letter contained a notification of Petitioner's right to appeal the action to the Public Employees Relations Commission or to file a grievance pursuant to Section 447.401, Florida Statutes. Ms. Cartwright did not pursue either remedy. Instead she continued to pursue approval of her request for disability retirement, which was successful. On August 30, 2004, the day before her termination would be effective, she faxed to the Department a letter which stated: Last week I received the "Order of Remand," the final document necessary to process my disability retirement effective September 1, 2004. Therefore, after what was an extraordinary amount of time to apply for, and be approved for, disability retirement, I will be terminating employment as a Tax Auditor II effective August 31, 2004. I thank the Department for allowing me to remain on a leave of absence without pay during this process. On August 30, 2005, she filed a complaint against the Department with the Florida Commission on Human Relations alleging racial and gender discrimination. Ms. Cartwright claimed that she was denied training essential to her position; that she was denied a flex schedule; that she was asked to perform clerical and janitorial duties not required of her male counterparts; and that she was not allowed to drive her own car to field audit locations. The more credible evidence indicates that Ms. Cartwright received formal training in Tallahassee a few months after she was hired, received computer based training and on-the-job training. No credible evidence was received that other similarly situated employees received training denied to Ms. Cartwright. Her claim that she was denied training involved events occurring before she began medical leave without pay, well over a year before she filed her complaint with the Commission. Ms. Cartwright claimed that she was denied a flex time schedule. To the contrary, while there was a delay in approval of flex time during part of her tenure, Ms. Cartwright was approved for flex time schedules on May 2, 2000 (the day after beginning work with the Department) and on August 13, 2002. Ms. Cartwright admitted that the issue regarding flex time was resolved over three years before she filed her complaint with the Florida Commission on Human Relations. Ms. Cartwright, along with other members of the staff, was asked to perform clerical duties when the office was short- handed. Ms. Cartwright did not identify any person on the staff who was not asked to perform such functions. Likewise, members of the staff were asked to take shifts on a volunteer basis with respect to "coffee duty." Ms. Cartwright claimed that she was asked to clean out the refrigerator, but did not testify when this request was made. As she did not return to work after September 18, 2003, it would have been well over a year before she filed her complaint with the Florida Commission on Human Relations August 30, 2005. Finally, Ms. Cartwright claimed that she was not allowed to drive her own car to field audits. The more credible evidence indicates that Ms. Cartwright was never prohibited from driving her own car, but that office policy provided that when more than one auditor went to an audit location, only the senior auditor would be paid for mileage when using a personally owned vehicle. Ms. Cartwright did not identify any other employee who was not a senior auditor who was paid mileage when accompanying a senior auditor in the field. Moreover, the trips for which mileage was not approved occurred during the period covering September through December 2002. These trips occurred well over two years before Ms. Cartwright filed her complaint with the Commission on Human Relations. The issues raised in her complaint, i.e., lack of training, denial of flex schedule, performance of clerical or janitorial duties and not being compensated for driving her own car, are separate incidents and do not constitute a continuing violation tied to her proposed termination. All of the incidents identified in her complaint, including the proposed termination, occurred more than 365 days before Petitioner filed her complaint with the Commission on Human Relations.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of January, 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 2007.
The Issue The issue for disposition in this case is whether Respondents have implemented agency statements that meet the definition of a rule, but which have not been adopted pursuant to section 120.54.
Findings Of Fact Petitioner, Robert Wood, P.E., is a Florida-licensed professional engineer, holding license No. PE 31542. A large part of Petitioner?s work involves the design of aluminum-framed structures. Respondents, DBPR and FBPE, are charged with regulating the practice of professional engineering in the State of Florida, pursuant to chapters 455 and 471, Florida Statutes, and the rules promulgated thereunder, Florida Administrative Code Chapter 61G15. The FEMC is a public-private partnership established by the legislature to provide administrative, investigative, and prosecutorial services to the FBPE. By statute, the FEMC operates under a written contract (Contract) with the DBPR, which Contract is approved by the FBPE. Term of the Contract From the creation of FEMC in 1997 until 2000, the legislature provided that the required written contract was to be “renewed annually.” In 2000, the legislature amended section 471.38 to require that the written contract be an “annual contract.” In 2003, the legislature again amended section 471.38 to repeal the requirement that the contract be an annual contract. There is currently no specified term or time for renewal for the required written contract. The DBPR and the FEMC have elected to continue to enter written contracts with a term of one year. Determination of Legal Sufficiency Since its creation in 1997, section 471.038 has provided that “[t]he corporation may not exercise any authority specifically assigned to the board under chapter 455 or this chapter, including determining probable cause to pursue disciplinary action against a licensee, taking final action on license applications or in disciplinary cases, or adopting administrative rules under chapter 120.” The only change to that restriction was made in 2000, when the term “corporation” was changed to “management corporation.” In 2000, the legislature also enacted the Management Privatization Act, section 455.32, Florida Statutes. That Act was intended to establish a model for the creation of non-profit corporations with which the DBPR could contract for “administrative, examination, licensing, investigative and prosecutorial services to any board created within the department.” The similarities between section 471.38 and section 455.32 make it obvious that the latter was largely patterned after the former. Among the duties to be performed by a “corporation” under section 455.32(10) is to: . . . make a determination of legal sufficiency to begin the investigative process as provided in s. 455.225. However, the department or the board may not delegate to the corporation, by contract or otherwise, the authority for determining probable cause to pursue disciplinary action against a licensee, taking final action on license actions or on disciplinary cases, or adopting administrative rules under chapter 120. In previous years, at least through 2001, the written contract between the DBPR and the FEMC provided that “FEMC shall not exercise the police powers inherent in the Department and the FBPE including a determination of legal sufficiency or insufficiency of a disciplinary complaint.” At some time after the passage of the Management Privatization Act, the contractual “police powers” restriction was changed, and now reads, as reflected in the current Contract, as follows: Except when providing those prosecutorial and investigative services set forth in this Agreement, FEMC shall not exercise the police powers inherent in the Department and the FBPE under Chapters 455 or 471, Florida Statutes, including determining probable cause to pursue disciplinary action against a licensee, other than failure to comply with final orders of the Board as set forth in Rule 61015-18.005(2), Florida Administrative Code, taking final action on license applications or in disciplinary cases, or adopting administrative rules under Chapter 120, Florida Statutes. Prosecutorial servicing shall only be executed in the name of FBPE. That contractual restriction is consistent with the statutory limitation on the powers of the FEMC set forth in section 471.38. In its current form, the Contract establishes the services that are to be provided by FEMC to the DBPR and the FBPE. The list of prosecutorial services to be provided by FEMC include coordinating with investigators, reviewing and taking “appropriate action” on complaints, and preparing cases for presentation to the FBPE probable cause panel. The list of investigative services to be provided by FEMC include receiving complaints, interviewing complainants, witnesses, and subjects of complaints, issuing subpoenas, preparing investigative reports, and taking other actions leading to the prosecution of a case. The Contract does not specifically address the issue of determining legal sufficiency. The typical procedures of the FEMC in performing its investigatory functions are initiated when the FEMC receives a complaint by various means, including telephone, e-mail, or submission of a written complaint. Written complaints are normally directed to the FEMC chief prosecutor, who assigns them to an investigator for initial review. If the complaint is verbal, the investigator fielding the call will ask the complainant to file a written complaint. If a complaint is unaccompanied by information to substantiate the claims, the investigator typically requests supporting documentation, which may be a set of engineering plans, a report, or similar evidence of the facts underlying the complaint. In a procedure implemented by the FEMC in 2012, after receipt of the complaint and supporting documentation, the investigator forwards the complaint to an engineering expert retained by FEMC for a pre-review. The expert prepares a preliminary report which is then considered in the determination of legal sufficiency. Prior to implementation of the 2012 pre- review procedure, the determination of legal sufficiency was made without the benefit of a pre-review report in the manner otherwise described below. After receipt of the complaint, the supporting documentation, and, since 2012, the pre-review report, the investigator presents the complaint to the FEMC chief prosecutor. If the chief prosecutor determines that the complaint is not legally sufficient, the investigator is instructed to draft a memorandum for the chief prosecutor to review, which is in turn submitted to the FBPE Executive Director for signature. If the chief prosecutor determines that the complaint is legally sufficient, he or she verbally authorizes the investigator to place the engineer on notice of the investigation. At that point, the complaint is investigated using the investigative tools available to FEMC as set forth in the Contract. If sufficient evidence that a violation has occurred is found, the investigation culminates in a recommendation to the FBPE probable cause panel for a decision as to whether the panel believes there to be probable cause to proceed with disciplinary action. The decision to proceed with a disciplinary proceeding requiring a point of entry to challenge the action is entirely that of the FBPE probable cause panel. Probationary Project Review On November 4, 2009, FBPE entered a disciplinary final order regarding Petitioner that incorporated a stipulated settlement agreement, and imposed sanctions on Petitioner, including probation. By his entry of the settlement stipulation, Petitioner agreed to a “project review” at six and eighteen-month intervals. The project review consisted of the submission by Petitioner of a list of all completed projects. That list was provided to an engineering expert, who then selected two of the projects for a more comprehensive review. The steps to be performed by Petitioner and the FBPE are generally described in Project Review Process Guidelines that were provided to Petitioner by FBPE as an attachment to the notice of the two projects selected for comprehensive review. As a result of the project review, the two projects were determined to violate engineering standards, which resulted in the FEMC making a recommendation of probable cause to the FBPE probable cause panel. The probable cause panel found probable cause, leading to the issuance of an Administrative Complaint against Petitioner. Petitioner introduced evidence of one other case in which a project review was required as a condition of probation. In that case, an administrative law judge, after having determined that the professional engineer committed violations of section 471.033 and Florida Administrative Code Rule 61G15- 19.001, recommended imposition of “probation for two years with appropriate conditions for this case.” The Final Order, entered on March 12, 2008, imposed the recommended probation “with a plans review at 6 months and 18 months from the date of this Order.” The basis for the imposition of that sanction was not explained. There was no evidence introduced at the final hearing as to any other specific case in which a project review was required, other than the case involving Petitioner. The 2012 FEMC Annual Report, which is a business record of the FEMC, indicated that between July 1, 2011 and June 30, 2012, the FEMC was involved in the investigation and/or prosecution of 32 cases in which Administrative Complaints were filed against engineers. Disciplinary sanctions imposed against engineers during that one-year period included, among others, twenty-five reprimands, six license suspensions, eight probations, seven license restrictions, two voluntary license relinquishments, and four license revocations. Also included among the sanctions imposed during that period were three project reviews. The sanction of project review is one that is, statistically, used sparingly by the FBPE. There was no evidence introduced to establish the criteria, if any, for the imposition of a project review as a condition of probation, or to demonstrate that it was generally applied in any specific circumstances.
The Issue Whether Petitioner, M.B. Doral, is entitled to attorneys’ fees and costs pursuant to section 120.595(4), Florida Statutes (2019); and, if so, the amount.
Findings Of Fact On December 21, 2018, Petitioner MB Doral filed a Petition Challenging Validity of Existing Rule 61A-4.020 and Determination Regarding Unadopted Rule, in DOAH Case Number 18-6768RX. On January 25, 2019, the undersigned entered an Order Granting Respondent’s Motion to Bifurcate and Stay Proceedings, which stayed MB Doral’s unadopted rule challenge pending the proposed rulemaking that would promulgate ABT Form 6017. On October 16, 2019, amendments to rule 61A-4.020 became effective, which promulgated ABT Form 6017. On November 6, 2019, the undersigned entered an Order Dismissing Unadopted Rule Challenge and Retaining Jurisdiction, which dismissed MB Doral’s remaining unadopted rule challenge and retained jurisdiction to consider a request for attorneys’ fees and costs, pursuant to section 120.595(4)(b). On December 3, 2019, MB Doral filed a Motion for Attorneys’ Fees and Costs (Motion), seeking an award of attorneys’ fees and costs incurred in the unadopted rule challenge pursuant to section 120.595(4)(b). The Motion alleges that MB Doral advised the Department, in writing on at least seven occasions prior to filing the rule challenge petition, and beginning on May 19, 2015, that the Department’s failure to adopt ABT Form 6017 constituted an unadopted rule. The Motion also alleges that the Department did not file a notice of rulemaking until January 28, 2019. The Motion further alleges that the Department has never alleged that the federal government required ABT Form 6017 to implement or retain a delegated or approved program or to meet a condition to receipt of federal funds. On December 10, 2019, the Department filed its Response in Opposition to Petitioner’s Motion for an Order Awarding Attorneys’ Fees and Costs. On February 11, 2020, the Department filed a Notice of Filing Joint Stipulation for Attorneys’ Fees and Costs, which included the Joint Stipulation for Attorneys’ Fees and Costs. The Joint Stipulation states that the Department agrees to the entry of a final order assessing the sum of $7,500.00 for attorneys’ fees and costs in the unadopted rule challenge, which the undersigned bifurcated from the existing rule challenge in DOAH Case No. 18-6768RX, which is currently pending before the First District Court of Appeal in Case Number 1D19-0820. The Joint Stipulation further states that the parties agree that this Final Order should direct the Department to seek immediate approval for payment within 30 days of this Final Order, and that the undersigned retains jurisdiction to enforce the terms of this Final Order.
The Issue Whether respondent's rules of conduct contained in Department of Law Enforcement Directive #200.08 constitute an invalid exercise of delegated legislative authority on the ground that they were not promulgated in accordance with Chapter 120, Florida Statutes (1979)
Findings Of Fact Petitioner Maggie L. Allen was a Career Service employee (with permanent status) of the Department of Law Enforcement until she was terminated from her position or about June 15, 1981. She has appealed her termination to the Florida Career Service Commission. (Prehearing Stipulation, p. 2; Respondent's Admissions.) The reason given for her termination was, in part, her alleged violation of Department Directive #200.08(5), Rules of Conduct ("Directive") . More specifically, the Department charged her with violating specific rules of conduct contained in the Directive: Rule 10, entitled, "Insubordination"; Rule 22, entitled, "Departmental Reports"; Rule 23, entitled, "Performance of Lawful Duty"; and Rule 34, entitled, "Truthfulness." (Prehearing Stipulation, p. 2; Respondent's Admissions; Exhibit No. 3.) The Directive, effective November 27, 1978, is an official statement of Department policy and is generally applicable to all employees of the Department. Its stated purpose is "to provide each Departmental employee with clear examples of acts which would violate the above personnel rules or statutes." (Emphasis supplied.) (Exhibit No. 1.) Essentially, the Directive defines acceptable conduct for Department employees by specifically enumerating 35 standards of conduct. By its terms, breach of one or more of those standards constitutes employee misconduct and may result in disciplinary action against an employee ranging from oral reprimand to discharge. However, these standards are not intended to be an exclusive, or exhaustive listing of impermissible conduct. (Respondent's Admissions; Exhibit No. 1.) The Directive is part of the Department's Duty Manual, a volume containing directives on personnel, administrative, training, and fiscal matters as well as the operations of the Department's divisions. The stated purpose of the Duty Manual is to "inform and guide . . . [Department] officers and employees in the performance of their official duties." (Exhibit No. 2.) The Duty Manual recites that it is "promulgated" pursuant to Chapter 120, Florida Statutes, that copies are disseminated to all employees and that employees must obey, comply with, and follow the Manual's directives. The Manual has been incorporated, by reference, in Department Rule 11-1.12, Florida Administrative Code. All formalities concerning publication of Rule 11-1.12 were complied with prior to its publication in the Florida Administrative Code. (Prehearing Stipulation; Exhibit No. 2.) Department Rule 11-1.12, incorporating--by reference--the Duty Manual, was adopted on March 20, 1979, for the purpose of validating those portions (unspecified) of the Manual which constituted "rules" under the APA. At the time, the Department anticipated that adopting the Manual, by rule, would "lead to greater efficiency." (Exhibit No. 2.)
Findings Of Fact The Parties Petitioner, Florida League of Cities, Inc. ("League"), 201 West Park Avenue, Post Office Box 1757, Tallahassee, Florida, 32302, is a wholly-owned instrumentality of its member cities, which include more than 380 incorporated municipalities in the State of Florida. The League's bylaws require it to work for the effective administration and general improvement of municipal government in Florida. It represents its membership on statewide issues affecting municipal government. The Florida Administration Commission ("Commission"), the Respondent in this proceedings, is created by Section 14.202, Florida Statutes. 1/ It is composed of the Governor and the Cabinet, and is part of the Executive Office of the Governor. The Governor is chairman of the Commission. The Commission is responsible for insuring compliance by city and county governments with the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes, ("the Act"). Sections 163.3167(2) and 163.3184(11), Florida Statutes, grant it the authority to impose sanctions on a county or municipality if its local comprehensive plan is not in compliance with the Act or has been submitted more than 90 days after its scheduled due date. Imposition of sanctions requires the affirmative vote of the Governor and any three other members of the Commission. Section 163.3164(1), Florida Statutes. Petitioner/Intervenor, Town of Pembroke Park ("Town"), is a duly incorporated municipality in Broward County, Florida which has approximately 6,500 residents. About 80 percent of its housing units are mobile homes. The Town prepared and submitted its proposed local comprehensive plan to the Department of Community Affairs out of time; according to Rule 9J-12.006(4), Florida Administrative Code, its plan was due on October 1, 1988. The Town therefore was subject to sanctions under the Act, as implemented by the "Non- Submission Policy" adopted by the Commission on October 24, 1989. The sanctions imposed on the Town by the Commission have been stayed by an appeal from the Commission's sanctions order. Petitioner/Intervenor, Village of Virginia Gardens ("Village"), Florida, is a duly incorporated municipality in Dade County, Florida. The Village prepared and submitted its proposed local comprehensive plan to the Department of Community Affairs out of time; according to Rule 9J-12.006(1), Florida Administrative Code, its plan was due on July 1, 1988. The Village submitted its plan on February 6, 1989. It was therefore subject to sanctions under the Act, as implemented by the "Non- Submission Policy" adopted by the Administration Commission on October 24, 1989. The sanctions imposed on the Village by the Administration Commission have been stayed by an appeal from the Commission's sanctions order. Respondent/Intervenor, Department of Community Affairs ("Department"), is a Department of the State of Florida headquartered in Tallahassee, Florida. It administers the Act, and has the responsibility under Chapter 28-39, Florida Administrative Code, to make recommendations to the Commission about local comprehensive plans, including whether they have been submitted late or fail to comply with the Act. The Act and its Sanctions Counties and cities are required under Section 163.3167(1) of the Act: To plan for their future development and growth. To adopt and amend comprehensive plans, or elements or portions thereof, to guide their future development and growth. To implement adopted or amended comprehensive plans by the adoption of appropriate land development regulations or elements thereof; and To establish, support and maintain administrative instruments and procedures to carry out the provisions and purposes of the Act. Each local government is required to prepare a local comprehensive plan "of the type and in the manner set out in" the Act. Section 163.3167(2), Florida Statutes. A "complete proposed comprehensive plan" is required to be submitted to the Department by the dates specified in the Department's rules, which are found in Chapter 9J-12, Florida Administrative Code. Section 163.3167(2), Florida Statutes. Any local government that fails to meet the schedule set for submission of its local comprehensive plan by more than ninety days, is subject to imposition of the sanctions described in Section 163.3184(11)(a) by the Commission, as is a local government whose comprehensive plan fails to comply with the Act. Those sanctions include direct[ing] state agencies not to provide funds to increase the capacity of roads, bridges, or water and sewer systems within the boundaries of those local governmental entities. . .specify[ing] that the local government shall not be eligible for grants administered under the following programs: The Florida Small Cities Community Development Block Grant Program, as authorized by Sections 290.0401 - 290.049. The Florida Recreation Development Assistance Program, as authorized by Chapter 375. Revenue sharing pursuant to Sections 206.60, 210.20, and 218.61 and Part I of Chapter 212, to the extent not pledged to pay back bonds. Section 16:3.3184(11)(a), Florida Statutes. The September 26, 1989, meeting of the Commission was the first time a request for sanctions for failure to submit timely plans came before the Commission for action. Before that time the Commission had adopted no rule or policy specifying which, if any, sanctions would be imposed for non-submission, or for submission of a plan not in compliance with the Act. The Commission took up the three cases of late submissions together. They involved the Town, the Village, and Indian Creek Village (which is not a party to this proceeding). They were agenda items 3, 4, and 5 for that meeting. Staff had recommended that the Commission withhold $191,012, or 44 percent of 1989-90 revenue sharing distributions due to the Town, because its plan was submitted on March 10, 1989 -- 5.3 months late (see the additional findings made at Finding 54, below). Staff also recommended that the Commission withhold $92,344, or 60 percent of the Village's 1989-90 revenue sharing distributions, because its plan was submitted on February 6, 1989 -- 7.2 months late. Rather than impose sanctions, the Commission requested staff to recommend a policy for sanctions. After a discussion, Commissioner of Education Castor stated, "I'll make a motion, Governor, that we ask staff to come back with a policy." The motion was seconded by Treasurer Gallagher and passed unanimously. Draft policies were developed by staff. The Policies at Issue The Administration Commission adopted a policy on October 24, 1989, describing the sanctions that would be imposed for late submission of local comprehensive plans (referred to as the "Non-Submission Policy"). It adopted a second policy on the sanctions to be imposed on local governments whose local comprehensive plans have been found not to be in compliance with the Act in an administrative hearing on the compliance issue (referred to as the "Non- Compliance Policy"). These matters were Commission agenda item number 6. Both policies, when referred to jointly, are the "Sanctions Policies". (League of Cities' Exhibit number 3). These policies state: POLICY FOR NONSUBMISSION CASES. Withhold 1/365 of the annual state/local revenue sharing program distribution for each day a local government fails to submit its proposed plan. The sanction would be calculated from the first day after the due date established by DCA Rule 9J-12, Florida Administrative Code, to the date the proposed local plan is actually submitted. Procedure: Under the Administration Commission Rule (Chapter 28-39, Florida Administrative Code), DCA notifies the Administration Commission within 45 days of a local government's failure to submit its plan by the due date. Within 30 days, a meeting is held by Commission staff with Department of Community Affairs and Regional Planning Council staff, and representatives of the local government. Fifteen days later DCA provides a recommendation to the Commission regarding sanctions. The Administration Commission may act to impose sanctions described above no sooner than 90 days after the local plan is due, but the sanctions are calculated from the due date established by DCA Rule 9J-12, Florida Administrative Code. EXCEPTION FOR LOCAL GOVERNMENTS THAT DID NOT HAVE ADVANCE NOTICE OF ADMINISTRATION COMMISSION POLICY. Upon the DCA's issuance of the Notice of Intent to find the plans IN COMPLIANCE or the Administration Commission's final determination that the plan is IN COMPLIANCE if a challenge to the DCA's Notice is filed with the Division of Administrative Hearings (DOAH) ("final agency action" in either case), DOR would return 90 days' withheld revenue. Procedure: The Administration Commission would authorize the automatic return of revenue upon DCA's notification to the Secretary of the Commission and the Department of Revenue (DOR) that a plan is IN COMPLIANCE. If the plans are found NOT IN COMPLIANCE by the Administration Commission, no withheld revenue would be returned and the Administration Commission would impose sanctions as described in 2. * * * * POLICY FOR NONCOMPLIANCE CAFES. A local plan will come under the jurisdiction of the Administration Commission if it is found NOT IN COMPLIANCE after a Division of Administrative Hearings (DOAH) hearing. If the DCA issues a Notice of Intent to find the plan NOT IN COMPLIANCE and the Commission ultimately determines that the plan is NOT IN COMPLIANCE, the Commission policy would be to withhold 1/365 of the annual state/local revenue sharing distribution for every day that the plan is out of compliance beginning with the date DCA issued its Notice of Intent to find the plan NOT IN COMPLIANCE until the date the local government has amended its plan to incorporate the remedial measures specified by the Administration Commission's Final Order and the DCA issues its Notice of Intent to find the amended plan IN COMPLIANCE. If the DCA issues its Notice of Intent to find a plan IN COMPLIANCE but the Commission ultimately determines that the plan is NOT IN COMPLIANCE, the Commission would specify in its final order remedial measures which must be incorporated into the plan by a specific date, and if the remedial measures were not incorporated by the specified date, the Commission would withhold 1/365 of the annual state/local revenue sharing distribution for every day that the plan is out of compliance beginning with the date the Commission entered its final order until the date the plan is amended to incorporate the remedial measures and the DCA issues its Notice of Intent to find the plan IN COMPLIANCE. Additional sanctions would also be considered by the Commission based upon the record in each case. The additional sanctions available under Section 163.3184(11), Florida Statutes, include ineligibility for all state expenditures to increase capacity of roads, bridges, and water and sewer systems within the local government's jurisdiction. (emphasis original) The additional factors the Commission may apply to mitigate or enhance the penalty under the final paragraph of the sanctions policy await case-by-case development. At the October 24, 1989, meeting, Treasurer Gallagher moved as follows: "I think this policy recommendation is a good starting point to get that compliance, and I still think we need to review each case individually, so we can get a feel how this process operates, but I think this message in regards to how serious the Cabinet is in regards to compliance needs to be sent. Therefore I will move the policy." Secretary of State Smith seconded the motion, which carried unanimously. (League Exhibit 3 at 73, 88). The Gallagher motion not only adopted the policies, but re-affirmed the Commission's intention to engage in a case-by-case analysis of what sanctions are appropriate in each case. At the very least, the Sanction Policies will be utilized by the Staff (both the Department of Community Affairs and the Office of Planning and Budgeting, Executive Office of the Governor) as a starting point in determining what sanctions should be applied to a local government which submits an untimely comprehensive plan or a plan found to be not in compliance with the Act. Prior to the adoption of the Sanction Policies, the Commission did not: Provide notice in the manner required by Section 120.54, Florida Statutes, of its intent to adopt those policies. Provide or prepare a short and plain explanation of the purpose and effect of those policies. Prepare an economic impact statement concerning those policies. Provide prior written notice to any municipality or county of the adoption of those policies. Provide notice in the Florida Administrative Weekly of the proposed adoption of those policies. Follow any of the procedures outlined in Section 120.54, Florida Statutes. Section 163.3167(2), Florida Statutes, requires all of the League's members to submit a complete proposed comprehensive plan under the schedule adopted in Rule 9J-12.006, Florida Administrative Code. The Administration Commission could impose sanctions on any League member who submits its plan more than 90 days late or submits a plan which fails to comply with the Act. On October 24, 1989, when the "Non-Compliance Policy" was adopted, there were no cases seeking the imposition of sanctions against a local government whose timely local comprehensive plan had been found not to be in compliance with the Act, in an administrative hearing on the compliance issue. There were pending cases arising from the failure of cities such as the Town and the Village to submit timely plans. On October 24, 1989, after the adoption of the "Non-Submission Policy," the Commission applied sanctions based on the policy, without variation, to the Town, the Village, and to Indian Creek Village. These actions were agenda items number 7, 8, and 9. The policies adopted on October 24, 1989, are identified as general policies in the Commission's agenda for October 24, 1989, and in the minutes of the Commission for that meeting. No further guidelines have been established by the Commission itself, by the Department of Community Affairs or by the Office of Planning and Budgeting, Executive Office of the Governor, describing the conditions under which the Commission will deviate from the Sanctions Policies when considering an individual case. The Sanctions Policies were adopted, in part, to send a message to municipalities and counties about what would happen if they failed to submit plans or their plans are found not to be in compliance with the Act. The Department of Community Affairs has communicated the Sanctions Policies to all the municipalities and counties by a technical memorandum, which was distributed to all municipalities and-counties. (League Exhibit number 11). That memorandum states that these policies will be applied to local governments which submitted untimely plans, or plans determined not to comply with the Act. No notice or guidance is contained in these communications about the criteria the Commission might use to deviate from the policies. In December, 1989, the Department sent a letter to all municipalities and counties that were late in submitting their local comprehensive plans, advising them of the sanctions policies. Section 163.3184(11)(a)3., Florida Statutes, authorizes the Commission to order that the local government be ineligible to receive revenue sharing funds. Prior to October 24, 1989, the Administration Commission had adopted no policy or rule announcing its interpretation of when sanctions for late submission or non- compliance would begin to run. Under the "Non-Submission Policy" sanctions begin to run from the first day after the due date established by Rule 9J-12, Florida Administrative Code. No sanctions are imposed, however, if the plan is fewer than 90 days late. Under the "Non-Compliance Policy", fines begin to run from the date the Department issues a notice of intent to find the plan not in compliance with the Act. The Effect of the Policies Generally For cities, the term "state/local revenue sharing" as used in the Sanctions Policies includes: 1/2-cent sales tax 11-cent cigarette tax Gas tax imposed pursuant to Section 206.605, Florida Statutes. 2-cent cigarette tax The single occasion the Non-Submission Policy has been applied was on October 24, 1989, and the only counties or cities penalized have been the Town, the Village, and Indian Creek Village. As of the date of final hearing in this case, the "Non-Compliance Policy" had never been applied to any local government. Estimated statewide state/local municipal revenue sharing distributions to all municipalities within the state for the 1989-1990 fiscal year are $477,107,879. (A breakdown for individual municipalities is found in League Exhibits number 12, Local Government Financial Handbook at 14-29, tables a, b, c, and 105- 111). The actual amount of state/local revenue distributed statewide for the 1988-1989 fiscal year was $471,641,735, as reported by Department of Revenue to the Comptroller for publication in the Florida Comprehensive Annual Financial Report. The breakout for individual cities is found in League Exhibit number 14. For the state as a whole, municipal revenue sharing constitutes between 13 percent and 15 percent of municipal governmental revenues. For the state as a whole, 34 percent of municipal governmental expenditures are used to fund police and fire protection. Section 163.3184(11) authorizes sanctions for failure to submit a local comprehensive clan or for failure to submit a plan which complies with the Act, and permits the revenues in question to be cut off in the middle of a fiscal year, when a municipality is unable to raise ad valorem taxes. There are a limited number of other sources available to a municipality which may be used as general governmental revenue. Litigation over whether a local comprehensive plan complies with the Act can take a significant amount of time. For example, a notice of intent to find Charlotte County's local comprehensive plan not in compliance was issued by the Department on February 9, 1989. The case was heard, a Recommended Order issued, and the matter was set to go before the Administration Commission on January 24, 1990. The Hearing Officer found the plan not to be in compliance with the Act. The Department has recommended that no monetary sanctions be imposed can the county, but that the county take a number of specific actions to amend the comprehensive plan. As another example, administrative litigation over the comprehensive plan submitted by City of Cocoa took approximately 10 months from the time a notice of compliance was issued by the Department, until it was determined that the plan actually was not in compliance, and the Recommended Order came before the Administration Commission for sanctions. It is reasonable to assume that from the time that the Department issues a notice of intent to find a comprehensive plan not in compliance with the Act until the time the plan comes before the Administration Commission will be at least six months, and perhaps longer. The potential loss of revenue sharing for a period of six or more months would have a substantial effect on a municipality's budget. The potential loss of revenue for a period of six or more months is a substantial disincentive to a municipality's willingness to pursue a hearing and challenge the Department's determination when the Department issues a notice finding a local comprehensive plan not in compliance with the Act. Pembroke Park's Compliance Efforts In 1987, the Town initiated its efforts to prepare a local comprehensive plan pursuant to the Act to guide the future development of the Town. 2/ The Town is approximately 97 percent built out and contains approximately 30 acres of vacant land available for development. The Town initially contracted with the South Florida Regional Planning Council ("the Council") to develop Phase 1 of a plan for the Town. The Council forwarded the first part of a revised comprehensive plan in February, 1988, to the Department. The Town's Mayor and some members of the Pembroke Park Town Commission had questions about parts of that plan, and believed, at the time, that it would be more efficient to have an in-house person prepare the rest of the Town's plan. In March 1988, the Pembroke Park Town Commission formally decided that the Town should not use the Council to complete preparation of its local comprehensive plan. Milan Knor, a professional engineer who served as the Town's Director of Operations, was awarded a contract to prepare the remainder of the plan. Under the provisions of Rule 9J-12.006(4), Florida Administration Code, the Town's proposed comprehensive plan was due to be submitted to the Department on or about October 1, 1988. Mr. Knor did not forward a proposed comprehensive plan to the Department until December 28, 1988. The Department received this document on or about January 9, 1989. On January 17, 1989, the Department sent a letter to the Mayor of the Town acknowledging receipt of the Town's proposed comprehensive plan, and noting that the plan documentation was missing certain plan elements. This letter also stated that a complete plan was to be submitted by the Town to the Department by January 31, 1989. That same day, the Department filed a Notice of Non-submission of Proposed Comprehensive Plan with the Commission, because the Town had failed to comply with the submission schedule for its proposed comprehensive plan. On January 23, 1989, the Commission sent a letter to the Mayor of the Town acknowledging a) receipt of the Department's notice that the Town had failed to meet the schedule set for submission of its local comprehensive plan by more than 90 days, and b) that the Department had requested the Commission to impose sanctions on the Town. That letter from the Commission required the Town to submit an explanation of why it did not submit a timely plan. It also informed the Town that within 15 days of receipt of the explanation, a meeting would be held which would operate as an informal proceeding under Section 120.57(2), Florida Statutes, unless the Town's explanation showed that the plan was not late. A recommendation on sanctions would be made to the Commission within 20 days following the meeting. On or about January 27, 1989, the Town forwarded a revised plan, including the various elements requested by the Department on January 17, 1989. On or about February 8, 1989, the Department notified the Town that the plan was substantially complete, but that four additional pieces of information were needed, as well as a resolution from the Town Commission formally transmitting the plan to the Department. On March 9, 1989, the Town submitted the additional information requested to the Department along with a resolution formally transmitting the material. The Department regards March 9, 1989, as the date the Town submitted its complete plan. In June of 1989, the Department notified the Town that it had completed its review of the proposed comprehensive plan and enclosed the Department's objections, recommendations, and comments ("ORC") concerning the Town's comprehensive plan. On July 14, 1989, Beth Lines, Policy Coordinator for the Office of Planning and Budgeting and member of the Commission staff, sent a letter to the Mayor of the Town confirming July 19, 1989, as the date the meeting would be held to discuss the issues raised in the Notice of Non-Submission filed by the Department. This letter did not repeat the notice given in the letter of January 23, 1989, that this meeting would constitute a Section 120.57(2), Florida Statute, informal hearing or that the Town had to request an evidentiary hearing to consider disputed factual issues at that time, or forever waive its right to do so in the future. The Town submitted a chronology to the Department on July 27, 1989, containing the Town's explanation of why its plan was late. On August 3, 1989, Thomas Pelham, Secretary of the Department, recommended that the Commission impose sanctions on the Town for failing to submit its proposed comprehensive plan within 90 days of the scheduled due date. Secretary Pelham's recommendation considered both the written explanation the Town had submitted and comments which had been made during the July 19, 1989, meeting with Town officials, but he found no good reason for the Town's failure to submit a timely plan. Adoption of Rule 28-39.006 On August 7, 1989, Rule 28-39.006, Florida Administrative Code, became effective. The new rule set out the procedure that would be followed whenever a local government fails to meet its scheduled deadline for submission of its comprehensive plan. Before that time, no rule had been promulgated describing the procedure the Commission would follow in dealing with a local government's failure to meet the deadlines for submission of its comprehensive plan. Further Administrative Steps Against the Town In September, 1989, Patricia Woodworth, Secretary/Clerk to the Commission, submitted a proposed final order to the Commission containing a finding that the Town's proposed comprehensive plan was not timely submitted and requesting the Commission to withhold state/local revenue-sharing funds from the Town. On September 18, 1989, the Town submitted to the Department its response to the Department's objections, recommendations and comments on the Town's comprehensive plan. (See Finding 46, above). In that response, the Town expressed its desire for continued Department participation since Town's goal was to have its comprehensive plan deemed to be "in compliance" with Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code. On September 19, 1989, in response to the Commission's proposed final order (see Finding 51, above), Frank Matthews, acting as counsel for the Town, submitted to the Commission staff a different proposed final order regarding the Town's failure to timely submit its proposed local government comprehensive plan. On September 26, 1989, the Commission considered, but did not adopt, Woodworth's proposed final order. Representatives of the Town appeared at that meeting and objected to the proposed order and the sanctions it recommended. The Commission heard argument on the sanctions issue from the Town's attorney, Mr. Matthews, a Town Commissioner, a representative from the Florida Audubon Society and from Secretary Pelham. The Town argued that its plan was submitted only 9 days after what it characterized as the "90-day statutory grace period" granted to local governments in Section 163.3167(2), and explained why it believed monetary sanctions were inappropriate; the representative of the Audubon Society argued that the statute gave no grace period to local governments whose plans were more than 90 days late; Secretary Pelham explained why he believed monetary sanctions were warranted. The Commission deferred action and instead directed its staff to prepare a policy for the Commission to apply in cases where local governments fail to timely submit proposed comprehensive plans. (See Finding 8, above). On September 29, 1989, Frank Matthews, acting as counsel for the Town, sent a letter to Ms. Woodworth, Secretary/Clerk to the Commission, asserting that the Town had not been provided a clear point of entry into the administrative process to contest any proposed final agency action which could adversely affect the Town's substantial interests. The letter recited the Town's understanding that any final agency action occurring in the future would be properly noticed, and that the Town would have 14 days to avail itself of administrative remedies under to Section 120.57, Florida Statutes. On that same date, Mr. Matthews sent a letter to Beth Lines, a member of the Commission staff, asking that the Town be notified of any working groups or meetings held to develop or discuss the sanctions policy, so the Town could participate. Both of these letters were never answered. On October 10, 1989, the Mayor of the Town sent a letter to Paul Bradshaw of the Department stating that the Department was not using the correct mailing address for all correspondence to the Mayor's office. Consequently, the Mayor expressed concern that certain past correspondence, such as the October 7, 1988, letter from the Department, had never reached his office. The letters were properly addressed; the letters were delivered to the Town. The mayor's implication to the contrary is rejected by the Hearing Officer. On October 18, 1989, the Town finally adopted its local comprehensive plan, including land development regulations, and hand-delivered these materials to the Department. On October 24, 1989, when the Commission adopted the sanctions policy for late submissions of comprehensive plans, it heard once again from interested parties before deciding whether to accept the recommendations of the Department and Commission staff on a sanctions policy. A representative of the League of Cities spoke, along with counsel for the Town and a representative of the Department. On October 24, 1989, approximately one hour after adopting the Non- Submission and Non-Compliance sanctions policies, the Commission considered for the second time the Department's recommendation on imposition of sanctions on the Town. The Commission applied its Non-Submission Policy, and ordered that $190,299 in state revenue sharing funds withheld, an amount equal to 160/365 of those funds. The 160 numerator represents the number of days the Commission found the Town was late in submitting its proposed comprehensive plan. The Town was provided the opportunity to recover 90/365 of the amount withheld (approximately $107,043) if and when the Department found the plan adopted by the Town (see Finding 57) to be in compliance with the Act and Rule 9J-5, Florida Administrative Code. On November 6, 1989, the Town of Pembroke Park received a copy of the executed Final Order, No. AC89-3 dated November 1, 1989. This order embodies the sanctions the Commission imposed on October 24, 1989. The Rule Challenge On November 14, 1989, The Florida League of Cities, Inc., filed a petition pursuant to Section 120.56, Florida Statutes, requesting a determination of the validity of both Rule 28-39.006(3), Florida Administrative Code, and the Sanctions Policies adopted by the Commission on October 24, 1989. This petition was filed with the Division of Administrative Hearings ("DOAH"). On November 17, 1989, the Town filed its Motion to Intervene, and requested party status in that rule challenge proceeding. Additionally, the Town moved to consolidate with the rule challenge a separate petition it filed with the Commission on November 14, 1989, for a Section 120.57(1), Florida Statutes, administrative hearing, challenging the sanctions which the Commission had imposed. On November 30, 1989, the Hearing Officer granted the Town's motion to intervene, but declined to consolidate the rule challenge with the Town's petition for a Section 120.57(1), Florida Statutes, administrative hearing. The Commission had not yet determined whether the petition for a formal hearing would be granted; as a result it had not referred the matter to DOAH. Consequently, there was then no other proceeding pending at DOAH to be consolidated with the rule challenge. Similarly, on December 1, 1989, the Village of Virginia Gardens filed its motion to intervene in the rule challenge proceeding. The motion was granted on December 5, 1989. Finally, on December 4, 1989, the Town received a copy of the Commission's proposed order denying its Petition for Formal Administrative Hearing on the sanctions which had been imposed. On December 5, 1989, the Town filed a response to that proposed order, and argued that the Commission never gave it a clear point of entry into the administrative process. The Commission disagreed, and on December 8, 1989, denied the Town's request for a formal hearing. The Commission found the Town had a clear point of entry based on its January 23, 1989, letter to the Town (see Finding 43, above), and that the Town waived its right to a formal hearing by participating in the proceedings before the Commission on September 26 and October 24, 1989, without requesting a formal hearing. On December 6, 1989, the Town was notified that its adopted local government comprehensive plan complied with the requirements of Chapter 163, Florida Statutes. As a result of the Department's finding of compliance, the state monies to be withheld from the Town pursuant to the Commission's order were reduced to $83,255 (see Finding 59, above). On December 8, 1989, the Commission entered its final order denying the Town's request for a formal hearing. Consequently, on January 4, 1990, the Town filed a Notice of Appeal with the District Court of Appeal, First District, appealing the denial of its petition for a Section 120.57(1) hearing.
