The Issue Whether Proposed Rule 69O-186.003(1)(c) should be invalidated on the grounds that it is an invalid delegation of legislative authority as defined in Section 120.52(8), Florida Statutes (2005).1
Findings Of Fact Based on the record of this proceeding, the following findings of fact are made: Background The Commission was created by statute effective January 7, 2003. It is composed of the Governor, the Attorney General, the Chief Financial Officer, and the Commissioner of Agriculture. The Commission members "serve as agency head of the Financial Services Commission." § 20.121(3), Fla. Stat. The OIR is an "office" of the Commission and is "responsible for all activities concerning insurers and other risk bearing entities . . . ." The OIR is headed by a director, who is also known as the Commissioner of Insurance Regulation. § 20.121(3)(a)1., Fla. Stat. Pertinent to this proceeding, the legislature delineated the powers to be exercised by the Commission and the OIR, respectively, in Section 20.121(3), Florida Statutes, as follows: (c) Powers.--Commission members shall serve as the agency head for purposes of rulemaking under ss. 120.536-120.565 by the commission and all subunits of the commission. Each director is agency head for purposes of final agency action under chapter 120 for all areas within the regulatory authority delegated to the director's office.[3] Stipulated Facts (verbatim) The following stipulated facts are adopted as findings of fact for the purpose of this Final Order: On February 25, 2003, the Commission met, considered, and approved an agenda item involving the rulemaking process to be used by the Commission, the OIR, and the Office of Financial Regulation. The rulemaking procedure that is under consideration in this case involves the Commission's delegation to the OIR of the authority to engage in certain rulemaking activities. A true and correct copy of that agenda item, as approved by the Commission, and the relevant pages of the transcript of that meeting, are attached hereto as "Appendix A." On May 13, 2003, the Commission met and without objection approved the minutes of the Commission's February 25, 2003, meeting. The rulemaking process and delegation set forth in Appendix A permit the OIR to initiate rulemaking and to publish a proposed rule without the prior approval of the Commission, but require the Commission to approve the proposed rule prior to its filing for final adoption pursuant to Section 120.54(3)(e), Florida Statutes. Since its adoption in 2003, the Commission and the OIR have routinely employed the rulemaking process described in Appendix A and used this delegation of rulemaking authority in promulgating rules regulating the insurance industry. The Commission and the OIR employed the rulemaking process described in Appendix A and used this delegation of rulemaking authority in promulgating the proposed JLP rule that is the subject of the pending rule challenge. In May 2005, the OIR issued an order approving the JLP forms that had previously been submitted by First American Title Insurance Company. Shortly thereafter, on June 3, 2005, the OIR published a proposed rule in the Florida Administrative Weekly that would set an industry-wide premium rate for the newly approved JLP forms. Pursuant to the OIR's notice of proposed rulemaking, a public hearing was held on July 13, 2005, at which interested parties had the opportunity to speak and address the provisions of the proposed rule. The OIR's counsel specifically stated on the record during the hearing that the rulemaking process was ongoing and that the "final" hearing for the proposed rule would be subsequently noticed in the Florida Administrative Weekly and held before the Governor and Cabinet sitting as the Commission. On or about July 25, 2005, the Fund and the Association filed a petition with the Division of Administrative Hearings challenging the validity of the proposed JLP rule. Consistent with the Commission's routine practice, a notice of the "final" hearing before the Commission on the proposed JLP rule will be published in Part VI of the Florida Administrative Weekly ("Notices of Meetings, Workshops and Public Hearings"), and a copy of the notice will be mailed to all persons who notified the OIR of their interest in the proposed JLP rule, including the Fund and the Association. Statutory rulemaking procedures A "rule" is defined in Section 120.52(15), Florida Statutes, as "each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule." Section 120.54, Florida Statutes, sets forth the rulemaking procedures that are to be followed by all Florida agencies, including the Commission, see § 120.52(1)(b)4., Fla. Stat., and these procedures constitute the exclusive process for the promulgation and adoption of rules in Florida. See § 120.54(1)(a) and (3)(c)2., Fla. Stat. The rulemaking procedures mandated in Section 120.54, Florida Statutes, are detailed and comprehensive and contain two primary requirements: public notice at each step of the rule-development and rule-adoption process and an opportunity, throughout the rulemaking process, for the public and substantially affected persons to be heard with respect to any rule an agency proposes to adopt. See § 120.54(2) and (3), Fla. Stat. Generally, the first step in the rulemaking process is "rule development," as described in Section 120.54(2), Florida Statutes. The agency is required to give notice of its intent to develop proposed rules in the FAW "before providing notice of a proposed rule as required by paragraph (3)(a)," and the notice must "indicate the subject area to be addressed by rule development, provide a short, plain explanation of the purpose and effect of the proposed rule, cite the specific legal authority for the proposed rule, and include the preliminary text of the proposed rules, if available " § 120.54(2)(a), Fla. Stat. The agency may also hold public workshops during the rule development process, and it must hold a public workshop "if requested in writing by any affected person, unless the agency head explains in writing why a workshop is unnecessary." Id. Once the agency has developed a proposed rule, it must follow the adoption procedures set forth in Section 120.54(3), Florida Statutes. Foremost among these procedures is publication of notice of the agency's "intended action" in the FAW. This notice must be published by the agency "[p]rior to the adoption, amendment, or repeal of any rule other than an emergency rule" and only "upon approval of the agency head." § 120.54(3)(a)(1), Fla. Stat. The notice "must state the procedure for requesting a public hearing on the proposed rule" and must include a short, plain explanation of the purpose and effect of the proposed action; the full text of the proposed rule or amendment and a summary thereof; a reference to the specific rulemaking authority pursuant to which the rule is adopted; and a reference to the section or subsection of the Florida Statutes or the Laws of Florida being implemented, interpreted, or made specific. § 120.54(3)(a)1., Fla. Stat. If requested in writing, a public hearing must be conducted by the agency prior to adoption of a proposed rule in order to "give affected persons an opportunity to present evidence and argument on all issues under consideration." See § 120.54(3)(c)1., Fla. Stat. Once this public hearing has been held, the agency may modify or withdraw the proposed rule or may adopt the proposed rule by filing it with the Department of State. See § 120.54(3)(d) and (e), Fla. Stat. If the agency decides to modify the substance of a proposed rule after the final public hearing or after the time for requesting a public hearing has passed, any substantive change in the rule "must be supported by the record of public hearings held on the rule, must be in response to written material received on or before the date of the final public hearing, or must be in response to a proposed objection by the [Administrative Procedures] committee." § 120.54(3)(d)1., Fla. Stat. The agency must also, among other things, publish notice of the change and the reasons for the change in the FAW. Id. When the agency has determined that the proposed rule is ready for adoption, it must file with the Department of State "three certified copies of the rule it proposes to adopt, a summary of the rule, a summary of any hearings held on the rule, and a detailed written statement of the facts and circumstances justifying the rule. § 120.54(3)(e)1., Fla. Stat. The proposed rule must be filed for adoption "no less than 28 days nor more than 90 days after the notice required by paragraph (a) [of Section 120.54(3), Florida Statutes]," § 120.54(3)(e)2., Fla. Stat.; the proposed rule is adopted upon filing with the Department of State and becomes effective 20 days after it is filed. § 120.54(3)(e)6., Fla. Stat. In addition to the opportunities to be heard at public hearings specified in Section 120.54, Florida Statutes, persons who are substantially affected by a proposed rule may file a petition with the Division of Administrative Hearings requesting an administrative hearing to determine the validity of the proposed rule, pursuant to Section 120.56, Florida Statutes, which provides in pertinent part: GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A RULE OR A PROPOSED RULE.-- (a) Any person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. * * * (e) Hearings held under this section shall be de novo in nature. The standard of proof shall be the preponderance of the evidence. Hearings shall be conducted in the same manner as provided by ss. 120.569 and 120.57, except that the administrative law judge's order shall be final agency action. The petitioner and the agency whose rule is challenged shall be adverse parties. . . . CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.-- Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule by filing a petition seeking such a determination with the division [of Administrative Hearings] within 21 days after the date of publication of the notice required by s. 120.54(3)(a), within 10 days after the final public hearing is held on the proposed rule as provided by s. 120.54(3)(c), within 20 days after the preparation of a statement of estimated regulatory costs required pursuant to s. 120.541, if applicable, or within 20 days after the date of publication of the notice required by s. 120.54(3)(d). The petition shall state with particularity the objections to the proposed rule and the reasons that the proposed rule is an invalid exercise of delegated legislative authority. The petitioner has the burden of going forward. The agency then has the burden to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised. Any person who is substantially affected by a change in the proposed rule may seek a determination of the validity of such change. Any person not substantially affected by the proposed rule as initially noticed, but who is substantially affected by the rule as a result of a change, may challenge any provision of the rule and is not limited to challenging the change to the proposed rule. * * * (c) When any substantially affected person seeks determination of the invalidity of a proposed rule pursuant to this section, the proposed rule is not presumed to be valid or invalid.
The Issue Did the Respondent, Florida Department of Law Enforcement ("FDLE"), properly follow the criteria for operational assessment? Did FDLE's operational assessment test all the stated criteria in the Request for Proposal ("RFP")? If FDLE's assessment did not test all the stated criteria, must the RFP be reissued? If FDLE should reissue the RFP, must the issue of whether FDLE properly followed the criteria for operational assessment be determined?
Findings Of Fact 1-12. Adopted. Rejected as contrary to best and most credible evidence. Adopted. Rejected as contrary to best and most credible evidence relating to "Benchmarks". Adopted. True but irrelevant. 18-21. Adopted. 22-25. Irrelevant. 26-28. Adopted. 29. Irrelevant. 30-33. Adopted. 34-39. Irrelevant. Adopted. Irrelevant. 42-44. Adopted. Irrelevant. Adopted. 47-48. Irrelevant. 49-61. Adopted. COPIES FURNISHED: James T. Moore, Commissioner Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Rodney E. Gaddy, Esq. Judith D. Landis, Esq. Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 W. Robert Vezina, Esq. Mary M. Piccard, Esq. CUMMINGS, LAWRENCE & VEZINA, P.A. P.O. Box 589 Tallahassee, FL 32302 Paul J. Martin, Esq. Department of Legal Affairs The Capitol-Suite 1501 Tallahassee, FL 32399-1050 Terrell C. Madigan, Esq. PAPY, WEISSENBORN & PAPY P.O. Box 1761 Tallahassee, FL 32302 Robert S. Cohen, Esq. HABEN, CULPEPPER, ET AL. Box 10095 Tallahassee, FL 32302
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the award of DEC be rejected and the process return to phase one to relet the bids. DONE AND ENTERED this 1st day of November, 1991, in Tallahassee, Leon County, Florida. STEVEN F. DEAN 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 1st day of November, 1991.
Findings Of Fact Based upon all of the evidence, including the pleadings and supporting documents, the following findings of fact are determined: Petitioner, Dr. Frank A. Brown, is a licensed psychologist having been issued license number PY-0002079. Respondent, Board of Psychological Examiners (Board), is the state agency charged with regulating the practice of psychology pursuant to Chapter 490, Florida Statutes. The parties agree that Dr. Brown is a small business party as defined in Subsection 57.111(3)(d)1.a., Florida Statutes. On August 24, 1989, the Board issued an amended administrative complaint against Dr. Brown alleging that he had violated chapter 490 in three respects while treating patient R. B. during the period from 1978 until 1987. In general terms, the complaint alleged that: Petitioner had violated sections 490.0111 and 490.009(2)(k) by committing any act upon a patient or client, other than the spouse of the doctor, which would constitute sexual misconduct. (Count I) Petitioner had violated section 490.009(2) (s) by failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. (Count II) Petitioner had violated section 490.009(2)(p) by being unable to practice the profession for which he is licensed under chapter 490 with reasonable skill or competence as a result of a mental or physical condition or by reason of illness, drunkeness, chemicals or any other substance. (Count III) The complaint was later referred to the Division of Administrative Hearings and was assigned Case No. 89-0599. An evidentiary hearing on the complaint was held on September 12 and 13, 1989. At the formal hearing the agency prosecutor voluntarily dismissed Count I, and the case was tried on the remaining two counts. On May 14, 1990, a Recommended Order was issued by Hearing Officer Diane Cleavinger recommending that all remaining charges be dismissed. Of significance to this proceeding is the allegation in Count II which charged Dr. Brown with failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. Bearing on Hearing Officer Cleavinger's decision to dismiss that count was her determination that the psychologist-patient relationship ended prior to the beginning of any love affair between Dr. Brown and his former patient. Among others, the hearing officer made the following findings: 5. Respondent's psychologist/client relationship was with R. B. and did not include her husband. The interest demonstrated by R. B.'s husband in her therapy was that of a concerned husband. Dr. Brown saw him collateral to the therapy he was conducting with R. B. He met with R. B.'s husband in order to make R. B.'s termination of therapy more successful. The evidence did not show that Respondent had ever agreed to formulate a psychologist/ client relationship with R. B.'s husband and, although the husband paid R. B.'s therapy bills, he was never charged separately for the discussions he had with Respondent during R. B.'s therapy. The other contacts, referenced by R. B.'s husband's testimony as supporting a professional relationship between him and Respondent, occurred well after R. B.'s therapy had terminated. The contacts variously involved obtaining advice from Dr. Brown on the impending death of a relative during an otherwise social gathering at the B.'s home, asking Dr. Brown, during a lunch meeting, for help with sexual problems for which Dr. Brown referred him to another psychologist, and testing of the B's children for scholastic purposes. All such contacts appear to have been given in friendship and not in a professional capacity. (Emphasis added) The underscored portion of the findings was intended to make a determination that any contact between Dr. Brown and R. B.'s children was not made in a professional capacity and as to those contacts the psychological/client relationship did not exist. The recommended order was considered by the Board at a meeting held on June 7, 1990, and was adopted in toto without change. A final order was issued on July 2, 1990, dismissing all charges against Dr. Brown. During the meeting held on June 7, 1990, and while discussing an exception to the recommended order raised by the agency prosecutor, the following statement was made by Board counsel: I will express now what other concern I've had with reading this case. It does seem clear that a dual relationship was formed during that period of time when there was regulation, in that Dr. Brown gave psychological services to the children of his lover, and of her unsuspecting husband. I have - you know, I'm just going to be very honest with you. When I was reading through the transcripts, some of the thoughts that occurred to me were out of his own mouth. . . (emphasis added) This statement was made in the belief, albeit incorrect, that Hearing Officer Cleavinger's findings in paragraph 5 of her recommended order regarding a dual relationship pertained only to the husband and not to the children. Counsel's statement suggested that Dr. Brown's relationship with the children was done in a professional capacity and thus was unethical, given his romantic relationship with R. B. Accordingly, prior to the issuance of a final order in Case No. 89- 0599, on June 11, 1990, the Board's counsel authored the following memorandum to counsel for the Department of Professional Regulation (DPR): By Dr. Brown's own admission, he performed psychological services for the children of R. B. The facts surrounding the dual relationship were not included in the administrative complaint filed in Case No. 89-0599. They do, however, constitute a separate cause of action and should be brought to the attention of the probable cause panel. Responding to this memorandum, DPR counsel recommended on June 18, 1990, that DPR open a new investigation against Dr. Brown concerning the issue of a possible dual relationship, that is, the testing of R. B.'s children while Dr. Brown was engaged in a love affair with R. B. The DPR uniform complaint form described the alleged misconduct in the following manner: Subject stated during testimony in previous DPR case (89-0599 DOAH) that he had engaged in a love affair with a client whose children he was counseling. Possible violation of Section 490.009(2)(s), F. S. The matter was assigned DPR Case No. 9007566. By letter dated August 11, 1990, petitioner's counsel was advised that a complaint had been filed against his client. The letter gave the following pertinent reasons for initiating the matter: This complaint is based upon information obtained in formal proceedings in Department of Professional Regulation case number 0081809. It is alleged by the Department that during the time Dr. Brown was providing psychological services to the children of R. B., he was concurrently engaged in a love affair with her. This dual relationship is a possible violation of Section 490.009(2) (s), Florida Statutes, which prohibits a licensee from failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. Dr. Brown, through counsel, put DPR on notice by letter dated September 5, 1990, that: It would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable. By a second letter dated September 25, 1990, petitioner's counsel again advised DPR "that the Department does not have a basis in law or fact for any allegations." On October 18, 1990, petitioner's counsel authored another letter to DPR stating in part as follows: I reiterate that it would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable. I respectfully request that this letter be made a part of the investigative file to be considered by the Probable Cause Panel. DPR counsel advised petitioner's counsel on September 28, 1990, that all factual and legal matters, including the objections raised in his letter, would be presented to the probable cause panel. Thereafter, DPR counsel submitted a suggested closing order to the panel proposing that a letter of guidance be issued based upon a belief of a violation of Chapter 490, Florida Statutes, as outlined in the August 17, 1990 letter sent to petitioner's counsel. By letter dated January 11, 1991, petitioner's counsel again placed the Board on notice that the subject matter of the new investigation was barred by the doctrine of collateral estoppel. The letter stated as follows: Dr. Brown was served with the notice of investigation in August, 1990. I have advised the department of Dr. Brown's position by letters dated August 13, August 20, September 5, September 25, October 1 and October 18, 1990. This investigation stems from matters resolved in favor of Dr. Brown in DPR Case number 0081809, DOAH Case Number 89-0599 in which Dr. Brown was charged with failure to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance in violation of Section 490.009 (2)(s), Florida Statutes (1981-86). Included in consideration of that charge was the scholastic testing of the children of (D. and R. B.) which is the subject of this pending investigation. The adopted finding of fact number 5 in the above case refers to the collateral relationships between Dr. Brown and (D. B.) and the children including "testing of the B's children for scholastic purposes." Finding of fact number 5 finds that: ALL SUCH CONTACTS APPEAR TO HAVE BEEN GIVEN IN FRIENDSHIP AND NOT IN A PROFESSIONAL CAPACITY. I reiterate that it would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable. The panel met on February 14, 1991, and considered DPR's recommendation to prosecute, the investigative report and all supplemental materials including a report from its expert consultant. The panel was also given a copy of the letter sent by Dr. Brown's counsel on January 11, 1991, which raised the collateral estoppel issue. After considering all of these materials, including the estoppel matter, the panel made a determination that respondent violated chapter 490 by providing therapy to the children while romantically involved with their mother and failing to disclose this relationship to the children's school and father. While the panel found probable cause to exist, it was advised by its counsel that the case was "weak," the chances of a successful prosecution were "minimal," and the best it could hope for was a reprimand. Accordingly, it followed the suggestion of counsel and recommended to DPR that the case be closed with a letter of guidance to the subject, which was then the most lenient form of discipline for a licensee. By the admission of counsel and panel members at that meeting, however, it was clear they knew the letter would become a part of Dr. Brown's disciplinary file, it was accessible by any member of the public examining his file, and the Board could use the letter against Dr. Brown in the event of future proceedings. In disposing of the contention by Dr. Brown that the doctrine of collateral estoppel applied, DPR and Board counsel gave the following advice: Ms. Gaffney: There's a great big legal issue in this case. That is whether or not this has been litigated. If we pursue an administrative complaint, we're going to be considering whether or not he treated the children and whether or not that's below the standards. That's easily proved testimony. But we have a pending litigation for attorney's fees on that prior case and this one is a case in which Mr. Lambert, in the materials there, there's correspondence indicating respondent's attorney, Mr. Lambert, will make legal attempts to squash the case by argument and motions to dismiss, such as this has already been litigated and so forth. Possibly double jeopardy, all that. Res judicata and double jeopardy, I think, are the two issues he's raised. I don't know whether he would prevail on that or not. I have a point of view, which is that the actual issue here was not charged in the administrative complaint when it was at the final hearing before the Board. The Board took notice of and supplements, and he said well, that's not charged. You can't do anything about that. So I don't know but that would be already double jeopardy or res judicata. Ms. Daire: I would agree with you on that, that it was not charged in the initial administrative complaint. It only came out in the testimony of Dr. Brown, when he talked about having treated the children, as well, and we could not do anything about that issue that was raised during the proceedings except to issue a new administrative complaint on his own admission. Although the panel members themselves did not discuss the issue, by finding probable cause, they implicitly accepted their counsel's advice and rejected the contention that they were precluded by the doctrine of collateral estoppel from issuing a second complaint on the stated ground. On March 27, 1991, DPR counsel, acting on behalf of the Board and in response to the panel's decision, sent a letter of guidance to respondent which read as follows: This letter is sent to inform you of the action taken in regard to the above-referenced complaint. This complaint concerned allegations that you failed to meet minimum standards of performance in professional activities in violation of Section 490.009 (2)(s), Florida Statutes. It has been determined that probable cause exists to believe that you have violated the provisions governing the practice of psychology. In light of the circumstances presented, however, this case is closed with issuance of this Letter of Guidance in lieu of further administrative action. It has been noted that your professional care for the patient's children while involved with the patient on a personal basis, without disclosure to the father and school falls below minimum standards. The Panel recommends that you review current literature regarding dual relationship issues. I would encourage you to familiarize yourself with the statutes and rules governing the practice of psychology and to abide by these provisions in the future. If you have any questions or comments regarding this matter, please feel free to contact me. On March 19, 1991, or before the letter was issued, petitioner filed a motion to set aside the probable cause determination as improvidently found. After the letter was issued, he requested a formal hearing on four separate occasions. All requests were denied and a final order was issued by DPR on April 24, 1991, denying the petition in all respects. Thereafter, petitioner appealed the letter of guidance to the First District Court of Appeal. The court reversed the Board's action and remanded the matter with instructions to dismiss the complaint. Brown v. Department of Professional Regulation, Board of Psychological Examiners, 602 So.2d 1337 (Fla. 1st DCA 1992). In dealing with the estoppel issue raised by Dr. Brown, the court noted that Hearing Officer Cleavinger had made the following findings in her recommended order: . . . and testing of the B's children for scholastic purposes. All such contacts appear to have been given in friendship and not in a professional capacity. The court went on to say The above-quoted findings of fact establishes that the sole allegation of misconduct in the 1990 complaint was actually litigated in the 1989 case. The record in that case contains evidence that the results of testing the children were submitted to the school. The Department, the Board, and the Probable Cause Panel became bound by the determination of fact that Dr. Brown did not violate section 490.009(2)(s) because a nexus between Dr. Brown's conduct and his practice of psychology did not exist. The Department, Board, and Panel are thus collaterally estopped from reasserting any charge of professional misconduct predicated on these acts. Id. at 1341. The court also noted that a letter of guidance affected Dr. Brown's substantial interests within the meaning of section 120.57, and that Dr. Brown was thus entitled to a section 120.57 hearing as requested. The court added, however, that because the agency was collaterally estopped from relitigating the issues raised in the second complaint, it was remanding the case with directions to dismiss the complaint. The parties are in agreement that the amount of attorney's fees and costs requested by petitioner is reasonable. Such fees and costs total $12,537.00.
Findings Of Fact The special condition in invitation to bid No. 69-360-240-F that petitioner challenges here provides: PUBLIC ENTITY CRIMES Any person responding with an offer to this invitation must execute the enclosed Form PUR 7068, SWORN STATEMENT UNDER SECTION 287.133(3) (a), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES and enclose it with your bid. If you are submitting a bid on behalf of dealers or suppliers who will ship and receive payment from the resulting contract, it is your responsibility to see that copy(s) of the form are executed by them and are included with your bid. Failure to comply with this condition shall result in rejection of your bid. Joint Exhibit No. 1. Under the heading "Bid Conditions," Rule 13A-1.008(2), Florida Administrative Code, incorporates form PUR 7068 by reference, and requires that invitations to bid on term contracts include the form. Challenge Untimely The parties stipulated in their prehearing stipulation as follows: "1. Respondent's Division of Purchasing advertised for competitive bidding for [a term contract for] carpet installed, bid number 69-360-240-F. "2. On or about April 19, 1990, the Division of Purchasing sent to prospective bidders a revised invitation to bid. [Like the original invitation to bid, the revised invitation to bid contained the following language: INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any actual or prospective bidder who disputes the reasonableness, necessity or competitiveness of the terms and conditions of the invitation to Bid, bid selection or contract award recommendation, shall file such protest in form of a petition in compliance with Rule 13A-1.006, Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Petitioner's Exhibit No. 5.] "3. The petitioner did not protest any of the terms and conditions of the invitation to bid within 72 hours of its receipt of the invitation to bid. "4. The petitioner timely submitted its bid pursuant to the above- referenced bid solicitation. "5. The bids were opened on May 16, 1990 and on July 23, 1990 the Division of Purchasing posted the official bid tabulation document. "6. The Division of Purchasing determined that the petitioner's bid was non-responsive. "8. On July 25, 1990, the petitioner timely filed its Notice of Intent of Protest with the respondent. "9. On August 3, 1990, the petitioner timely filed its Notice of Formal Written Protest and Petition for Formal Hearing. "10. On August 21, 1990, the petitioner filed a Petition for Administrative Determination of the Validity of Unpromulgated Rule challenging the special condition entitled `Public Entity Crimes' on page four of the invitation to bid." No Future Effect Already superseded in subsequent invitations by a revised version (T.142, 171), any special condition like the one petitioner challenges will soon undergo further change. Effective October 1, 1990, Section 287.133(3)(a), Florida Statutes will be amended to read: * Prior to entering into a contract a person shall file a sworn statement with the contracting officer . . . <<for the calendar year. The department shall adopt by rule a standard sworn statement . . .. The form shall include>> [[on a form to be promulgated by the department by rule, including the following information:]] The name of the person. The business address . . . * Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. Chapter 90-33, Sections 1 and 3, Laws of Florida (1990) (language added or deleted by Chapter 90-33). "Only if the responding bidder does not have the [sworn statement on public entity crimes] . . . on file with [respondent's] . Division of Purchasing on or after October 1 this year" (T. 135) must a sworn statement accompany a bid. The amended statute "effective on October 1 allows . . . submission of the public entity crime form document on a calendar year basis. So, it does not have to be submitted with each and every bid." (T. 135.) Petitioner does not anticipate bidding in response to any other of respondent's invitations to bid any time before October 1, 1990. When asked, "Is it Jones' Floor Covering's intention after October 1st, to submit only one sworn statement a year to the Division of Purchasing," (T. 95) Rocky Wayne Jones, a vice- president in petitioner's employ, answered, "Whatever we need to do, that's what we will do to be able to bid on State work. If that's what the law is, then we will do what the law says to do." T. 95.
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.
Findings Of Fact The Florida Department of Insurance (Department) is responsible for regulation of insurance transactions in the State of Florida. In 1996, the United States Supreme Court held in Barnett Bank of Marion County, N. A. v. Nelson, 517 U.S. 25 (1996) that nationally chartered banks located in towns with populations of 5000 or less were authorized to own insurance agencies. In response, the 1996 Florida legislature revised Section 626.988, Florida Statutes (the "anti-affiliation" statute) to conform to the Court's ruling in the Barnett case The 1996 legislature also enacted Section 626.5715, Florida Statutes, informally identified as the "parity statute." Section 626.5715, Florida Statutes, provides as follows: The department shall adopt rules to assure the parity of regulation in this state of insurance transactions as between an insurance agency owned by or an agent associated with a federally chartered financial institution, an insurance agency owned by or an agent associated with a state- chartered financial institution, and an insurance agency owned by or an agent associated with an entity that is not a financial institution. Such rules shall be limited to assuring that no insurance agency or agent is subject to more stringent or less stringent regulation than another insurance agency or agent on the basis of the regulatory status of the entity that owns the agency or is associated with the agent. For the purposes of this section, a person is "associated with" another entity if the person is employed by, retained by, under contract to, or owned or controlled by the entity directly or indirectly. This section does not apply with respect to a financial institution that is prohibited from owning an insurance agency or that is prohibited from being associated with an insurance agent under state or federal law. (Emphasis supplied.) The 1996 legislature also amended to Chapter 120, Florida Statutes (the Administrative Procedures Act) to restrict agency authority to promulgate rules, so as to prohibit the adoption of rules which, although perhaps rationally related to the purpose of an implementing statute, were not specifically authorized by the legislature. In the summer of 1996, the Department began circulating a draft of rules intended to address issues related to the sale of insurance in financial institutions. Beginning in January 1997, the Department began the formal process of adopting rules intended to address the "parity" of insurance regulation between insurance agencies affiliated with financial institutions and agencies which are unaffiliated. The Petitioners challenged parts or all of the proposed rules as invalid exercises of delegated legislative authority. As set forth in the Final Order entered June 29, 1998, in the consolidated rule challenges, Proposed Rules 4-224.002, 4-224.004, 4-224.007, 4-224.012, 4-224.013 and 4-224.014, Florida Administrative Code, were determined to be invalid exercises of delegated legislative authority. Although the challenged rules were determined to be invalid exercises of delegated legislative authority for various reasons, all were determined to be outside the Department's specific statutory authority as set forth by the legislature. There was no appeal of the Final Order. Prior to the hearing on the fee issue, all parties signed and filed a Prehearing Stipulation. According to the Prehearing Stipulation, "[t]he Department disputes entitlement to fees as a matter of law. It does not dispute the reasonableness of the fees, as capped by statute. It disputes the reasonableness of the costs sought by Florida Bankers Association. " The applicable statute provides that "a judgment or order shall be rendered against the agency for reasonable costs and reasonable attorney's fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust." The Department asserts that the agency's actions in adopting the challenged rules were substantially justified and that special circumstances exist which make the award unjust. The greater weight of the evidence fails to support the assertion. The evidence establishes that, from the initiation of the rule drafting process, the issue of whether the Department had the authority to adopt the proposed rules was of concern to the parties in this case. In response to an early draft of the rule circulated by the Department, the Florida Bankers Association (FBA) in June 1996 asserted that the proposed rules were outside the Department's authority under the parity statute. The FBA continued to maintain this position throughout the rule-drafting process and the subsequent rule challenge cases. The Department was apparently also concerned about whether the agency had authority to adopt the rules. In response to a question raised by Department legal staff, a December 31, 1996, letter to the Department from an attorney at the Joint Administrative Procedures Committee on the issue of authority indicates that the Department's general authority to adopt rules was restricted by the 1996 APA amendment to Section 120.536(1), Florida Statutes, and that additional specific authority would be required to support the promulgation of rules. At the fee hearing, the Department conceded that the parity statute alone did not grant the agency with the specific authority to prescribe or proscribe specific acts or actions of an insurance agent. The Department asserted that the authority for the proposed rules was set forth by the combination of Section 626.988, Florida Statutes, under which pre-existing rules had been adopted, with the Department's previous legal actions related to insurance sales by agents affiliated with financial institutions, and the presumed effect of the parity statute on the Department's otherwise-existing authority. The evidence fails to establish that the Department's reliance on historical authority to promulgate rules and the authority provided under the parity statute was reasonable given legislative restrictions on agency rulemaking set forth in the 1996 legislature's amendments to the Administrative Procedures Act. There was no credible evidence presented at the rule challenge hearing or during the fee hearing which suggested that an emergency, either existing or potential, which required the Department to take immediate action to protect insurance consumers. There was no credible evidence presented at the rule challenge hearing or during the fee hearing that insurance consumers were threatened by an availability of insurance products in settings other than in insurance agencies. There are no special circumstances that make an award of fees and costs unjust. The Department apparently asserts that because the FBA participated in the rulemaking process, special circumstances exist which make an award of fees unjust. Although the FBA participated in the workshop process, the FBA consistently asserted, as stated earlier, that the proposed rules were outside the Department's authority under the parity statute. By letter of June 5, 1996, the FBA specifically filed written objections to the proposed rules, asserting that they were inconsistent with the APA amendments and the authority granted by the parity statute. Further, the FBA noted in the June letter and again in a letter of September 27, 1996, that the purpose and authority of the parity statute was met by a single proposed rule which, in essence, stated that the provisions of the Florida Insurance Code were applicable equally to all agents and agencies, regardless of ownership or affiliation. At the fee hearing, the Department acknowledged that the FBA had raised specific objections regarding the agency's lack of statutory authority during the rule process. The FBA consistently asserted during the rulemaking process that the proposed rules were outside the Department's authority under the parity statute. The FBA pursued the assertion throughout the rulemaking process and successfully challenged the rules on the same basis. There was no evidence presented during the rule challenge or the fee case suggesting that the FBA retreated from the objection at any point in the rulemaking process. According to the Prehearing Stipulation signed and filed by the parties, the disputed issues of fact are whether the expert witness fee paid to Dr. Michael White was reasonable and whether other costs sought to be recoverable are reasonable. The only specific challenge presented by the Department to costs is directed towards Dr. White's fees. The evidence establishes that under the circumstances of this matter, Dr. White's fee is reasonable. At the fee case hearing, the FBA presented the deposition testimony of William B. Graham, an attorney practicing in Tallahassee, Florida, in support of Dr. White's fees. Mr. Graham's testimony is accepted and credited as to the amount of Dr. White's fee and to the time required to prepare for and participate in this proceeding. Based on Mr. Graham's testimony, Dr. White's fee of $320 per hour is reasonable for an expert of Dr. White's credentials. There is no credible evidence to the contrary. According to the three dated invoices submitted to the FBA by Dr. White, Dr. White expended a total of 106 hours and five minutes in rule challenge-related activities on behalf of the FBA. Based on Mr. Graham's testimony, the time recorded by Dr. White of 106 hours and five minutes for his services is reasonable under the circumstances of the rule challenge. There is no credible evidence to the contrary. The total amount of time billed by Dr. White results in a fee of $33,946.66. The three invoices submitted by Dr. White also bill the FBA for expenses totaling $2,643.72. There is no credible evidence that the Dr. White's expense billings are unreasonable. The total amount of fees and expenses charged by Dr. White to the FBA is $36,590.38. The FBA paid to Dr. White the total amount reflected on his invoices. By comparison with the fees charged by its own expert, the Department asserts that Dr. White's fees are unreasonable. The fact that the Department paid its expert less than the FBA paid to its own does not establish that payments to Dr. White were unreasonable. The amount of the attorney's fees to which the successful parties are entitled is not at issue in this proceeding. According to the Prehearing Stipulation, the Department "while contesting entitlement to any award of fees . . . does not dispute that the fees sought, as capped by the statute, is reasonable for the efforts of all counsel in this proceeding." The FBA, by affidavit, identified attorney's fees totaling $145,683.01, and seeks an award of $15,000, the statutory limit. By stipulation of the parties, the FBA is entitled to an award of attorney's fees in the amount of $15,000. The FBA identified total costs of $40,537.53, including the fees and expenses paid to Dr. White. There is no evidence that the costs of $3,947.15 set forth in the attorney billing records (and unrelated to costs related to Dr. White) are unreasonable. Based on the foregoing, the FBA is entitled to receive a total of $55,537.53. The Community Bankers Association identified attorney's fees totaling $10,290.00, and costs of $806.23. By stipulation of the parties, the Community Bankers Association is entitled to an award of attorney's fees in the amount of $10,290.00. There is no evidence that the Community Bankers Association costs of $806.23 are unreasonable. Based on the foregoing, the Community Bankers Association is entitled to receive a total of $11,096.23. The Department asserts that, due to "untimeliness" of the Petitions for Fees filed in these cases, an award of fees in this case is unjust. There is no issue of timeliness to be addressed in this matter. The Petitions for Fees were filed approximately 60-90 days after the time for appeal of the Final Order in the rule challenge cases had passed. The Final Order entered in the rule challenge proceeding specifically retained jurisdiction for an award of fees. There is no evidence that the Department was adversely affected by any delay in filing the Petitions for Fees.
Conclusions Based on the foregoing Findings of Fact and Conclusions of Law, the Department of Insurance shall pay total fees and costs as follows: The Florida Bankers Association shall receive a total of $55,537.53 The Community Bankers of Florida shall receive a total of $11,096.23. DONE AND ORDERED this 6th day of December, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 6th day of December, 2000. COPIES FURNISHED: Virginia B. Townes, Esquire Akerman, Senterfitt & Eidson, P.A. Post Office Box 231 Orlando, Florida 32802-0231 Counsel for Florida Bankers Association Michael H. Davidson, Esquire Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Counsel for Department Martha J. Edenfield, Esquire Pennington, Moore, Wilkinson & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 Counsel for Community Bankers of Florida Eli S. Jenkins 3330 Overlook Drive, Northeast St. Petersburg, Florida 33703 Authorized Representative of Specialty Agents, Inc. Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Honorable Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004); Whether Respondent, Florida Commission on Human Relations (FCHR), has inherent authority to reconsider a Final Order it has issued; and Whether FCHR should adopt a rule which would permit the granting of a motion to reconsider a Final Order.
The Issue Whether the Division of Administrative Hearings has subject matter jurisdiction to conduct a formal hearing under the provisions of Section 120.57(1)(b)10., Florida Statutes for costs and attorney's fees, if a decision of a case on appeal to the District Court of Appeal has not been rendered. Whether the Division of Administrative Hearings has subject matter jurisdiction for petition for attorney's fees and costs under the provisions of Section 57.111, Florida Statutes, if a decision of a case on appeal to the District Court of Appeal has not been rendered.
Findings Of Fact On December 29, 1994, the undersigned Hearing Officer issued a Recommended Order in the underlying case of Preferred Services, Inc. v. Department of Health and Rehabilitative Services and Wekiva Center Partnership, DOAH Case No. 94-4890BID, a bid dispute matter in which the Petitioner was not the prevailing party. The decision in the Recommended Order, which upheld the Department's action, was adopted by the Secretary in a Final Order, dated January 23, 1995. Petitioner timely filed a notice of appeal of the Final Order to the Florida Fifth District Court of Appeal, under the provisions of Section 120.68, Florida Statutes (1993). The court, in the matter of Preferred Services, Inc. v. Department of Health and Rehabilitative Services, DCA Case No. 95-0461, has not rendered a decision as of the date of this Order. On May 17, 1995, Petitioner filed its Motion for Attorneys Fees and Costs with the Clerk of the Division of Administrative Hearings seeking reimbursement under the alternate provisions of Sections 57.111 and 120.57(1)(b)10., Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is ORDERED that the Petitioner's Motion for Attorney's Fees and Costs in Case No. 95-2537F is DISMISSED without prejudice, for lack of jurisdiction, and this case is closed. DONE AND ENTERED this 15th day of June, 1995, 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 15th day of June, 1995. COPIES FURNISHED: Terrence William Ackert, Esquire Post Office Box 2548 Winter Park, Florida 32790 Eric D. Dunlap, Esquire Assistant District 6 Legal Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Suite S-827 Orlando, Florida 32801 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Section (2) of Rule 59C-1.012(2), Florida Administrative Code (the "CON Administrative Hearing Procedures Rule" or the "Rule") constitutes an invalid exercise of delegated legislative authority? Whether Section (2) of the Rule, in effect, was repealed July 1, 1998, by the adoption of the Uniform Rules of Procedure?
Findings Of Fact The Right to a Comparative Hearing Section (2) of the CON Administrative Procedures Rule provides a method by which a co-batched applicant whose CON application has been approved in a proposed decision by AHCA and then challenged by another party may invoke the right to a comparative hearing. The right to a comparative hearing in CON proceedings has as its source due process considerations found by the United States Supreme Court in a federal case that did not involve CONs but in a context that shared with the CON arena the need for comparative review: Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S. Ct. 148, 90 L.ED. 108 (1945). These due process considerations have been described as follows: The so-called Ashbacker doctrine, enunciated by the Court has been adopted in Florida. When the decision on one application will substantially prejudice other simultaneously pending applications because all applicants are competing for a franchise to serve a market that only one of them in practical effect will be given authorization to serve the applications are mutually exclusive. In this situation, any of the applicants may request a comparative hearing in which the merits of all applications will be tried together and against each other. Section 2.32, Boyd, Overview of the Administrative Procedure Act, Florida Administrative Practice, Florida Bar, 6th Ed. (2001), p. 2-38. The Ashbacker doctrine has been applied by Florida Courts to CON proceedings involving co-batched applicants. See Bio-Medical Applications of Clearwater, Inc. v. Dept. of Health & Rehabilitative Services, 370 So. 2d 19 (Fla. 2d DCA 1979); Bio-Medical Applications of Ocala, Inc. v. Dept. of Health & Rehabilitative Services, 374 So. 2d 88 (Fla. 1st DCA 1979); and South Broward Hospital District v. Dept. of Health & Rehabilitative Services, 385 So. 2d 1094 (Fla. 4th DCA 1980). In the Second DCA's Bio-Medical decision, above, the Court found a due process right in co-batched applicants to comparative hearings involving the other co-batched applicants and recognized the flexibility of the Agency's predecessor, HRS to devise "administrative procedures [that] will be promulgated to deal with administrative problems in affording comparative hearings, if any such problems are anticipated." Bio-Medical Applications of Clearwater, Inc., above, at 25, e.s. The right to a comparative hearing in CON proceedings has been codified in statute. Section 408.039(5)(c), Florida Statutes, provides, "only applicants considered by the agency in the same batching cycle are entitled to a comparative hearing on their applications." Section 408.039(5)(c), Florida Statutes, is among the statutes implemented by the CON Administrative Procedures Rule. Section (2) of the Rule is the provision at issue in this proceeding. The Parties Baptist is a licensed hospital located in Duval County, Florida. In the second batching cycle for 2001, Baptist applied to the Agency for Health Care Administration (the "Agency" or "AHCA") for a certificate of need ("CON") to establish a new 92- bed satellite hospital also in Duval County. The CON was preliminarily awarded by AHCA in a proposed decision contained in a State Agency Action Report (the "SAAR") issued December 14, 2001. The Agency for Health Care Administration is responsible for administering the certificate of need program under the Health Facility and Services Development Act, Sections 408.031-408.045, Florida Statutes. It promulgated the Rule with which this proceeding is concerned: Rule 59C-1.012, Florida Administrative Code. St. Vincent's and St. Luke's, like Baptist, are licensed hospitals located in Duval County, Florida. Also like Baptist, the two are the beneficiaries of proposed decisions in the SAAR although St. Vincent's, as explained below, was not as successful preliminarily as it had hoped during the events that precipitated this rule challenge. Precipitating Events A number of other applications were co-batched with Baptist's application in the second 2001 batching cycle. Three of the other co-batched applications were filed by St. Vincent's and St. Luke's. St. Luke's application was for a replacement hospital. St. Vincent's filed two applications, one a partial application for a 135-bed hospital; the other a full application for a 170-bed hospital, both to be located in the facility St. Luke's would leave if it is ultimately successful in its attempt to gain approval for the replacement hospital. Following review and evaluation of the applications, AHCA issued its SAAR and notices of intent on December 14, 2001. A SAAR sets forth in writing AHCA's findings of fact and determination upon which decisions are made with regard to CON applications. If there are no challenges filed timely to any of the decisions in the SAAR, the proposed decisions in the SAAR become final agency action. If there is a challenge then all of the action of AHCA in the SAAR remains preliminary pending the outcome of further administrative proceedings although, as more fully explained below, there are occasions when a decision in a SAAR is challenged but nonetheless it or other decisions are severed from the SAAR. Upon severance, they become final agency action while administrative proceedings continue with regard to other decisions contained in the SAAR. In the December 14, 2001, SAAR, the Agency explained the four proposed decisions with regard to the four co-batched applications of the three hospitals in this proceeding. The Agency approved Baptist's application for a 92-bed acute care satellite hospital, granted St. Vincent's partial application for a new 135-bed acute care hospital, and granted St. Luke's application for a new replacement hospital. But it denied St. Vincent's full application for a new 170-bed acute care hospital. Two weeks after the issuance of the SAAR, on December 28, 2001, AHCA published its notices of intent. The publication informed the public of AHCA's proposed decisions on the four co-batched applications as announced in the SAAR. In accord with the requirement of Section 408.039(4)(c), Florida Statutes, the notices were published in the Florida Administrative Weekly (Vol. 27, No. 52). With regard to providing a point of entry into additional administrative proceedings and in accord with Section 408.039(5), the publication stated: A request for administrative hearing, if any, must be made in writing and must be actually received by this department within 21 days of the first day of publication of this notice in the Florida Administrative Weekly pursuant to Chapter 120, Florida Statutes, and Chapter 59C-1, Florida Administrative Code. On the twenty-first day after publication, Memorial Healthcare Group, Inc., d/b/a Memorial Hospital Jacksonville ("Memorial"), an existing provider of acute care hospital services in Duval County, filed a petition challenging AHCA's preliminary approval of St. Vincent's partial application. On the same date, January 18, 2002, St. Vincent's filed a petition challenging the preliminary denial of its full application for a new 170-bed hospital. No party challenged the decision to issue a certificate of need to Baptist or St. Luke's within the twenty-one day period set forth in the notice. Thirty-five days after publication of the proposed decisions, and fourteen days after the filing of the Memorial and St. Vincent's petitions but within the time period allowed for by Section (2) of the Rule, St. Vincent's filed a third petition related to the co-batched applications. This petition of St. Vincent's invoked its right to a comparative hearing in which all approved applications, including Baptist's, would be at issue. The second of St. Vincent's two petitions was filed well beyond the 21-day period provided by AHCA as a point of entry into administrative proceedings for challenging decisions announced in the SAAR. The authority for filing the petition later than the 21-day period provided for in AHCA's December 28, 2001, notice is the object of this proceeding: Section (2) of the CON Administrative Hearing Procedures Rule. The Rule and its Development Rule 59C-1.012, Florida Administrative Code, is entitled "Administrative Hearing Procedures." It is one of two chapters of AHCA Rules in Volume 59C of the Florida Administrative Code that appear under the caption, "CERTIFICATE OF NEED." See Volume 59C, Florida Administrative Code. The first chapter, 59C-1, which includes the Rule, is entitled: "Procedures For the Administration of Sections 408.031 -- 408.045, Florida Statutes, Health Facility and Services Development Act." Rule 59C-1.012 states in paragraph (a) of subsection (2): If a valid request for administrative hearing is timely filed challenging the noticed intended award of any certificate of need application in the batch, that challenged granted applicant shall have ten days from the date the notice of litigation is published in the Florida Administrative Weekly to file a petition challenging any or all other cobatched applications. Rule 59C-1.012(2)(a), Florida Administrative Code. There is no contention in this proceeding that St. Vincent's filed its petition challenging AHCA proposed decision to approve Baptist's application in anything other than a timely manner under Section (2) of the Rule, that is, within its ten-day period: "10 days from the date the notice of litigation [to be distinguished from an AHCA notice of intended action or of proposed decision] is published in the Florida Administrative Weekly." Baptist hopes to defeat St. Vincent's petition with a motion to dismiss (see DOAH Case No. 02-0943CON) that depends on the outcome in this case; if Section (2) of the Rule is invalidated then there is no authority for the filing of St. Vincent's request for comparative hearing later than the 21- day period during which the other petitions were filed. A ruling, therefore, on the motion awaits the conclusion of this proceeding. Subsection (2) of the Rule was added by an amendment to the Rule in December of 1992 (the "1992 Amendment"). The Rule has not been amended since. The certification package for the 1992 Amendment to add Subsection (2) to the Rule was submitted to the Bureau of Administrative Code under cover of a letter dated November 24, 1992. In the certification, signed by the Department's General Counsel, the "[s]pecific [r]ulemaking [a]uthority" for the amendment is "408.15(8), Florida Statutes." Petitioner's Exhibit 4. Under "Law Being Implemented, Interpreted or Made Specific" are listed "408.039(5), F.S." and "120.57, 120.59, F.S." Id. The language in the amendment that added the present Section (2) to the Rule is markedly different from language originally proposed in the process that culminated in the present language. The different language proposed earlier is contained in an Inter-Office Memorandum dated January 31, 1992. The memorandum references "proposed amendments to [the Rule] . . . circulated for internal office review and comment." See Petitioner's Exhibit 1. This earlier version of the amendment did not allow any additional time beyond twenty-one days from the publication of a notice of proposed decisions or a notice of intent for a co-batched CON applicant to request a comparative hearing. The proposal provided only a twenty-one day period from publication of the notice of the Agency's proposed decision as the time for requesting a comparative hearing. The language of this earlier version recognized the difficulty posed for granted applicants among a batch of applicants. There may be no reason for an approved applicant to seek further administrative proceedings with regard to a proposed decision that is favorable unless and until that proposed decision is challenged by another party. Such a challenge may not be filed until the last minute of the twenty- first day leaving the applicant without time to request a comparative hearing or requiring the applicant to draft a request for such a hearing and stand on watch in the AHCA Clerk's office, ready to file it in case a petition contesting the approval of its application is filed at the last minute. The earlier version, therefore, provided that once a petition challenging any proposed decision in a SAAR was filed that there were implications for the other applications in the same batch: (2) If any portion of the agency decision contained in the State Agency Action Report is challenged by any person authorized by s. 381.709(5)(b), F.S., all applications in the batch are at issue, with the following exceptions: [a denied applicant who has not challenged the denial]. [an application severed from the remainder of the batch by stipulation of the parties under other certain conditions] (Petitioner's Exhibit 1, 5th page of a ten-page document with no page numbers. The language in the quote, above, is underscored in the exhibit since it is language proposed to be added by a rule amendment. In order to emphasize part of that language, however, the underscoring has been eliminated with the exception of the language emphasized.) The import of this different version of what became the language in the Rule is that there are other ways (albeit ways that may not function as smoothly as the method provided by the Rule) that applicants could invoke their right to a comparative hearing. A challenge to the Rule as proposed to be amended in accord with the language in the interoffice memorandum of January of 1992 was filed. In order to settle the matter, the Agency made changes. These changes are reflected in a memorandum dated April 7, 1992, from "Lesley Mendelson" (the "Mendelson memorandum") to "Liz Dudek" and "Bob Pannel." After discussion of several proposals by interested parties, one of which is designed to cure problems posed by "the price extracted from granted applicants to enter into a stipulation which would allow the granted applicant to be severed from the batch" (Petitioner's Exhibit 2), the Mendelson Memorandum recommends the language the agency settles on eventually as "the new paragraph 2(b)": (b) If a timely petition is filed challenging one or more intents to grant an application in the same batching cycle, the challenged granted applicant(s) shall have 10 days to file a petition challenging any or all notices of intent in the same batching cycle. (Petitioner's Exhibit 2.) This language with changes not material to this proceeding eventually was incorporated into Section (2) of the Rule. Stamped received September 9, 1992, AHCA submitted a notice of proposed rulemaking to the Bureau of Administrative Code in the Department of State. The notice proposes with modification of language insignificant to this proceeding the concept proposed in the Mendelson's memorandum. The Agency describes the proposed changes to Rule 59C-1.012 (the "1992 Amendment") as procedural in nature: The purpose of the proposed amendments . . . is to clarify and revise the existing rule regarding the definitions and procedures relating to administrative hearings . . . . The proposed amendments . . . set forth administrative hearing procedures for batched Certificate of Need applications . . . . (Petitioner's Exhibit 3.) In answer to the question of what prompted the development of the 1992 Amendment now in the Rule, Elizabeth Dudek, AHCA Deputy Secretary for Managed Health Care and Health Quality, and the Director of the Certificate of Need Office at the time 1992 Amendment were proposed, testified: [I]t was not uncommon at that point [prior to the 1992 Amendments] to have a nursing home case with 20 or more applicants and try to deal with who filed what when, even with letters of intent, and not uncommon to have at that point after a CON decision was made, to have CON consultants, their attorneys, lining the halls to see who would . . . file a petition or challenge against one of the parties in the case. And also not uncommon that there were, in a large case, individuals who might have had an approval but basically were held captive by the entire process . . . . So there was not still a process that was as streamlined as it could have been and basically cut back on some of the uncertainty and just the volume of what was going on. So one of the things that we looked to do with this rule is try to further . . . narrow and clarify what the process would be with respect to outcomes of CON decisions; and then how people would progress further from that . . . (Tr. 117, 118). Ms. Dudek went on to testify that the problem addressed by the 1992 Amendment did not occur in cases where the issues were between one applicant and the Agency or in cases of expedited review. The issues the 1992 Amendment were intended to resolve relate to co-batched applicants and stem from the rights of co-batched applicants to comparative review. Comparative Review Under the statutory scheme for administration of the CON Program, a CON is required for the establishment of certain types of health care facilities (such as a hospital or nursing home), for the establishment of additional beds at an existing facility, and for the establishment of certain services. Persons seeking a CON must file an application in what is known as a "batching cycle." See Section 408.039(1), Florida Statutes, and Florida Administrative Code Rule 59C-1.010. In a batching cycle, all applications seeking approval for the same type of facility, beds, or services undergo "comparative review" by the Agency. "Comparative review" is defined as follows: "Comparative review" means the process by which Certificate of need applications, submitted in the same batching cycle for beds, services or programs for the same planning area, as defined by applicable rules, are competitively evaluated by the agency through final agency action for purposes of awarding a Certificate of Need. (Emphasis added.) See Florida Administrative Code Rule 59C-1.002(11). The Agency proposes a decision to approve or deny a CON application and then denied applicants are afforded rights to further administrative proceedings pursuant to Section 408.039, Florida Statutes. Existing facilities and programs may challenge also the Agency's proposed decision to approve a CON application for a competing facility or program. Section 408.039(5) contains the statutory provisions related to administrative hearings on CON decisions: Within 21 days after publication of notice of the State Agency Action Report and Notice of Intent, any person authorized under paragraph (c) to participate in a hearing may file a request for an administrative hearing; failure to file a request for hearing within 21 days of publication of notice shall constitute a waiver of any right to a hearing and a waiver of the right to contest the final decision of the agency. A copy of the request for hearing shall be served on the applicant. Hearings shall be held in Tallahassee unless the administrative law judge determines that changing the location will facilitate the proceedings. The agency shall assign proceedings requiring hearings to the Division of Administrative Hearings of the Department of Management Services within 10 days after the time has expired for requesting a hearing. Except upon unanimous consent of the parties or upon the granting by the administrative law judge of a motion of continuance, hearings shall commence within 60 days after the administrative law judge has been assigned. All parties, except the agency, shall bear their own expense of preparing a transcript. In any application for a certificate of need which is referred to the Division of Administrative Hearings for hearing, the administrative law judge shall complete and submit to the parties a recommended order as provided in ss. 120.569 and 120.57. The recommended order shall be issued within 30 days after the receipt of the proposed recommended orders or the deadline for submission of such proposed recommended orders, whichever is earlier. The division shall adopt procedures for administrative hearings which shall maximize the use of stipulated facts and shall provide for the admission of prepared testimony. * * * The applicant's failure to strictly comply with the requirements of s. 408.037(1) or paragraph (2)(c) is not cause for dismissal of the application, unless the failure to comply impairs the fairness of the proceeding or affects the correctness of the action taken by the agency. The agency shall issue its final order within 45 days after receipt of the recommended order. If the agency fails to take action within such time, or as otherwise agreed to by the applicant and the agency, the applicant may take appropriate legal action to compel the agency to act. When making a determination on an application for a certificate of need, the agency is specifically exempt from the time limitations provided in s. 120.60(1). The right to a comparative hearing is codified in paragraph (c) of the statute providing administrative proceedings related to CONs: (c) In administrative proceedings challenging the issuance or denial of a certificate of need, only applicants considered by the agency in the same batching cycle are entitled to a comparative hearing on their applications. Existing health care facilities may initiate or intervene in an administrative hearing upon a showing that an established program will be substantially affected by the issuance of any certificate of need, whether reviewed under s. 408.036(1) or (2), to a competing proposed facility or program within the same district. Section 408.039(5), Florida Statutes. It is this provision that statutorily confers on co-batched applications "entitle[ment] to a comparative hearing on their applications." Id. "Comparative hearing" is defined to mean: (10) "Comparative hearing" means a single hearing, conducted pursuant to s. 120.57, F.S., and s. 59C-1.012, F.A.C., held to review all pending applications in the same batching cycle and comparatively reviewed by the agency. (Emphasis added.) See Rule 59C-1.002(10), Florida Administrative Code. Participation in Comparative Review Proceedings Under current procedure, all co-batched applicants do not automatically participate in comparative review because of one of the applicants' request for administrative proceedings following issuance of the SAAR. If the request does not relate to the denial of another co-batched applicant and the denied applicant fails to challenge the denial within the 21-day period then the denied applicant has no right to participate. It participates only if its denial has been challenged by another, a rare event. (See tr. 124). The denied applicant, by failing to challenge its own denial waives its right to comparative review. Approved applicants, moreover, that are challenged are not invariably fated to endure a comparative hearing until it is completed. Once a co-batched applicant has challenged the approved application, the proceedings related to the comparative hearing commence. But under the Rule, if all challenges to the approval are subsequently voluntarily dismissed as well as any to the fixed need pool, the approved applicant is severed from the batch. The severed applicant then receives a CON separately from action with regard to its co-batched applicants by final agency action. The same happens if no one challenges an approved applicant and there is no challenge to the fixed need pool, yet other challenges are made to other proposed decisions announced by the SAAR. (This was the scenario with regard to Baptist prior to St. Vincent's request for a comparative hearing.) The approved unchallenged applicant is severed from the batch and receives the certificate of need awarded by the SAAR by separate final agency action. These processes are codified in sub-paragraphs(b) and (c) of Section (2) of the Rule. St. Vincent's Interest in a Comparative Hearing Applications for CONs in the same batching cycle are not necessarily mutually exclusive. It is possible, for example, that both St. Vincent's and Baptist's could emerge from administrative hearings with the CONs for which they applied. Nonetheless, their proposals might be mutually exclusive. In the proceeding brought against St. Vincent's, Memorial might be able to prove that the District has a need for a number of beds that would allow either St. Vincent's approval or Baptist's but not both. If the hearing is not a comparative hearing but simply Memorial versus St. Vincent's then in light of such proof of mutual exclusivity, St. Vincent's application would have to be denied since Baptist's had been approved. On the other hand, if a comparative hearing is held, and St. Vincent proved that its application is superior to Baptists and that it was otherwise entitled to a CON, then its application could still be granted in the face of Memorial's proof of mutual exclusivity. In such a case, Baptist's would have to be denied. St. Vincent's interests, therefore, propelled it to request a comparative hearing once Memorial challenged AHCA's proposed decision to approve the St. Vincent's CON application. Baptist, in turn, hopes to avoid a comparative hearing with St. Vincent's. Its hope is based on what it sees as the invalidity of Section (2) of the Rule against which it has launched a two-pronged attack. Baptist's Two-pronged Attack Baptist sees Section (2) of the Rule to be in contravention of statutory authority. It reads the applicable statutes to require the filing of a request for comparative hearing within the 21-day period following the publication of the notice of the SAAR without authority for the filing later in the 10-day window as authorized by Section (2) of the Rule. Baptist also argues that Section (2) of the Rule was repealed when the Uniform Rules of Procedure were adopted and AHCA failed to obtain an exception for the section by July 1, 1998. Subsumed in this argument is the contention that the provision of the 10-day window conflicts with one of the Uniform Rules: Rule 28-106.111, Florida Administrative Code, the "Uniform Point of Entry Rule." The Uniform Point of Entry Rule Rule 28-106.111, Florida Administrative Code, which became effective April 1, 1997, provides, in pertinent part: (2) Unless otherwise provided by law, persons seeking a hearing on an agency decision which does or may determine their substantial interest shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision. * * * (4) Any person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such matters. The subject of the Uniform Point of Entry Rule is what is referred to in case law as "point of entry." Point of entry is that opportunity that must be provided by an agency to a party to participate in administrative proceedings after an agency decision has determined the party's substantial interests and through which the party enters administrative proceedings and thereby gains access to the decision-making process by which the agency determines the party's substantial interests. Indeed, the title of Chapter 28-106, is "Decisions Determining Substantial Interests." The Chapter is one set of what makes up an assemblage of rules required by the Administrative Procedure Act: the Uniform Rules of Procedure. Uniform Rules of Procedure In 1996, the Florida Legislature, in response to an ongoing examination of the Model Rules of Procedure (see Chapter 28-1 through 5 of the Florida Administrative Code, now repealed) initiated by the Governor's Office and as part of a revision of the Administrative Procedure Act, enacted Section 120.54(5), Florida Statutes. The section mandates adoption of "one or more sets of Uniform Rules of Procedure." Section 120.54(a)1., Florida Statutes. As a result of the mandate, the Uniform Rules of Procedure were adopted. Chapter 28-106 is one set of the Uniform Rules. Events that led up to the adoption of the Uniform Rules of Procedure were described at hearing by William E. Williams, a member of the Executive Council of the Administrative Law Section of the Florida Bar prior to 1996 and the Section Chair in 1996, when the Legislature mandated the adoption of the Uniform Rules of Procedure: The Model Rules of Procedure . . . had been in place for about 25 years and although the thought early on was to make them apply to all agencies, the Model Rules really did not. . . . they applied to the extent that agencies didn't adopt rules on the same subject; so the agency had the ability to essentially trump the Model Rules by adopting their own rules of procedure. * * * The administrative law section took a position . . . that by having each agency adopt its own procedural rules . . . was confusing to the practicing bar and the public because different time parameters were provided for in various agency rules. * * * [W]hat became 120.54(5) was essentially a product of the input of the administrative law section with regard to Uniform Rules of Procedure that would be uniformly applicable to all agencies in the absence of that agency seeking an exception under certain circumstances. (Tr. 50-52). Among the requirements in Section 120.54(5)(b)4., is one that rules be adopted for the "filing of petitions for administrative hearings pursuant to s. 120.569 or s. 120.57." This requirement stemmed from the concern of The Administrative Law Section of the Bar that differing points of entry times, one in the Model Rules, another in rules specific to an agency, could create a trap for the unwary. This concern was expressed in a white paper issued by the section entitled "Administrative Law Section Ideological and Legislative Position on APA 'Reform'": Uniform model rules of procedure that govern actions of every agency benefit the people by avoiding procedural traps and obstacles. Allowing agencies to create special procedural rules that vary from agency to agency defeats citizen participation in government and handicaps citizens who question agency actions. The agency rules are difficult for citizens and lawyers to locate. They are traps for the unwary. (Petitioner's Exhibit 7, p. 2-3.) To ease the concern expressed by the Administrative Law Section about "traps for the unwary" with regard to points of entry, the Uniform Rules of Procedure provide for a twenty- one day point of entry to seek a hearing on an agency decision (Rule 28-106.111, Florida Administrative Code). No exceptions are provided in the Uniform Rules. At the same time, exceptions were allowed by Section 120.54(5). Chapter 96-159, Laws of Florida, moreover, provided agencies a reasonable time period to review their procedural rules and seek exceptions as necessary. The statute is explicit with regard to exceptions: * * * [T]he uniform rules shall be the rules of procedure for each agency subject to this chapter unless the Administration Commission grants an exception to the Agency under this subsection. An agency may seek exceptions to the uniform rules of procedure by filing a petition with the Administration Commission. The Administration Commission shall approve exceptions to the extent necessary to implement other statutes, to the extent necessary to conform to any requirement imposed as a condition precedent to receipt of federal funds or to permit persons in this state to receive tax benefits under federal law, or as required for the most efficient operation of the agency as determined by the Administration Commission. The reasons for the exceptions shall be published in the Florida Administrative Weekly. Agency rules that provide exceptions to the uniform rules shall not be filed with the department unless the Administration Commission has approved the exceptions. Each agency that adopts rules that provide exceptions to the uniform rules shall publish a separate chapter in the Florida Administrative Code that delineates clearly the provisions of the agency's rules that provide exceptions to the uniform rules and specifies each alternative chosen from among those authorized by the uniform rules. Section 120.54(5)(a), Florida Statutes. After adoption of the Uniform Rules, the Office of the Governor sent a memorandum from "Debby Kearney" to "All Agency General Counsels" (the "Kearney Memorandum"). The Kearney Memorandum provided state agencies with a copy of the Uniform Rules and notified them of the requirement to file for exceptions if different procedures were necessary to conduct proceedings before their agency or as required by law. The memorandum was specific regarding the need to apply for exceptions. Even if an agency had specific statutory authority for a procedure different from that in the Uniform Rules, the agencies were reminded of the requirement that they seek approval of the exception: The working group on the Uniform Rules was quite emphatic that the intent evident in the statute is that every procedural rule that is different from or is in addition to a Uniform Rule, be included on the listings of exceptions. Obviously, if a difference is required by statute or case law, this will be the easier case; however, all must go through this procedure. (Petitioner's Exhibit 9, emphasis in original.) The Administration Commission followed up by providing forms to request an exception, and again reiterated the importance of requesting one, whether it be for something different, or something in addition to, the Uniform Rules: To assist agencies in requesting exceptions, the Administration Commission staff has prepared a model petition format outlining the information that will be necessary for the Commission to review the petitions and make a decision. As communicated in Ms. Kearney's memorandum, EVERY procedural rule that is different from or in addition to a Uniform Rule, must go through the exception process. The format is divided into two sections. Section I includes procedures that are covered by the Uniform Rules. Section II includes procedures that are not covered by the Uniform Rules; however, the procedure must be necessary and the agency must be authorized to have the procedure. (Petitioner's Exhibit 10, emphasis added.) Subsequent to these two memoranda, questions arose from agencies regarding the scope of application of the Uniform Rules of Procedure. In particular, agencies expressed concern regarding permit and license application procedures prior to intended agency action. To answer these concerns, on March 4, 1998, the Administration Commission under the signature of its Secretary, Bob Bradley, issued another memorandum (the "Bradley Memorandum"). The Bradley Memorandum explains that "free form" procedures (those that precede notification of agency action, entry into formal proceedings and the carrying out of challenges to agency action through resolution by final order) were not within the scope of the Uniform Rules and therefore did not require exceptions: Section 120.54(5)(b), Florida Statutes, requires the Commission to adopt uniform rules of procedure for specific subjects . . . . There are a myriad of other procedural matters, such as permit or license application procedures, which precede formal proposed agency action and, thus, are not addressed by the [Uniform Rules]. * * * Exceptions to procedural rules which lie beyond the scope of rules contained in the [Uniform Rules are] not required . . . . (Petitioner's Exhibit 11.) The Agency for Health Care Administration did not apply for, nor, consequently, did it receive, an exception to the Uniform Rules to cover the procedure for invoking an approved applicant's right to a comparative hearing contained in Section (2) of the Rule. At hearing, AHCA offered no evidence or explanation regarding its course of not seeking an exception to the Uniform Rules of Procedure. Restrictions to Agency Rule-Making Authority The 1996 amendments to Chapter 120 (Ch. 96-159, Laws of Florida, Petitioner Exhibit 14), in addition to requiring one or more sets of Uniform Rules of Procedure, also limited agency discretion in rule adoption. Prior to that time, agencies could adopt rules if there was a general grant of authority and the rule was reasonably related to the law being implemented. The 1996 amendments restricted agency rule-making authority to those which "implement, interpret, or make specific the particular powers and duties granted by the enabling statute." Prior to these amendments, agencies had broad discretion to adopt rules which were "reasonably related to the purpose of the enabling legislation." See Chapter 96-159, Section 9, Laws of Florida (Petitioner's Exhibit 14; Tr. Pages 93-96). In 1999, this rule-making authority was limited even further, rejecting the "class of powers and duties" analysis of St. Johns River Water Management District v. Consolidated-Tomoka Land Co., 717 So. 2d 72 (Fla. 1st DCA 1998), which interpreted agency rule-making authority more broadly than the Legislature had intended. (See "intent" language of Chapter 99-379, Laws of Florida.) Chapter 99-379, Section 3, Laws of Florida, amended Section 120.536, Florida Statutes, to clarify that: No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provision setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific the particular powers and duties conferred by the same statute. (Petitioner's Exhibit 15.) By both Chapters 96-159 and Chapters 99-379, Laws of Florida, agencies were provided a period of time to review and conform their rules to the stricter rule-making standards of that legislation (Tr. p. 96) The record reflects that AHCA took no action to modify Rule 59C-1.012, in light of these new legislative directives. Legislative Recognition of the Rule in 1997 In 1997, the Florida Legislature recognized all of AHCA's rules, including the CON Administrative Hearings Procedure Rule, that then implemented the CON statutes by declaring the rules effective and enforceable: The rules of the agency in effect on June 30, 1997 shall remain in effect and shall be enforceable by the agency with respect to ss. 408.031-408.045 until such rules are repealed or amended by the agency . . . . See Chapter 97-270, Laws of Florida. This law was codified as Section 408.0455, Florida Statutes, with an effective date of July 1, 1997, two months after the effective date of the adoption of the Uniform Rules of Procedure and exactly one year prior to the deadline for approval of exceptions to the Uniform Rules, July 1, 1998.
