Conclusions Having reviewed both the Amended Notice of Intent to Deny Renewal Application and an Amended Notice of Intent to Deny (both) dated May 3, 2013, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Petitioner pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Notice of Intent to Deny Renewal Application and an Amended Notice of Intent to Deny and Election of Rights form to the Petitioner. (Composite Ex. 1) The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Petitioner shall pay the Agency an administrative fine of $8,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 365 days of rendition of this Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. Please make checks payable to the “Agency for Health Care Administration”, include the AHCA ten-digit number, and send to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 3. Each party shall bear its own costs and attorney’s fees. Any requests for administrative hearings are hereby dismissed, and the above-styled case is hereby closed. 1 Filed March 20, 2014 10:25 AM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this |(_ day of Mic ah , 2014. ~ Elizabegh Dudek, fedretary Agengy for Health*€are Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and at this ine was served on the below-named persons by the method designated on this/ 7 day of (aL , 2014. p, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Theodore E. Mack, Esquire Powell & Mack, P.A. 3700 Bellwood Drive Tallahassee, Florida 32303 (U.S. Mail) Finance & Accounting Revenue Management Unit Agency for Health Care Administration Electronic Mail) Warren J. Bird Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shaddrick Haston, Unit Manager Assisted Living Facility Agency for Health Care Administration (Electronic Mail) Jan Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail)
The Issue Whether proposed Rules 69O-175.003, 69O-170.005-007, 69O- 170.013, 69O-170.0135. 69O-170.014, 69O-170.0141, 69O-170.0142, and 69O-170.0155 are valid exercises of delegated rulemaking authority.
Findings Of Fact Section 20.05, Florida Statutes, addresses the structure and powers of the Department. Section 20.05 provides as follows, in pertinent part: 20.05 Heads of departments; powers and duties.-- (1) Each head of a department, except as otherwise provided by law, must: * * * (b) Have authority, . . ., to execute any of the powers, duties, and functions vested in the department or in any administrative unit thereof through administrative units . . . designated by the head of the department, . . . unless the head of the department is explicitly required by law to perform the same without delegation. * * * (e) Subject to the requirements of chapter 120, exercise existing authority to adopt rules pursuant and limited to the powers, duties, and functions transferred to the department. The Financial Services Commission (Commission) was created within the Department pursuant to Section 20.121, Florida Statutes. However, the Commission is not “subject to control, supervision or direction by the Department of Financial Services in any manner.” § 20.121(3), Fla. Stat. The Commission is composed of the Governor and Cabinet, who collectively serve as the agency head of the Commission. Action by the Commission can only be taken by majority vote “consisting of at least three affirmative votes.” Id. OIR is a structural unit of the Financial Services Commission. Section 20.121(3) states in relevant part, as follows: Structure.— The major structural unit of the commission is the office. Each office shall be headed by a director. The following offices are established: 1. The Office of Insurance Regulation, which shall be responsible for all activities concerning insurers and other risk-bearing entities . . . * * * * Organization.-- The commission shall establish by rule any additional organizational structure of the offices. It is the intent of the legislature to provide the commission with the flexibility to organize the offices in any manner they determine appropriate to promote both efficiency and accountability. Powers.— Commission members shall serve as the agency head for purposes of rulemaking . . . by the commission and all subunits of the commission. . . . (emphasis supplied) Clearly, under the Department’s, the Commission’s and the OIR’s organizational structures, only the Commission may promulgate rules for both itself and OIR. The Department does not have rulemaking authority over areas that have been given to the Commission. On the other hand, nothing in the statute prohibits OIR, as directed by the Commission, to perform steps, preliminary to proposing a rule, that often occur in the rule development process prior to the actual Notice of proposed rulemaking. See also § 120.54, Fla. Stat. To that end, the Commission, by non-rule policy, has delegated authority to OIR to engage in rulemaking activities on behalf of the Commission. However, this delegation is not limited to rule development activities that occur prior to the Notice of proposed Rules, but authorizes publication of the Notice prior to approval by the Commission of any proposed language or policy statement. As indicated, the Notices for the proposed Rules were published in the Florida Law Weekly in November 2004, with various changes made thereafter. The proposed Rules were published as OIR rules. Disturbingly and misleadingly, all the Notices for the proposed Rules state that the agency head approved the Rule that is the subject of the Notice on September 3, 2004 or November 2, 2004. However, none of the proposed Rules were approved by the Commission, the agency head, prior to their publication as a proposed rule in the Florida Administrative Weekly. The specific agency authority listed in the Notices for promulgating the proposed Rules was Section 624.308(1), Florida Statutes. Section 624.308(1) grants the Department of Financial Services (Department) and the Financial Services Commission (Commission) the general authority to adopt rules, pursuant to Sections 120.536(1) and 120.54 in order to implement laws that confer duties upon them. The statute does not confer the authority on the Office of Insurance Regulation (OIR) to adopt rules. See § 624.05, Fla. Stat. The statutes that confer a specific grant of rulemaking authority over the areas of the laws implemented in the proposed Rules are Sections 627.0651 and 627.331, Florida Statutes. These two statutes confer specific rulemaking authority over certain areas of insurance ratemaking only to the Commission; specific rulemaking authority is not granted to the Department or to OIR. Other than rulemaking authority, the various duties assigned in the laws implemented by proposed Rules are given to OIR.
Conclusions In a previous Final Order the agency imposed fines for violat ons of ACLF rules. In a subsequent Motion For Relief from the Final Order, the Respondent maintained that it did not receive the Final Order and requested that the agency re-enter the Final Order so it could file a timely Notice of Appeal.1 The motion was referred to the Division of Administrative Hearings for further proceedings. The hearing officer entered an order recommending that the Motion For Relief be dismissed. In its exceptions, the Respondent challenges the legal foundation for the hearing officer’s recommendation of dismissal. The hearing officer noted that the Respondent has not attempted to invoke appellate jurisdiction? and further noted that the Administrative Procedure Act does not authorize an agency to re-eriter a Final Order as requested by the Respondent. Although excepting to the Reccmmended Order of 1 similar allegations of lack of notice and failure to receive mail were found not to be credible in paragraph 24 of the Recommended Order of April 5, 1995, which was adopted in the Final Order challenged in the current proceeding. In that same Recommended Order in paragraph 36 the hearing officer found that the Respondent’s failure to cooperate with the agency constituted “. . . gross indifference to the agency's authority to verify and enforce the standards set by law.” 2 Section 120.68(6), Florida Statutes, gives the reviewing court the authority tc remand for fact finding proceedings where the validity of an agency action depends upon disputed facts. Dismissal, the Respondent does not state the relief it seeks. The exceptions are denied. The Recommended Order of Dismissal of October 23, 1995, by the Honorable Joyous D. Parrish is adopted and incorporated by reference. DONE and ORDERED this) lay of , , 1995, in Tallahassee, Florida. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION y Douglas M. Cook, Director A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Linda Parkinson, Esquire Senior Attorney, Agency for Health Care Administration 400 West Robinson Street, Suite S-309 Orlando, FL 32801-1976 Esther A. Zaretsky, Esquire 1655 Palm Beach Lakes Boulevard Forum Ill, Suite 900 West Palm Beach, FL 33401 Joyous D. Parrish, Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 -2- CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the feregoing has been furnished to the above named addresses by U. S. Mail this _/ 7 day of , 1995. tt -<——___- R. S. Power, Agency Clerk State of Florida, Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, FL 32308-5403 (904)922-3808 power/1 1/6/95 -3-
The Issue The issue is whether Respondent has engaged in an unlawful employment practice against Petitioner in violation of Section 760.10, Florida Statutes, by discriminating against Petitioner based on his disability.
Findings Of Fact Petitioner has been employed as a correctional officer by Respondent at all times pertinent to this proceeding at Tomoka Correctional Institution (TCI) in Volusia County, Florida. The prison houses adult male inmates. Staff at TCI has the primary mission of providing for the public safety through the care, custody and control of the inmates housed in that facility. In early 1998, Petitioner was diagnosed with Non- Hodgkin's Lymphoma and began treatment for the disease. He was granted leave as needed for treatment and continued otherwise to work. Petitioner requested and was eventually granted the privilege of working a double shift only in those situations where he could take the next day off. In December of 2000, he requested that he be assigned to a perimeter post half of the time, and that he not be assigned to the chow hall or to guard sick inmates. Since Petitioner did not provide sufficient medical information to support the requested accommodation, it was denied. Respondent assigned Petitioner to be a "roving perimeter officer" on June 18, 2001. These officers observe the secure perimeter of the facility to ensure that no unauthorized entry into or out of the facility takes place. Each officer on this assignment is issued a shotgun, revolver and a motor vehicle. Each officer has a specific part of the perimeter fence to guard. Petitioner, as a result of medication he takes for his condition, experienced an urgent need to defecate, and left his post after calling for a replacement. As a consequence, Petitioner was thereafter assigned duty only where he would have immediate access to bathroom facilities. Petitioner provided documentation from his health care provider to Respondent indicating that Petitioner could work any post in the facility subject to certain qualifications. He should be given 16 hours' advance notice of the assignment to permit him to plan his medication schedule if he were assigned to the perimeter or other station where bathrooms were not readily available. Additionally, Petitioner was to be relieved within nine minutes of requesting a needed bathroom break. Petitioner also needed to have constant access to cold water and not be subjected to temperatures in excess of 90 degrees for more than an hour. As a result of his special needs, Petitioner remained assigned mainly to inside posts. He meets all requirements to work in the TCI observation towers, which have bathroom facilities and are climate controlled. He is assigned to such a tower one day per week. Respondent will not provide Petitioner 16 hours' notification of a future assignment so as to permit him to schedule his medication in such a way as to avoid urgent bathroom usage. Further, Respondent will not provide relief within nine minutes so that Petitioner can use the restrooms when necessary. Petitioner is generally assigned by Respondent to dormitory duty with the exception of tower duty one day per week. The dormitory is air-conditioned, but such assignment is stressful, fatiguing, and could adversely affect Petitioner's physical condition of lymphoma which is presently in remission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 22nd day of April, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 22nd day of April, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Lawrence A. Lopenski 2482 Barbarossa Avenue Deltona, Florida 32524 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The initial Petitions for Administrative Hearing were filed on October 4, 1991. The Petitions were filed by Ervin James Horton. In the Petition filed in case number 91-6345R, Rules 33-3.005, 33- 3.0051, 33-3.0083(5)(i), Florida Administrative Code, I.O.P. P13.91.34, I.O.P. P14.91.25 and Post Order 46 were challenged. In the Petition filed in case number 91-6346R, Rules 33-22.001, 33- 22.002, 33-22.003, 33-22.008, 33-22.012, and 33-3.005, Florida Administrative Code, were challenged. The rules challenged by the Petitioner are titled "Legal Documents and Legal and Privileged Mail" (Rule 33-3.005), and "Copying Services for Inmates" (Rule 33-3.0051). Chapter 33-22, Florida Administrative Code, provides rules governing "Inmate Discipline." Rule 33-3.0083(5)(i), Florida Administrative Code, does not exist. The I.O.P's apparently deal with the same general subjects as the Challenged Rules. The Petitions include the use of legal terms and phrases with little in the way of factual explanation. Although the Petitions contain some "legalize", they do not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of several employees of the Respondent relating to a variety of alleged incidents involving the Petitioner. In case number 91-6345R, the Petitioner complained of alleged incidents involving denial of his copying and mail privileges. The Petitioner argued that his access to the courts and his ability to carry out contracts have been impaired by the actions of employees of the Respondent in enforcing the Challenged Rules. In case number 91-6346R, the Petitioner complained of several alleged incidents involving disciplinary actions taken against him pursuant to Chapter 33-22, Florida Administrative Code. The Petitioner argued that the application of Chapter 33-22, Florida Administrative Code, was improper. The incidents complained of by the Petitioner have allegedly been the subject of unsuccessful grievance proceedings. Having failed to obtain a favorable response to his grievances, the Petitioner is seeking through this process to have the incidents reviewed. The Petitioner's allegations concerning the alleged incidents are not merely allegations intended to prove the Petitioner's standing to institute this proceeding. The Petitioner is complaining about, and seeking review of, alleged actions of the Respondent. The Petitioner has also attempted to raise constitutional arguments to support his challenges. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rules are unconstitutional. Insufficient alleged facts concerning why it is believed that the specific requirements or provisions of the Challenged Rules are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petitions and the Amended Petition. On November 14, 1991, an Order Granting Motions to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. On November 21, 1991, the Petitioner filed a Motion for Enlargement of Time to Comply to Order to Amend. The Petitioner, however, also filed an Amended Petition in these cases on the same day. The Amended Petition is very similar to the Petitions and suffers from the same deficiencies. The Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petitions which, if proven, would support a determination that the Challenged Rules are invalid under Section 120.56, Florida Statutes. On December 9, 1991, an Order Concerning Motion for Enlargement of Time and Granting Motion to Dismiss Amended Petition was entered. Pursuant to this Order the parties were informed the Amended Petition was dismissed and were given an opportunity to file proposed final orders. On December 11, 1991, the Petitioner filed Petitioner's Motion to File a [sic] Amended Petition or Second Amendmet [sic]. This motion was denied by Order entered December 18, 1991. On December 13, 1991, the Petitioner filed a Motion to Correct Order and, or Alternative Relief. This motion was denied by Order entered December 16, 1991. The Petitioner has challenged Rules 33-3.005, 33-22.001 and 33-22.003, Florida Administrative Code. See Horton v. Department of Corrections, 9 F.A.L.R. 2270 (DOAH Case No. 86-4515R 1987) and Horton v. Department of Corrections, 10 F.A.L.R. 5254 (DOAH Case No. 87-2908R 1988).
The Issue The issues in this proceeding are whether Petitioner has standing to challenge an unwritten rule and a proposed rule and, if so, whether either rule is an invalid exercise of delegated legislative authority within the meaning of Subsections 120.56(4) and 120.56(1), Florida Statutes (2005), respectively.
Findings Of Fact Respondent is the state agency responsible for administering the Florida Retirement System (FRS). From June 1, 1994, through the present (the uncontested period), Petitioner has been employed by Martin County, Florida (Martin County), as a firefighter and has been a member of the Special Risk Class of the FRS pursuant to the firefighter criteria in Subsection 121.0515(2)(b), Florida Statutes (2005). In 1999, the legislature added Subsection 121.0515(2)(d), Florida Statutes (1999), to include in the Special Risk Class those employed as an emergency medical technician (EMT) by a licensed Advance Life Support (ALS) or Basic Life Support (BLS) employer. In 2000, the legislature authorized those employed as an EMT by an ALS or BLS to upgrade prior creditable service earned as an EMT.1 Sometime in December 2004, Petitioner requested credit for prior service with Martin County that Petitioner rendered as an "EMT/Ocean Lifeguard" from February 26, 1989, through May 31, 1994 (the contested period). In a Final Summary Order issued on April 19, 2006, Bennett Richardson v. Division of Retirement, Case No. R-04-03631-MIA (hereinafter, "Richardson I), Respondent denied the request on the ground that the identical issue had been fully litigated on October 15, 2001, and a final order denying the request was issued on January 3, 2002, in Beckett et al. v. Division of Retirement, Case No. ROO-67-MIA (hereinafter, "Beckett"). The Final Summary Order issued in Richardson I is currently on appeal to the Fourth District Court of Appeal.2 On February 3, 2006, Petitioner filed a petition challenging an agency statement by Respondent as a rule that had not been adopted in accordance with rulemaking procedures in violation of Subsections 120.54(1)(a) and 120.56(4), Florida Statutes (2005) (unwritten rule). The agency statement emerged during the deposition of an employee of Respondent on January 20, 2006. On March 28, 2006, the undersigned stayed the challenge to the unwritten rule because Respondent proceeded to rulemaking pursuant to Subsection 120.56(4)(e), Florida Statutes (2005) (the proposed rule). On May 26, 2006, Petitioner filed a petition challenging the proposed rule pursuant to Subsection 120.56(2), Florida Statutes (2005). On June 7, 2006, the undersigned rescinded the previous stay on the ground that the proposed rule addresses a statement that is different from the statement in the unwritten rule. The undersigned consolidated the two rule challenges on June 19, 2006. Petitioner has standing in each of the rule challenges in this proceeding. The interests of Petitioner during the contested period are within the zone of interests the legislature seeks to protect. Petitioner's interests during the contested period are evidenced by organizational charts maintained by Petitioner's employer. Respondent relies, in relevant part, on organizational charts of employers to determine whether applicants for membership in the Special Risk Class satisfy relevant statutory criteria. From the beginning of the contested period through the present, Petitioner has been employed by the Emergency Services Department of Martin County. The Emergency Services Department includes the Fire Rescue Division, in which Petitioner was employed during the uncontested period, as well as the Marine Safety Division, in which Petitioner was employed during the contested period.3 Petitioner's interests during the contested period are evidenced by his job title. Respondent relies, in relevant part, on job titles in position descriptions to determine whether applicants for membership in the Special Risk Class satisfy relevant statutory requirements. Petitioner's job title during the contested period was "EMT/Ocean Lifeguard." Prior to the contested period, Petitioner's job title was limited to "Lifeguard." From the beginning of the contested period through the present, Petitioner has been employed by the Emergency Services Department of Martin County as a certified EMT in compliance with relevant criteria in Subsection 121.0515(2)(d), Florida Statutes (2005).4 Petitioner's interests during the contested period are evidenced by the job description for the job title Petitioner held during the contested period. Respondent relies, in relevant part, on job descriptions developed by employers to determine whether applicants for membership in the Special Risk Class satisfy relevant statutory criteria. A major function of the job Petitioner performed during the contested period was to provide: [S]killed protection of the lives, health, safety and welfare of the public by providing pre-hospital emergency medical care including injury and drowning prevention on Martin County beaches. Petitioner's Exhibit 7. The refusal to provide on-site emergency medical care during the contested period was a ground for disciplinary action against Petitioner. The job description required physical strength and agility sufficient to perform rescue and medical duties. Those job requirements fall within the scope of legislative intent in Subsection 121.0515(1), Florida Statutes (2005). The agency's denial of membership in the Special Risk Class affects the substantial interests of Petitioner by limiting the annual retirement benefit calculator (multiplier) to 1.6 percent annually. Membership in the Special Risk Class during the contested period would increase the annual multiplier to 3.0 percent. The agency statement challenged as an unwritten rule is evidenced in the deposition testimony obtained during discovery in Richardson I and in a written memorandum issued by Respondent. The agency states that the statutory provision in Subsection 121.0515(2)(d), Florida Statutes (2005), which requires the primary duties and responsibilities of an EMT to include on-the-scene emergency medical care, is not satisfied unless 50 percent or more of the duties performed by an EMT are on-the-scene emergency medical care (the 50 percent rule). The challenged agency statement is a rule within the meaning of Subsection 120.52(15), Florida Statutes (2005). The statement satisfies the requirement of "general applicability." The agency applies the statement to determine whether any applicant satisfies the criteria in Subsection 121.0515(2)(d), Florida Statutes (2005). Respondent has applied the statement in all such applications through the date of the hearing. The agency statement "implements, interprets, or prescribes" the statutory criteria in Subsection 121.0515(2)(d), Florida Statutes (2005), within the meaning of Subsection 120.52(8), Florida Statutes. The agency statement does not fall within any exception prescribed in Subsection 120.52(8)(a)-(c), Florida Statutes (2005). The agency statement was not adopted by rulemaking procedures in violation of Subsection 120.54(1)(a), Florida Statutes (2005). Respondent stipulated during the formal hearing that the 50 percent rule was not addressed in the proposed rule. The proposed rule and the 50 percent rule are substantially similar statements within the meaning of Subsection 120.56(4)(e), Florida Statutes (2005). Both rules establish a quantitative or numerical standard for determining whether the primary duties and responsibilities of an EMT include on-the-scene emergency medical care. The proposed rule would add the following language to Florida Administrative Code Rule 60S-1.0059(2): Whenever the term "primary duties and responsibilities" is used in Rule 60S-1.0051, 60S-1.0052, 60S-1.0053, or 60S-1.00535, F.A.C., it means those duties of a position that: Are essential and prevalent for the position and are the basic reasons for the existence of the position; Occupy a substantial portion of the member's working time; and Are assigned on a regular and recurring basis. Duties and responsibilities that are of an emergency, incidental, or temporary nature are not "primary duties and responsibilities." The law implemented by the proposed rule includes Section 120.0515, Florida Statutes (2005). The requirements that on-the-scene emergency medical care must be "prevalent" and "occupy a substantial portion of the member's working time" are substantially similar statements to the unwritten 50 percent rule. Both impose quantitative standards to determine whether on-the-scene emergency medical care is a primary duty or responsibility of an EMT. Quantitative standards in the proposed rule and the unwritten rule enlarge or modify the specific provisions of the law implemented within the meaning of Subsections 120.52(8)(c) and 120.57(1)(e)2.b., Florida Statutes (2005). The law implemented adopts a qualitative standard for determining whether on-the-scene emergency medical care is a primary duty or responsibility of an EMT. The plain and ordinary meaning of the term "primary" requires on-the-scene emergency medical care to be the "principal" duty or responsibility; or the "first or highest in rank, quality, or importance." The American Heritage Dictionary of the English Language, at 1393 (4th ed. 2000; Houghton Mifflin Company). On-the-scene emergency medical care was a principal duty of first importance that Petitioner was required to perform during the contested period, irrespective of whether he performed those duties 50 percent of his workday; irrespective of whether those duties were "prevalent" each day; and irrespective of whether on-the-scene emergency medical care occupied a "substantial portion of the member's working time" each day. The record discloses no evidentiary basis for deference to agency expertise that would justify a departure from the plain and ordinary meaning of the term "primary." Rather, the record shows that Respondent effectively grafted onto the proposed rule quantitative standards in federal regulations applicable to certain federal employees as a means of defining and implementing the term "primary duties" in the state law criteria prescribed in Subsection 121.0515(2)(d), Florida Statutes (2005).5 The legislature adopted a quantitative standard for determining membership in the Special Risk Class in Subsection 121.0515(2)(f), Florida Statutes (2005). In relevant part, the legislature required anyone seeking membership under that provision to "spend at least 75 percent of his or her time" performing qualifying duties. The legislature could have adopted a similar quantitative standard in Subsection 121.0515(2)(d), Florida Statutes (2005), but did not do so. The quantitative provisions in the proposed rule and unwritten 50 percent rule would effectively amend or modify the relevant statutory criteria in Subsection 121.0515(2)(d), Florida Statutes (2005), by imposing a quantitative standard similar to that in Subsection 121.0515(2)(f), Florida Statutes. The proposed rule excludes emergency services from the definition of "primary duties and responsibilities." That exclusion modifies or contravenes the statutory requirement that primary duties and responsibilities of an EMT must include "emergency" medical care.
Findings Of Fact The initial Petition for Administrative Hearing was filed on November 8, 1991. The Petition was filed by Ervin James Horton. In the Petition Rule 2-1.007, Florida Administrative Code and "[a]ny and (all) State Attorney memorandums, statements, policy, rules, directive, consistent to this practice" were challenged. The Challenged Rule deals with the issuance of Attorney General opinions. The Petition is, to say the least, confusing. This confusion is caused by the Petitioners frequent use of legal terms and phrases with little in the way of factual explanation. The confusion is also caused by the failure of the Petitioner to actually be challenging the Challenged Rule. Although the Petitioner contains some "legalese", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the alleged failure of the State Attorney of the Eighth Judicial Circuit to take action against employees of the Department of Corrections and the failure of the Attorney General of the State of Florida to do anything about it. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rule. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rule is unconstitutional. Insufficient alleged facts concerning why it is believed that the Challenged Rule is an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. On December 4, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. On December 23, 1991, an Amended Petition was filed by the Petitioner. The Amended Petition consolidated the Petitioner's challenges in this case and case number 90-7189R. The Amended Petition is very similar to the Petition and suffers from the same deficiencies. Additionally, the Petitioner includes the Department of Corrections, the Respondent in case number 91-7189R, as a Respondent and addresses his challenge to other rules, internal operating procedures and directives of the Department of Corrections. The Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the Amended Petition which, if proven, would support a determination that the Challenged Rule or the other materials challenged in the Amended Petition are invalid under Section 120.56, Florida Statutes. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.
