The Issue The issue in this case is whether rule 6A-4.0021(6)(c)1. is invalid because Respondent exceeded its grant of rulemaking authority, as alleged by Petitioner.
Findings Of Fact Section II of the Revised Consolidated Petition is the portion of the pleading directed to the Rule Challenge. The entire Rule Challenge section is set forth verbatim here: The Department's Adoption of a Rule Broadly Limiting Time to Complete an Exam Exceeds its Grant of Legislative Authority Section 120.52(8)(b) provides that a rule is an invalid exercise of delegated legislative authority if "the agency has exceeded its grant of rulemaking authority." An agency may only adopt rules that implement or interpret the specific powers and duties granted by the enabling statute. Rules are required to identify the specific authority for adopting a rule, and the specific law being implemented. Rule 6A-4.0021, FAC identifies §§1012.55(1) and 1012.56, Fla. Stat. as its rulemaking authority and as the law being implemented. Both statutes relate to the issuance of teacher certifications, not to the criteria for admission to upper-level teaching programs leading to a bachelor's degree. To the extent that the rule applies to students taking the general knowledge portion of the FCTE to obtain admission to a bachelor's degree program, the rule would be implementing §1007.265, Fla. Stat., regarding alternative standards for admission to upper-division classes for students with disabilities. In order to meet the criteria established in that section, the rule would need to allow alternative admission requirements if the failure to meet the initial requirement is related to a disability and the revised requirement would not constitute a fundamental alteration in the nature of the program. §1007.265, Fla. Stat. The Department of Education, by adopting a rule that limits all test takers, regardless of the extent or type of their disability, to double the normal amount of time to complete an exam, has exceeded the authority granted by the legislature. The DOE has not and cannot show that allowing an applicant with a severe vision deficit additional time (beyond double the normal amount of time) would fundamentally alter the admissions criteria for upper-level education classes. By setting such a limited rule, a rule that allows no consideration of an applicant's type or degree of disability, the DOE has established an arbitrary rule that contravenes the very law it is attempting to implement - the law requiring alternative standards for disabled students. As noted in the Preliminary Statement, the initial Rule Challenge Petition filed with DOAH alleged only that the challenged rule, either facially or as interpreted and applied by Respondent, was inconsistent with the ADA. Petitioner was, thereafter, afforded an opportunity to amend the Petition in response to the Show Cause Order suggesting that the initial Petition did not meet the pleading requirements for a section 120.56 rule challenge. In response, Petitioner filed the Revised Consolidated Petition that removed the contention that the rule was being challenged based on its inconsistency with the ADA and added the Rule Challenge allegations that are set out verbatim in Finding of Fact 1 above. As Finding of Fact 1 demonstrates, the new premise of Petitioner's Rule Challenge in the Revised Consolidated Petition is that rule 6A-4.0021(6)(c)1. is invalid because it exceeds the grant of legislative rulemaking authority in section 1007.265, Florida Statutes, a statute that was neither cited as authority for the challenged rule nor cited as the law implemented by the challenged rule.
