Findings Of Fact Respondent, Invarrary Retirement Center, Inc. (IRC), is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), to operate an adult congregate living facility (ACLF). The facility operates under the name of Inverrary Retirement Center at 5811 Northwest 28th Street, Lauderhill, Florida. On or about April 4, 1984, two HRS inspectors performed a routine relicensure survey of IRC. The purpose of the survey was to determine whether IRC was complying with all HRS requirements relating to record keeping, sanitation, fire and safety. During the course of the survey, the inspectors noted the following violations of HRS rules: There was no staff member within the facility at all times who was certified in an approved first aid course (Rule 10A- 5.19(5)(f), F.A.C.); The facility failed to keep "current" records of self administered medication (Rule 10A-5.18(6)(f), F.A.C.); Menus were not planned and posted where they could be easily viewed by the residents (Rule 10A-5.20(1)(j), F.A.C.); The kitchen was not equipped with an approved exhaust hood over the stove (Rule 10A-5.23(15)(a), F.A.C.); An electrical extension cord was used to service the coffee maker (Rule 10A- 5.23(15)(a), F.A.C.); One of the buildings had an insufficient means of egress for the residents (Rule 10A- 5.23(15)(a), F.A.C.); There were no manually operated fire alarms capable of being heard throughout the facility (Rule 10A-5.23(15)(a), F.A.C.); Respondent failed to provide documenta- tion reflecting the smoke detectors were tested on a weekly basis (Rule 10A- 5.23(15)(a), F.A.C.); and (j) There was a sliding bolt on an exit door on one of the buildings (Rule 10A- 5.23(15)(a), F.A.C.). All of the foregoing constituted a separated violation of HRS rules. 1/ When the survey was completed, the inspectors reviewed all violations with IRC's manager and advised her that a resurvey would be taken in about thirty days, and that all violations must either be corrected by that time, or some action instituted which reflected an intent on the part of the facility to correct the same. This was in accordance with HRS policy governing ACLFs, and approximated the time given other facilities to make similar corrections. On April 10, 1984, a Corrective Action Plan was issued by HRS and sent to IRC. This document set out in detail the various violations found in the April 4 inspection and set a compliance date of May 4, 1984 for all corrections to be made. A resurvey of IRC's facility was made by the same two HRS inspectors on May 18, 1984. With the exception of item (3)(h), which required documentation verifying that smoke detectors be tested weekly, the inspectors noted that no corrections had been made. However, respondent presented evidence that items (3)(b) and (3)(c) had indeed been corrected by that date and such evidence is deemed to be more persuasive than contrary evidence offered by HRS representatives. Further, the violation in item (3)(f), and turns on whether an HRS publication or the City of Lauderdale fire code was controlling when the inspection was made. Because no evidence was presented to establish which standard was in effect, the allegation that an HRS publication was violated must fail. Accordingly, it is found that IRC failed to timely correct items (3)(a), (3)(d), (3)(e), (3)(h), (3)(i), and (3)(j) as required by the Corrective Action Plan. Respondent eventually made all corrections, although not within the HRS imposed deadline. One of the deficiencies [item (3)(d) required extensive renovations, including bids and a city permit, which took considerable time to accomplish. However, IRC's manager neglected to provide HRS inspectors with any evidence on the May 18 visit showing that bids were being solicited, or that there was any "movement" on the project. The same is true for item (3)(g) which required competitive bids from suppliers. IRC also failed to advise HRS that it could not immediately enroll an employee in the Broward County First Aid Course [item (3)(a)] because of the large number of participants in the class. IRC failed to do so even though its manager had been told that an extension on the May 4 deadline could be obtained where IRC gave some evidence to the inspectors that action was being instituted to correct the deficiency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating agency rules as set forth in items (3)(a), (3)(d), (3)(e), (3)(h), (3)(i) and (3)(j) of the administrative complaint, and that a $900 administrative fine be imposed, to be paid within thirty days after the data of the final order rendered in this proceeding. All other charges should be DISMISSED. DONE and ORDERED this 11th day of March, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1985.
Findings Of Fact Based upon the stipulation of the parties, the following facts are found: Respondent, (hereafter HRS) notified Petitioner (hereafter Starke) of a disallowance in Starke's Medicaid cost report by a letter which was received by Starke on October 4, 1983. The disallowance letter informed the Petitioner that pursuant to Rule 10-2.35, Florida Administrative Code, any request for a formal hearing must be "received by" HRS within 30 days or the hearing shall be deemed waived. Starke mailed its petition for formal hearing on November 3, 1983, a Thursday. The petition was received by HRS on November 7, 1983, a Monday. HRS denied Starke's petition for hearing on the grounds that the request for the hearing had not been received by HRS within 30 days of the date Starke received notice. The date by which the Petition had to be received was November 3, 1983. If HRS had allowed three (3) days for filing by mail, the petition would have been timely filed.
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 Petitioner Martin Keith Donaldson is the party respondent in what was originally styled State of Florida, Department of Health and Rehabilitative Services v. Donaldson, DOAH Case No. 83-2544, but which is presently styled State of Florida, Department of Professional Regulation, Board of Hearing Aid Specialists v. Donaldson, a license disciplinary proceeding. (Joint Stipulation (Petitioner's Exhibit 3)) The licensing and regulation of persons for the fitting and selling of hearing aids was a function of the Department of Health and Rehabilitative Services under Chapter 468, Part II, Florida Statutes, until July 1, 1983. At that time, those functions were transferred to a newly created seven-member Board of Hearing Aid Specialists within the Department of Professional Regulation by Chapter 83-153, Laws of Florida. The Act provided that the Board members were to be appointed by the Governor within 30 days after June 30, 1983, and confirmed by the Senate. Official records of the Department of State, Division of Elections, reflect that although seven Board members were appointed by the Governor, effective September 8, 1983, the Secretary of State certified that they were duly appointed members of the Board for terms beginning variously on dates from September 22, 1983, to October 7, 1983, subject to confirmation by the Senate during the regular session of the Legislature. (Petitioner's Exhibit 1) On September 28, 1983, a Certification of Administrative Rules was filed with the Department of State. The certification reflected that Proposed Emergency Rule 21JJER83-7 of the Florida State Board of Hearing Aid Specialists had been approved on September 27, 1983, and the certification was signed by Marcelle Flanagan, Executive Director. Attached to the certification was a Notice of Emergency Rule Adoption and the text of the emergency rule. The Rule stated as follows: 21JJ ER83-7 Probable Cause Determination The determination as to whether probable cause exists to believe that a violation of the provisions of Chapter 455 or 83-153, F.S., or the rules promulgated thereunder has occurred, shall be made by the Depart- ment of Professional Regulation. SPECIFIC AUTHORITY: Section 120.53 (1)(c), 455.225(3), F.S. LAW IMPLEMENTED: 455.225 (.3), F.S. HISTORY: New The Notice of Emergency Rule Adoption stated the basis for finding an immediate danger to public health, safety and welfare, as follows: Emergency Rule 21JJ ER83-7 estab- lishes the procedure for implementation of a probable cause panel. The 1983 Legislature has affirmed the need for licensing Hearing Aid Specialists and has expressly noted that unskilled and incompetent Hearing Aid Specialists present a danger to the public health and safety. The Legis- lature has also affirmed the need to protect the public through swift and effective discipline for those prac- titioners who violate the law. The Board must act on an emergency basis to establish the procedure for implementation for a probable cause panel to ensure that those Hearing Aid Specialists who present a danger by their continued practice in violation of Chapter 83-153, Laws of Florida, shall be quickly prosecuted. To delay the initiation of disciplinary proceedings would significantly endanger the pub- lic. Thus, in order to avoid this danger resulting from the time-consuming process of general rulemaking, the follow- ing Emergency Rule has been adopted which will terminate in ninety (90) days from September 7, 1983. The notice stated the date and time that the rule would be effective as September 27, 1983. (Testimony of Flanagan, Petitioner's Exhibit 5) The Board of Hearing Aid Specialists did not hold its first meeting until October 6, 1983. It had not approved the Emergency Rule on September 27, 1983, as reflected in the Certification of Administrative Rules. The Executive Director of the Board testified at the hearing that she was unaware as to who had approved the Emergency Rule, although-she speculated that the document that she had signed was given to her by a staff member of the Attorney General's Office. (Testimony of Flanagan, Petitioner's Exhibit 4) The notice of the adoption of Emergency Rule No. 21JJ ER83-7 was published in the Florida Administrative Weekly, Vol. 9, No. 40, on October 7, 1983, which stated the effective date of the Rule to be September 27, 1983. (Joint Stipulation [Petitioner's Exhibit 3], Petitioner's Exhibit 2) The Board of Hearing Aid Specialists held its initial and organizational meeting on October 6, 1983. During the meeting, an Assistant Attorney General asked the Board to adopt an Emergency Rule which would permit the Department of Professional Regulation to make probable cause determinations in cases arising under Chapter 455, Florida Statutes, and Chapter 83-153, Laws of Florida. He stated that at least seven cases had been transferred from the Department of Health and Rehabilitative Services and that the Department of Professional Regulation was anxious to avoid any undue delay in processing and resolving those cases. The Board was not informed that the emergency rule had been filed prior to October 6, 1983. The Board voted ". . . to follow the recommendation of counsel to promulgate the subject rule to allow the Department to determine probable cause for a period of 90 days." (Testimony of Flanagan, Petitioner's Exhibit 4) Pursuant to Emergency Rule 21JJ ER83-7, the Department of Professional Regulation found probable cause on or about October 14, 1983, to prosecute the Petitioner. (Joint Stipulation [Petitioner's Exhibit 3] , Respondent's Exhibit 1) Materials to be published in the Florida Administrative Weekly must be received by the Department of State on or before noon Friday, the week prior to publication. (Testimony of Flanagan)
The Issue The ultimate issue in this case is whether Respondents' proposed amendment to Florida Administrative Code Rule 6A-5.030, which would establish procedures and standards governing the submission, review, and approval (or disapproval) of each school district's instructional personnel and school administrator evaluation systems, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent Department of Education ("DOE") is the state agency responsible for administering and implementing educational policy under the direction and control of Respondent State Board of Education (the "SBE"), a collegial body consisting of seven members appointed by the governor. DOE and the SBE will be referred to collectively as "Respondents" except when it is necessary to identify a specific actor. On September 30, 2011, DOE caused a Notice of Development of Rulemaking to be published in the Florida Administrative Weekly ("FAW"), which announced the agency's intent to substantially amend Florida Administrative Code Rule 6B-4.010 so as to establish procedures for the submission, review, and approval of district evaluation systems in accordance with section 1012.34(8), Florida Statutes.1 DOE caused a second Notice of Development of Rulemaking to be published in the FAW on November 23, 2011. This notice informed the public that the procedures for the submission, review, and approval of district evaluation systems would be set forth in an amendment to rule 6A-5.030, instead of rule 6B- 4.010. In addition, three rule development workshops were scheduled to occur between December 12 and December 14, 2011. On February 24, 2012, a Notice of Proposed Rule was published in volume 38, no. 8, of the FAW, pages 804-07, https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2012/38 08/3808doc.pdf. The full text of proposed rule 6A-5.030 is included in this notice. Subparagraph (1)(a) of the proposed rule contains a statement that a document entitled "Review and Approval Checklist for Instructional Personnel and School Administrator Evaluation Systems, Form No. EQEVAL-2012" ("Checklist"), is incorporated by reference.2 (The published text of rule 6A-5.030 will be referred to as the "Rule Text" when necessary to distinguish between the Rule Text and any material incorporated by reference.) The Notice of Proposed Rule further advised that the rule would be presented to the SBE for its approval at a meeting on March 27, 2012. By letter dated March 16, 2012, the Joint Administrative Procedures Committee ("JAPC") provided comments on the proposed rule to DOE. On March 26, 2012, Petitioners filed a Petition to Invalidate Proposed Rule with DOAH. At the SBE meeting on March 27, 2012, which constituted the final public hearing on the proposed rule, DOE recommended that the proposed rule be revised to reflect JAPC's comments, and the SBE voted in favor of such revisions. The SBE approved nontechnical changes that modified both the Rule Text and the Checklist. Among the changes was the insertion into the Checklist of an incorporative reference to a document entitled "High Effect Size Indicators (2012)" ("HESI Document"). As a result of the SBE's action, proposed rule 6A- 5.030, as amended, comprises three separate documents: the amended Rule Text, the amended Checklist, and the HESI Document.3 Collectively, these three items will be called the "Rule." Respondents have not caused a notice of change concerning the Rule to be published in the FAW pursuant to section 120.54(3)(d), Florida Statutes. The documents which constitute the Rule can be found, however, online at Florida Department of Education, District Performance Evaluation Systems, http://www.fldoe.org/profdev/pa.asp (last visited Aug. 20, 2012). On March 30, 2012, Petitioners filed an Amended Petition to Invalidate Proposed Rule, which revised their original petition to take account of the changes to the Rule that had been made by the SBE on March 27, 2012.4 Petitioner Karen Peek ("Peek") is a teacher employed by the Okaloosa County School Board. During the 2011-12 school year, Peek taught Language Arts and Science to fifth-grade students who took the Reading and Math portions of the Florida Comprehensive Assessment Test ("FCAT"). A portion of Peek's performance evaluation for 2011-12 school year will be based upon her students' FCAT Reading scores according to the formula approved by the Commissioner of Education pursuant to section 1012.34(7), which formula is mentioned in the Checklist. The remainder of her performance evaluation rating will be based upon classroom observations. The Rule requires school districts to make significant changes in their personnel evaluation systems. These changes will affect the evaluation criteria that will be used to measure Peek's level of performance and determine whether she is rated highly effective, effective, needs improvement, or unsatisfactory. A rating of unsatisfactory could be grounds for dismissal. Petitioner Beth Weatherstone ("Weatherstone") is a teacher employed by the Indian River County School Board. During the 2011-12 school year, Weatherstone taught Algebra I to eighth-grade students who were tested on the Math portion of the FCAT during the school year. A portion of Weatherstone's 2011- 12 performance evaluation will be calculated using her Algebra I students' FCAT Math scores according to the formula referenced in the Checklist. The remainder of her performance evaluation rating will be based upon classroom observations conducted according to an evaluation system that will need to conform to the requirements of the Rule. The Florida Education Association (the "FEA") is a professional association of educators and education support employees which works with and through affiliated local unions around the state in representing public school teachers in collective bargaining. The FEA and its local affiliates represent approximately 135,000 member educators in Florida on all matters associated with the wages they earn and how their performance is assessed, in addition to other issues related to their working conditions.
Findings Of Fact Florida law requires that persons employed to serve in instructional capacities in the public schools hold valid certificates to teach. The Respondent, Florida Department of Education, is charged by statute with the responsibility of issuing such teaching certificates, and with the concomitant responsibility to suspend or revoke teaching certificates under appropriate circumstances. Sections 231.14 - 231.28, Florida Statutes. Purporting to act under authority of this statutory framework, the Respondent has adopted Rules 6A-4.37, and 6B-2.01 through 6B-2.17, Florida Administrative Code, as its rules establishing practices to be followed in suspending or revoking teaching certificates. The Respondent's rules establish a procedure whereby a teacher charged with conduct that would justify suspension or revocation of a teaching certificate is presented with the options of taking no action, which results in informal procedures at which the appropriate penalty is the only issue; or of requesting a hearing. If a hearing is requested, the teacher is permitted to choose between a hearing conducted by a Hearing Officer of the Division of Administrative Hearings as provided in Section 120.57(1), Florida Statutes, or a hearing conducted by a panel of the Professional Practices Council ("PPC" hereafter). Rule 6A-4.37(2) provides in pertinent part as follows: When the commissioner of education finds that probable cause exists, he shall direct a filing of a formal petition against the certificate holder for the revocation or suspension of a teacher's certificate, together with a form permitting waiver of a hearing officer pursuant to section 120.57(1), Florida Statutes, as hereinafter provided. If section 120.57(1), Florida Statutes, shall be waived by both the respondent and the chairman of the professional practices council by executing and filing the waiver form with the commissioner of education within twenty (20) days from service of the petition upon the respondent, the commissioner of education shall direct the chairman of the professional practices council to prosecute the matter before a hearing panel of three members of the professional practices council each of whom has not participated in nor was an informed party in any preliminary investigation of the cause. If section 120.57(1) Florida Statutes, is not waived by the parties, the matter shall be prosecuted before a hearing officer of the division of administrative hearings. The professional practices council may retain an attorney to prosecute the cause. The professional practices council may retain a different attorney to advise the hearing committee and act as a law officer for said committee. On completion of the hearing as hereinafter set forth, the hearing panel or officer, shall transmit through the commissioner of education to the state board of education a transcript of the proceedings and a report, which shall contain specific findings of fact, conclusions of law, interpretations of rules and a recommended order. The state board of education shall review the transcript of testimony and the report. The waiver form utilized is as follows: WAIVER OF RIGHT TO A HEARING BEFORE A HEARING OFFICER OF THE DIVISION OF ADMINISTRATIVE HEARINGS IN PREFERENCE TO A HEARING BEFORE A PANEL OF THE PROFESSIONAL PRACTICES COUNCIL In the matter of the revocation of the teaching certificate of and pursuant to the provisions of 120.57, Florida Statutes, I hereby waive my right to a hearing before a hearing officer of the Division of Administrative Hearings. In the alternative I do hereby request that this matter be heard before a panel of professional educators from the membership of the Professional Practices Council as provided in 6A-4.37, Rules of the State Board of Education. DATE RESPONDENT The remaining paragraphs of 6A-4.37 delineate specific procedures to be followed whether the hearing is conducted by a Hearing Officer, or by a PPC panel. The rule was adopted at a May, 1977 meeting of the State Board of Education. Prior to its adoption, public hearings were conducted, and members of the public, including the Petitioner, were allowed an opportunity to comment. The Joint Administrative Procedures Committee of the Florida Legislature reviewed the rule. The rules set out at Chapter 6B-2.01 through 6B-2.16, Florida Administrative Code, establish additional procedures for public hearings conducted by the PPC. These rules pertain to teaching certificate suspension or revocation proceedings and to other matters. They are in large part inconsistent with the provisions of Rule 6A-4.37, and with the Administrative Procedure Act (Ch. 120, Florida Statutes). The rules are no longer followed by the PPC except those provisions which relate to the appointment of a law officer to aid a PPC panel in conducting hearings. The Respondent has been in the process of revising these rules for more than one year. Rule 6B-2.17 relates to probable cause hearings to be conducted by an executive committee. The rule is somewhat vague, but it appears to relate to proceedings under Section 231.57, Florida Statutes, rather than teaching certificate suspension or revocation proceedings. The rule does not relate to the issue of whether a final hearing will be conducted by a Hearing Officer of the Division of Administrative Hearings, or a panel of the PPC. During 1977, three-member PPC panels conducted thirteen hearings in teaching certificate suspension or revocation proceedings. Fourteen such hearings were conducted by Hearing Officers. During 1978, eighteen were conducted by PPC panels, and eleven by Hearing Officers. The Petitioner, Florida Education Association/United AFT-AFL-CIO, is a statewide organization composed of persons involved in the field of education. The members are primarily teachers. The Petitioner is a confederation of local affiliates. Its local affiliates serve as collective bargaining representatives for teachers in approximately half of the local school districts in Florida. Among the Petitioner's functions are to protect its members, and members of the teaching profession with respect to the terms and conditions of their employment as teachers. The Petitioner provides services which local affiliates are largely unable to perform, including legal assistance and lobbying assistance. In many instances the Petitioner provides legal counsel to its members in connection with teaching certificate suspension or revocation proceedings. At the Petitioner's October, 1978 convention, its members authorized Petitioner's executive council to examine the status of the PPC, and to take steps to clarify the role of the PPC. The instant rule challenge was authorized by the executive council in accordance with that mandate of the membership. There are approximately 90,000 teachers in Florida. The Petitioner represents approximately 30,000 of them.
Findings Of Fact The initial Petition for Administrative Review was filed on August 22, 1991. The Petition was signed by Donald Eugene Halpin and Jeffery Lynn Fowler. The Petition, which was purportedly also filed by Richard Edward Jackson, was not signed by Mr. Jackson. In the Petition Mr. Halpin and Mr. Fowler challenged Rule 33-3.04(9), Florida Administrative Code. The Challenged Rule provides, in pertinent part: . . . The return address of all outgoing mail must contain the inmate's committed name, identification number and institutional address. The institutional name in the return address must be spelled out completely with no abbreviations. It was alleged in the Petition that the Challenged Rule is "arbitrary or capricious in its application." The Petition also contained an allegation that the Challenged Rule provides "no legitimate or compelling purpose when weighed against its adverse effect on Petitioners and their family and friends." Throughout the Petition it was alleged that there are "less restrictive forms the Respondent could employ to accomplish [its] goal . . . ." In this regard, the Petition contains the following allegation: 11. Petitioners have no qualms with the Respondent informing those individuals they write that they are state correctional inmates. However, Petitioners do object to the manner in which Respondent implements this restrictive measure. There is a much less restrictive means to accomplish the same objective, i.e., letting individuals know they are receiving letters from state correctional inmates. As the rule stands now, it is arbitrary or capricious as applied to the Petitioners. No 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)(d), Florida Statutes, were included in the Petition. Finally, the following relief was requested and the following statement was made in closing: WHEREFORE, Petitioners respectfully move the Division of Administrative Hearings to declare Chapter 33-3.04 to be arbitrary or capricious in its application. Furthermore, Petitioners reserve the right to proffer First and Fourteenth Amendment violations during any administrative hearings [sic] or motions for rehearing for appellate purposes. On November 1, 1991, an Order Granting Motion to Dismiss with Leave to Amend was entered. On December 2, 1991, a pleading titled "Amended Petition for Administrative Review" was filed by Mr. Halpin and Blanche Moseley with the case number of this case identified as the case that the pleading was being filed in. Through the Amended Petition Mr. Halpin and Ms. Moseley attempted to initiate the following challenge: Petitioners, Donald E. Halpin and Blanche Moseley, file their Amended Petition for Administrative Review, pursuant to Chapter [sic] 120.52(8)(d)(e), 120.56 and 120.57, Florida Statutes, to challenge Rule 33-3.004, Florida Administrative Code . . . . . . . . 4. Petitioners file this action pursuant to Chapter [sic] 120.52(8)(d)(e), 120.56 (Halpin being a State Prisoner must utilize Section 120.56) and 120.57 (Ms. Moseley being a free citizen will utilize Section 120.57), Florida Statutes. Petitioners will allege Chapter [sic] 33-3.04, F.A.C., is vague, vest unbridled discretion in the agency, and is arbitrary or capricious in its application. Furthermore, Petitioner Moseley would allege Chapter [sic] 33-3.04, F.A.C., violates the First, Eighth and Fourteenth Amendment guarantees to the United States Constitution. It is further alleged under the "Conclusion" section of the Amended Petition that Ms. Moseley's challenge is based upon Section 120.54, Florida Statutes, although no proposed rule or rule amendment has been challenged in the Petition or Amended Petition. In support of the allegation that the Challenged Rule is vague, it is alleged in the Amended Petition that the Challenged Rule "does not set forth why the public must be protected, e.g., the types of crimes committed by inmates, the number of inmates who violated U.S. Mail regulations, and how other crimes were committed by inmates through U.S. Mail." In support of the allegation that the Challenged Rule vests unbridled discretion in the Respondent, it has been alleged in the Amended Petition that the Challenged Rule is only intended as punishment--by informing those who come in conduct with an inmate's mail that the mail is from someone who is in prison. Several allegations are also included in the Amended Petition concerning how Ms. Moseley's constitutional rights are being violated by the Challenged Rule. The Amended Petition is devoid of any 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 is invalid under Sections 120.54 or 120.56, Florida Statutes. Mr. Jackson and Mr. Fowler did not file an amended petition.
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.
Findings Of Fact Petitioner is a permanent Career Service employee of the Department of Offender Rehabilitation (DOR), State of Florida, who was serving as a Planner and Evaluator II, Class Code 5291, Position No. 04038, Planning and Development Section, Bureau of Planning, Research and Statistics, in July, 1977. (Composite Exhibit 3) The 1977 Florida Legislature reduced the number of authorized positions in the DOR through "productivity adjustment," effective July 1, 1977. By letter of July 26, 1977, the Secretary of the DOR requested the Secretary of Administration to approve a statewide competitive area for the positions to be abolished. By letter of July 27, the Secretary of Administration approved the requested competitive area to include all organizational units on a statewide basis within the Department. At that time, the DOR had four positions in the class of Planner and Evaluator II. These were then held by Petitioner, Sunil Nath, Position 00053, Edward M. Teuton, Position 07974, and Bill C. Schnitzer, Position Number 03756. All of these positions except Position 07974 were abolished as a result of the legislative mandate. The incumbents of the four positions met with Mr. James A. Ball, DOR Personnel Officer, on or about July 28, 1977. At that time, he informed them of the position deletions and consequent necessary layoffs. Ball indicated in his comments to the group that the Petitioner would not be adversely affected because he had the greatest number of retention points of the four individuals. It was further indicated by Ball to Petitioner at this meeting and in later discussions that Petitioner would assume the duties of the remaining Position 07974 and proceed to "phase in" to the job. By letters dated August 5, 1977, Nath, Teuton and Schnitzer were notified by the Secretary of the DOR of their layoff under State Personnel Rule 22A-7.11, and advised of their options and rights under pertinent law. (Composite Exhibits 1-4, Testimony of Ball, Fitzgibbon) By letter of August 31, 1977, to the State Personnel Director, the Secretary of the DOR requested that selective competition be approved under State Personnel Rule 22A-7.11(3) for the position of Planner and Evaluator II, DOR, Class Code 5291, Position Number 07974, among persons affected by layoff in the Department. The letter stated: The specific background necessary to perform the job requirements of this unique position of Mutual Participation Program Administrator are reflected below and relate directly to the duties of the position as reflected on the official Position Description, a copy of which is attached. The letter further indicated the particular qualifications for the position. The Position Description attached to the letter set forth the duties and responsibilities of the job, but did not specify particular qualifications required of the incumbent. Conley M. Kennison, State Personnel Director, in a letter of September 8, 1977, approved selective competition for the position in question "In accordance with Section 22A-7.11(3), Personnel Rules and Regulations, F.A.C., and based on the specific qualifications required of this position to function as the coordinator for the Mutual Participation Program as substantiated by the Position Description you submitted." The concept of selective competition for a position arises only in layoff situations. Under normal layoff procedures, an employee's number of retention points computed under Rule 22A-7.11 determines priority for available remaining positions. However, if selective competition is used, only those employees possessing the special qualifications for a particular position are eligible to compete therefor, and if several have the necessary qualifications, the employee with the highest retention points is selected. Approval for selective competition is based on special qualifications that must be derived from the official Position Description. In such cases, an economic impact statement is not prepared nor are the normal procedures for promulgation of a rule. Neither are Position Descriptions promulgated as rules under Chapter 120, Florida Statutes. Minimum qualifications for a particular class of positions are set forth in separate documents called Class Specifications. Position Descriptions are prepared by the affected agency and approved by the Department of Administration. In the instant case, the Deputy State Personnel Director approved selective competition for Position 07974 based upon qualifications considered necessary from the duties and responsibilities shown in the Position Description. (Composite Exhibit 2, Testimony of Dean) After approval had been obtained for selective competition for Position 07974, it was determined by DOR that only Edward M. Teuton, the incumbent of that position, possessed the necessary qualifications. As a result, Petitioner, who had no prior knowledge that selective competition was to be applied, was orally informed by his supervisor on September 13 or 14 that he would not receive the position and that Teuton would retain the same. On September 19, he received a letter dated September 14, 1977, from the Secretary of the DOR, which provided formal notice of layoff, and informed him of his right to appeal such action and to request demotion or reassignment to a position for which he might be eligible. He thereafter appealed the layoff and requested demotion in lieu thereof based on information received from the Department Personnel Officer who told him that he would have to take such action in order to retain state employment. (Composite Exhibit 4, Testimony of Petitioner)
