00-000364RP Bink F. Williams vs. Department Of Health
 Status: Closed
DOAH Final Order on Wednesday, April 19, 2000.


View Dockets  
Summary: Department of Health has the authority to adopt a rule requiring that body piercers wear sterile gloves.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8BINK F. WILLIAMS, )

12)

13Petitioner, )

15)

16vs. ) Case No. 00-0364RP

21)

22DEPARTMENT OF HEALTH, )

26)

27Respondent. )

29__________________________________)

30FINAL ORDER

32Pursuant to notice, a final hearing was held in this case

43on March 20, 2000, at Tallahassee, Florida, before Claude B.

53Arrington, a duly-designated Administrative Law Judge of the

61Division of Administrative Hearings.

65APPEARANCES

66For Petitioner: Bink F. Williams, pro se

735163 Velda Dairy Road

77Tallahassee, Florida 32308

80For Respondent: Richard P. McNelis, Esquire

86Department of Health

89Bin A02

912020 Capital Circle, Southeast

95Tallahassee, Florida 32399-1703

98STATEMENT OF THE ISSUE

102Whether Respondent exceeded its statutory authority by

109requiring use of disposable sterile medical gloves during body-

118piercing procedures. 1/ The rule at issue is Rule 64E-

12819.006(2), Florida Administrative Code.

132PRELIMINARY STATEMENT

134Prior to the beginning of the final hearing, the parties

144stipulated to certain facts, which have been adopted by the

154undersigned in the findings of fact portion of this Final Order.

165Some of those stipulated facts have been adopted verbatim while

175others have been reworded.

179Petitioner argued his position in this matter and cross-

188examined the witnesses called by Respondent, but he did not

198testify or present any exhibits.

203Respondent called as witnesses Leslie Harris and Dr. Landis

212Crockett, both of whom are employed by Respondent. Mr. Harris

222coordinated the drafting of the rule at issue in this

232proceeding. Dr. Crockett is a medical doctor who was allowed to

243express opinions within the scope of his expertise. Respondent

252offered five exhibits, each of which was admitted into evidence.

262Petitioner stipulated to the admissibility of each of these

271exhibits.

272No transcript of the proceedings has been filed.

280Respondent filed a Proposed Final Order, which has been duly-

290considered by the undersigned in the preparation of this Final

300Order. Petitioner did not file a post-hearing submittal.

308FINDINGS OF FACT

3111. Chapter 99-176, Laws of Florida, created Section

319381.0075, Florida Statutes, to regulate body-piercing. Section

326381.0075(1), Florida Statutes, provides as follows:

332(1) Legislative intent.--It is the

337intent of the Legislature to protect the

344health, safety, and welfare of the public

351from the spread of infectious diseases from

358practices that prick, pierce, or scar the

365skin and therefore, to that end, to regulate

373body-piercing salons.

3752. Respondent is the agency of the State of Florida

385charged with licensing and regulating body-piercing pursuant to

393Section 381.0075, Florida Statutes.

3973. Section 381.0075(2), Florida Statutes, provides certain

404definitions, including the following:

408(j) "Sanitization" means the effective

413bactericidal treatment of surfaces of

418equipment and devices by a product

424registered by the United States

429Environmental Protection Agency which

433provides a sufficient concentration of

438chemicals and enough time to reduce the

445bacterial count, including pathogens, to a

451safe level.

453(k) "Sterilization" means the use of

459procedures that destroy all microbial life,

465including viruses, on the equipment or

471device. . . .

4754. Section 381.0075(11), Florida Statutes, sets forth

482requirements for the operation of body-piercing salons,

489including the following:

492(11) Body-piercing salons; specific

496requirements.--

497(a) A body-piercing salon must:

5021. Properly sterilize all instruments

507that pierce the skin, directly aid in

514piercing the skin, or may come in contact

522with instruments that pierce the skin,

528through such means as storage in trays with

536other instruments or contact with forceps,

542in accordance with the sterilization

547procedures in this section.

5512. Sanitize all equipment indirectly

556used in body piercing, including any beds,

563tables, headrests, armrests, legrests, or

568handrails.

5693. Use protective infection barriers

574such as gloves and masks when serving a

582customer. If the protective barriers are

588contaminated, they must be properly disposed

594of immediately. Protective barriers may

599only be used once and only for one customer.

6084. To the degree possible, thoroughly

614cleanse the area to be pierced with an

622antiseptic solution before and after the

628piercing. . . .

6325. Section 381.0075(10), Florida Statutes, authorizes

638Respondent to enact rules, in pertinent part, as follows:

647(10) Rules.--The department has

651authority to adopt rules to implement this

658section. Such rules may include sanitation

664practices, sterilization requirements and

668procedures. . . .

6726. In reliance on the specific authority provided by

681Section 381.0075(10), Florida Statutes, Respondent engaged in

688rulemaking activities consistent with Chapter 120, Florida

695Statutes, and prepared proposed Rule 64E-19, Florida

702Administrative Code. This rule was filed with the Department of

712State on January 4, 2000, and became effective on January 24,

7232000.

7247. On January 24, 2000, the Department received the

733instant Petition challenging Rule 64E-19.006(2), Florida

739Administrative Code. The only portion of the subject rule

748challenged by Petitioner requires body-piercers to wear

755disposable sterile medical gloves when performing body-piercing

762procedures. Petitioner does not challenge the requirement that

770body-piercers use disposable medical gloves, but he does

778challenge the requirement in the rule that the gloves be

"788sterile."

7898. The parties stipulated that disposable sterile medical

797gloves are significantly more expensive than non-sterile

804disposable medical exam gloves. It is common practice among

813body-piercers to use several pairs of gloves during the course

823of a single body-piercing procedure.

8289. Section 381.0075, Florida Statutes, does not explicitly

836require that a body-piercer use sterile gloves when performing

845body-piercing procedures.

84710. Rule 64E-19.006(1), Florida Administrative Code,

853requires that body-piercers use aseptic techniques and sterile

861instruments.

86211. The purpose of medical exam gloves is to protect the

873wearer, whereas the purpose of sterile medical gloves is to

883protect the patient. Medical exam gloves are typically left in

893an open box, which exposes those gloves to airborne

902contamination.

90312. Gloves are likely to come in contact with either

913sterile instruments or the piercing site, as contemplated by

922Section 381.0075(11)(a)1., Florida Statutes. When compared to

929non-sterile medical exam gloves, sterile gloves provide better

937protection against the risk of infection to the person whose

947body is being pierced.

951CONCLUSIONS OF LAW

95413. The Division of Administrative Hearings has

961jurisdiction of the parties to and the subject of this

971proceeding. Section 120.57(1), Florida Statutes.

97614. Section 120.52(8), Florida Statutes, defines the term

984invalid exercise of delegated legislative authority as follows:

992(8) "Invalid exercise of delegated

997legislative authority" means action which

1002goes beyond the powers, functions, and

1008duties delegated by the Legislature. A

1014proposed or existing rule is an invalid

1021exercise of delegated legislative authority

1026if any one of the following applies:

1033(a) The agency has materially failed

1039to follow the applicable rulemaking

1044procedures or requirements set forth in this

1051chapter;

1052(b) The agency has exceeded its grant

1059of rulemaking authority, citation to which

1065is required by s. 120.54(3)(a)1.;

1070(c) The rule enlarges, modifies, or

1076contravenes the specific provisions of law

1082implemented, citation to which is required

1088by s. 120.54(3)(a)1.;

1091(d) The rule is vague, fails to

1098establish adequate standards for agency

1103decisions, or vests unbridled discretion in

1109the agency;

1111(e) The rule is arbitrary or

1117capricious;

1118(f) The rule is not supported by

1125competent substantial evidence; or

1129(g) The rule imposes regulatory costs

1135on the regulated person, county, or city

1142which could be reduced by the adoption of

1150less costly alternatives that substantially

1155accomplish the statutory objectives.

1159A grant of rulemaking authority is necessary

1166but not sufficient to allow an agency to

1174adopt a rule; a specific law to be

1182implemented is also required. An agency may

1189adopt only rules that implement or interpret

1196the specific powers and duties granted by

1203the enabling statute. No agency shall have

1210authority to adopt a rule only because it is

1219reasonably related to the purpose of the

1226enabling legislation and is not arbitrary

1232and capricious or is within the agency's

1239class of powers and duties, nor shall an

1247agency have the authority to implement

1253statutory provisions setting forth general

1258legislative intent or policy. Statutory

1263language granting rulemaking authority or

1268generally describing the powers and

1273functions of an agency shall be construed to

1281extend no further than implementing or

1287interpreting the specific powers and duties

1293conferred by the same statute.

129815. The Legislative intent in enacting Section 381.0075,

1306Florida Statutes, was clearly expressed in Section 381.0075(1),

1314Florida Statutes.

131616. The grant of rulemaking authority was also clearly

1325expressed by the Legislature. Section 381.0075(10), Florida

1332Statutes, clearly authorizes Respondent to enact rules setting

1340sanitation practices and sterilization requirements and

1346procedures. That is sufficient authority for Respondent to

1354adopt the challenged rule.

135817. Sterile gloves provide better protection to the

1366patient, which is consistent with the express legislative intent

1375to protect the health, safety, and welfare of the public from

1386the spread of infectious diseases during body-piercing

1393procedures.

1394ORDER

1395Based upon the foregoing Findings of Fact and Conclusions

1404of Law it is ORDERED that subject challenge to Rule 64E-19,

1415Florida Administrative Code, is DENIED.

1420DONE AND ORDERED this 19th day of April, 2000, in

1430Tallahassee, Leon County, Florida.

1434___________________________________

1435CLAUDE B. ARRINGTON

1438Administrative Law Judge

1441Division of Administrative Hearings

1445The DeSoto Building

14481230 Apalachee Parkway

1451Tallahassee, Florida 32399-3060

1454(850 ) 488-9675 SUNCOM 278-9675

1459Fax Filing (850) 921-6847

1463www.doah.state.fl.us

1464Filed with the Clerk of the

1470Division of Administrative Hearings

1474this 19th day of Ap ril, 2000.

1481ENDNOTE

14821/ This phrasing of the issue is based on a stipulation of the

1495parties. The rule is not being challenged on any other basis.

1506COPIES FURNISHED:

1508Bink F. Williams

15115163 Velda Dairy Road

1515Tallahassee, Florida 32308

1518Richard P. McNelis, Esquire

1522Department of Health

1525Bin A02

15272020 Capital Circle, Southeast

1531Tallahassee, Florida 32399-1701

1534Angela T. Hall, Agency Clerk

1539Department of Health

1542Bin A02

15442020 Capital Circle, Southeast

1548Tallahassee, Florida 32399-1701

1551William Large, General Counsel

1555Department of Health

1558Bin A02

15602020 Capital Circle, Southeast

1564Tallahassee, Florida 32399-1701

1567Liz Cloud, Chief

1570Bureau of Administrative Code

1574The Elliott Building

1577Tallahassee, Florida 32399-0250

1580Carroll Webb

1582Executive Director and General Counsel

1587Joint Administrative Procedures Committee

1591Holland Building, Room 120

1595Tallahassee, Florida 32399-1300

1598NOTICE OF RIGHT TO JUDICIAL REVIEW

1604A party who is adversely affected by this Final Order is

1615entitled to judicial review pursuant to Section 120.68, Florida

1624Statutes. Review proceedings are governed by the Florida Rules

1633of Appellate Procedure. Such proceedings are commenced by

1641filing one copy of a Notice of Appeal with the agency clerk of

1654the Division of Administrative Hearings and a second copy,

1663accompanied by filing fees prescribed by law, with the District

1673Court of Appeal, First District, or with the District Court of

1684Appeal in the appellate district where the party resides. The

1694Notice of Appeal must be filed within 30 days of rendition of

1706the order to be reviewed.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/19/2000
Proceedings: DOAH Final Order
PDF:
Date: 04/19/2000
Proceedings: CASE CLOSED. Final Order sent out. Hearing held 03/20/2000.
PDF:
Date: 03/24/2000
Proceedings: (R. McNelis) Proposed Final Order on Petition for Challenge to Rule 64E-19 (Body-Piercing) filed.
Date: 03/20/2000
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 03/20/2000
Proceedings: Letter to CA from R. McNelis Re: Length of Final Hearing filed.
PDF:
Date: 02/15/2000
Proceedings: Order Granting Continuance and Re-Scheduling Hearing sent out. (hearing set for March 20, 2000; 9:00 a.m.; Tallahassee, Florida)
PDF:
Date: 02/10/2000
Proceedings: Letter to CA from J. Kodaj Re: Dates available for hearing (filed via facsimile).
PDF:
Date: 02/03/2000
Proceedings: (Respondent) Consented Motion to Continue filed.
PDF:
Date: 01/27/2000
Proceedings: (Richard P. McNelis) Notice of Appearance filed.
PDF:
Date: 01/26/2000
Proceedings: Notice of Hearing sent out. (hearing set for February 17, 2000; 9:00 a.m.; Tallahassee, Florida)
PDF:
Date: 01/25/2000
Proceedings: Order of Assignment sent out.
PDF:
Date: 01/24/2000
Proceedings: Letter to Liz Cloud & Carroll Webb from M. Lockard w/cc: Agency General Counsel sent out.
PDF:
Date: 01/20/2000
Proceedings: Challenge to State of Florida, Department of Health, Chapter 64E19-19, Florida Administrative Code, letter form filed.

Case Information

Judge:
CLAUDE B. ARRINGTON
Date Filed:
01/20/2000
Date Assignment:
01/25/2000
Last Docket Entry:
04/19/2000
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Health
Suffix:
RP
 

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