06-004816RX Sydney T. Bacchus vs. Department Of Business And Professional Regulation Status: Closed DOAH Final Order on Tuesday, January 30, 2007.

Summary: Petitioner failed to allege or demonstrate standing to challenge Florida Administrative Code Rule 61G16-9.001, because the Rule is a Disciplinary Guildeline for violations committed by licensees and Petitioner is unlicensed.

Case No. 06-4816RX

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYDNEY T. BACCHUS, ) ) ) ) ) ) ) ) ) ) )

Petitioner, FINAL ORDER OF DISMISSAL

vs.

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

Respondent.

On January 8, 2007, a hearing was held in Tallahassee,

Florida, pursuant to the authority granted in Sections 120.56,

120.569 and 120.57(1), Florida Statutes. The case was considered

by Lisa Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Sydney T. Bacchus, Ph.D., pro se

Post Office Box 174

Athens, Georgia 30603-0174

For Respondent: Jennifer Tschetter, Esquire

Office of the General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0750

For Tom Scott: M. Catherine Lannon, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Whether Florida Administrative Code Rule 61G16-9.001 is an

invalid exercise of legislatively delegated authority in

violation of Section 120.52(8), Florida Statutes, and whether

certain statements of the Department of Business and Professional

Regulation (DBPR or the Department) are "agency statements"

defined as rules that should be adopted through the rulemaking

process pursuant to Section 120.54, Florida Statutes.

PRELIMINARY STATEMENT

This case originated with the filing of a Petition for

Formal Administrative Hearing to Determine the Invalidity of

Existing Rules, filed November 29, 2006. On December 1, 2006,

the case was assigned to the undersigned and noticed for hearing

December 29, 2006. The Petition cited several different rules

but did not clearly identify which of those rules Petitioner

intended to be the subject of this proceeding. The Petition also

appeared to challenge the failure of the Department to enact

certain rules Petitioner contends it is required to adopt, as

well as challenging statements made in a Notice to Cease and

Desist and an Administrative Complaint as agency statements not

adopted as rules. The Administrative Complaint is the subject of

a separate request for hearing and, at the time of hearing in

this case, had not been referred to the Division of

Administrative Hearings for assignment of an administrative law

judge.

On December 5, 2006, the Department filed a Motion to

Dismiss, Motion for Protective Order and Memorandum of Law,

asserting that it was unclear what rules Petitioner was trying to

challenge and that Petitioner lacked standing to challenge the

only rule referenced in the Order of Assignment by Chief Judge

Cohen. The Motion also sought a protective order for the

scheduled deposition of the person who was responsible for

finding probable cause against Petitioner with respect to the

Administrative Complaint. Finally, the Motion sought a sixty-day

continuance based upon the previously scheduled surgery of

Respondent's counsel. After response by Petitioner and a

telephone hearing with the parties conducted December 5, 2006, an

Order was issued granting the Motion to Dismiss, to the extent

that the Petition failed to specify which rules were the subject

of challenge and seeks to challenge agency statements made in the

Administrative Complaint as unpromulgated rules; granted the

protective order with respect to the pending deposition; and

granted a continuance until January 8, 2006. Petitioner was

directed to file an Amended Petition no later than December 20,

2006, specifically identifying which rules are the subject of her

challenge.

On Thursday, December 14, 2006, Petitioner filed a Motion to

Compel Answers to Interrogatories and to Obtain After the Fact

Permission to Exceed 30 Interrogatories. On Monday, December 18,

2006, the Department filed an Emergency Motion to Quash Notice of

Taking Deposition Duces Tecum, followed the next day with a

Response to Petitioner's Motion to Compel Answers to

Interrogatories. On December 19, 2006, Petitioner filed a

Response to Respondent's Emergency Motion to Quash Notice of

Taking Deposition Duces Tecum, as well as Petitioner's Request

for an Extension of Time to Prepare an Amended Petition and an

Emergency Telephonic Hearing on Petitioner's Motion to Compel.

On December 20, 2006, a motion hearing was conducted on all

pending motions and an Order was entered denying the Petitioner's

Motion to Compel; granting Petitioner's request to exceed 30

interrogatories, provided they were directed to issues in this

case; granting the Department's Motion to Quash Subpoena Duces

Tecum; and granting Petitioner until December 22, 2006, to file

her Amended Petition. 1/

On December 26, Petitioner filed her Amended Petition, which

will be described more fully in the Findings of Fact below. From

January 2, 2007, until January 5, 2007, the following Motions

were filed: 1) Petitioner's Emergency Motion to Compel Discovery

Responses and Request to Expand Time for Hearing (January 2,

2007); 2) Respondent's Motion to Dismiss Amended Petition

(January 3, 2007); 3) Respondent's Motion to Quash Subpoena Duces

Tecum and for Validation of Termination of Deposition (January 5,

2007); 4) Motion to Quash Subpoena of Tom Scott, Motion for

Protective Order and Request for Attorneys Fees (filed on behalf

of Tom Scott by the Department of Legal Affairs, January 5,

2007); and 5) Petitioner's Motion to Continue Deposition and for

Sanctions (January 5, 2007). 2/ At the commencement of the

hearing January 8, 2006, Petitioner filed an additional Motion in

Limine.

At the commencement of the hearing, Petitioner's Emergency

Motion to Compel Discovery Requests was denied as premature,

inasmuch as the discovery about which Petitioner complained was

not yet due at the time she filed the Motion. Considerable

argument was presented on the Respondent's Motion to Dismiss,

which was granted, based upon the undisputed facts outlined

below.

FINDINGS OF FACT

1. Petitioner, Dr. Bacchus, is a hydroecologist with a

multidisciplinary degree. While Dr. Bacchus lives in Georgia,

she alleges that a substantial amount of her income comes from

conducting environmental consulting services in Florida.

According to her Amended Petition, Dr. Bacchus is not licensed by

the Department.

2. Respondent, Department of Business and Professional

Regulation, is the state agency charged with the licensing and

regulation of a variety of professions. The practice of geology

is among the professions it regulates, pursuant to Chapters 455

and 492, Florida Statutes. Created within the Department is the

Board of Geology.

3. Petitioner is the subject of an Administrative Complaint

issued on or about September 27, 2006, charging her with the

unlicensed practice of geology in violation of Section

492.112(1)(a), Florida Statutes (2005). The Administrative

Complaint, which is attached as an Exhibit to the Amended

Petition, does not cite to any rules. As of the date of hearing,

the Administrative Complaint had not been referred to the

Division of Administrative Hearings

4. Petitioner does not allege that she has any intention of

seeking licensure from the Department.

Florida Administrative Code Rule 61G16-9.001

5. Florida Administrative Code Rule 61G16-9.001 is a rule

adopted by the Board of Geology, as opposed to the Department of

Business and Professional Regulation. The rule, entitled

"Disciplinary Guidelines," identifies the range of penalties

normally imposed by the Board of Geology against licensees for

violations of provisions in Chapters 455 and 492. All of the

possible violations addressed by the Disciplinary Guidelines are

statutory violations.

6. The rule is lengthy and will not be repeated ver batim .

The text of subsections (1) and (2) are tables of penalty ranges.

Subsection (1) deals with violations of provisions in Chapter

492, whereas subsection (2) of the rule addresses violations of

Chapter 455. Subsection (3) is entitled "The Usual Conditions"

and outlines provisions that are included in all disciplinary

orders; conditions imposed whenever fines and costs are imposed;

conditions which may be imposed with probation; and conditions

which may be imposed when a license is suspended.

7. Subsection (4) identifies the purpose of the

Disciplinary Guidelines, and states:

(4) Purpose of guidelines -- The range of

penalties set forth above is the range from

which disciplinary penalties will be imposed

upon licensees guilty of violations of the

laws and rules. The purpose of these

guidelines is to give notice of the range of

penalties which will normally be imposed for

specific violations. The guidelines are

based upon a single count violation of the

provision listed. Multiple counts of

violations of the same provision, or

unrelated provisions of the law or rules will

be grounds for enhancement of penalties or

imposition of additional penalties. [Emphasis

supplied.]

8. Subsection (5) of the rule addresses aggravating and

mitigating circumstances to be considered when imposing penalty,

and subsection (6) identifies those instances when the Department

may issue a Notice of Noncompliance.

9. The rule lists as its specific authority Sections

455.2273, 492.104(1), and 492.113(3), Florida Statutes. The laws

implemented are Sections 455.227, 455.2273, 492.104(1), and

492.113(2), Florida Statutes.

10. Section 455.227, Florida Statutes, identifies "across-

the board" acts that constitute grounds for which disciplinary

action may be taken by professional licensing boards or by the

Department, where no professional licensing board exists. The

penalties that can be imposed are the refusal to certify, or

certify with restrictions, an application for a license;

suspension or permanent revocation of a license; restriction of

practice; imposition of an administrative fine; issuance of a

reprimand; placement of a licensee on probation; or corrective

action.

11. Section 455.2273, Florida Statutes (2006), provides in

pertinent part:

455.2273 Disciplinary Guidelines

(1) Each board, or the department where

there is no board , shall adopt, by rule, and

periodically review the disciplinary

guidelines applicable to each ground for

disciplinary action which may be imposed by

the board , or the department where there is

no board, pursuant to this chapter, the

respective practice acts, and any rule of the

board or department.

12. Section 492.104(1), Florida Statutes (2006), provides:

The Board of Professional Geologists has

authority to adopt rules pursuant to ss.

120.536(1) and 120.54 to implement this

chapter. Every licensee shall be governed

and controlled by this chapter and the rules

adopted by the board. The board is

authorized to set, by rule, fees for

application, examination, certificate of

authorization, late renewal, initial

licensure, and license renewal. These fees

should not exceed the cost of implementing

the application, examination, initial

licensure, and license renewal or other

administrative process and shall be

established as follows:

(1) The application fee shall not exceed

$150 and shall not be refundable.

13. Section 492.113(2), Florida Statutes (2006), states

that the Board of Geology shall specify what acts or omissions

constitute a violation of section (1) of the section, which is

entitled "Disciplinary Proceedings." Subsection (1) identifies

several different grounds for which disciplinary action may be

taken against a licensee.

14. While Section 492.113(2) is listed as a law being

implemented by Rule 61G16-9.001, the Rule does not specify any

acts or omissions constituting a violation of Section 492.113(1),

Florida Statutes. It simply paraphrases the statutory language

of each statutory provision and gives a range of penalties for

each violation.

Agency Statements as Rules

15. Petitioner also attempts to challenge agency statements

and agency actions not adopted as rules. The Amended Petition

states:

2. . . . Examples of the text and description

of the statements and agency actions,

pursuant to § 120.56(4)(a), F.S. and as

defined in § 120.52, F.S., are provided in

the Department's:

a) Administrative Complaint against

Petitioner, SYDNEY T. BACCHUS, Ph.D.

(hereinafter "Dr. Bacchus") signed on

September 27, 2006, attached and incorporated

by reference hereto as Exhibit A;

b) Undated Settlement Stipulation

accompanying the above-referenced

Administrative Complaint against Dr. Bacchus ,

attached and incorporated by reference hereto

as Exhibit B.

c) Cease and Desist Order against

Dr. Bacchus signed on February 15, 2006,

attached and incorporated by reference hereto

as Exhibit C.

d) Complaint No. 2005056737 against

Dr. Bacchus signed on January 26, 2006 and

threatening criminal charges, attached and

incorporated by reference hereto as Exhibit

D; and

e) Complaint No. 2003063556 against

Dr. Bacchus signed on May 22, 2003 and

threatening criminal charges, attached and

incorporated by reference hereto as Exhibit

E. [Emphasis Supplied.]

Failure to Adopt Rules

16. Petitioner apparently also seeks to address the failure

of the Department to adopt rules identifying what acts constitute

the unlicensed practice of geology. The Amended Petition states

in pertinent part:

43. In 1987, the Board was authorized to

govern and control every licensed

professional geologist, pursuant to s. 4, ch.

87-403, Laws of Florida. The Board was not

authorized to govern and control persons not

licensed as a professional geologist.

44. In 1987, the Department was mandated to

"specify, by rule what acts or omissions

constitute a violation" of the "[P]ractice of

geology," pursuant to subsection (2) s. 12,

ch. 87-403 Laws of Florida.

* * *

46. The Department has failed to specify, by

rule, "what acts or omissions constitute a

violation" of the "[P]ractice of geology," to

allow an unlicensed person to "know" what

constitutes the practice of geology. In the

absence of such specificities, a person

cannot "knowingly" engage in the unlicensed

"[P]ractice of geology" or "knowingly employ

unlicensed persons to practice geology,

pursuant to subsection (1) s. 12, ch. 87-403

Laws of Florida. [Emphasis in original.]

17. Petitioner's Unilateral Pre-Hearing Statement does not

mention Rule 61G16-9.001. Petitioner's statements identifying

what she views as the scope of the proceeding state the

following:

Brief General Statement of Petitioner's

Position

The Department is regulating unlicensed

members of the public under Chapters 492 and

455 Florida Statutes, using unpromulgated

rules and rules that are an invalid exercise

of delegated legislative authority. Such

unlawful regulation violates the

constitutional freedom of speech of

unlicensed persons. The Department is

impermissibly encroaching on the powers of

the judiciary.

* * *

Issue of Fact that Remain to be Litigated

1. Whether the Department is regulating

unlicensed members of the public under

Chapters 492 and 455 Florida Statutes, using

unpromulgated rules and rules that are an

invalid exercise of delegated legislative

authority.

Issue of Law that Remain to be Litigated

1. Whether the Department exceeded its

lawful delegation of authority to regulate

the "practice of professional geology" in the

manner in which it is being regulated in

Florida.

2. Whether the Department has failed to give

adequate notice to the public regarding what

constitutes the unlicensed "practice of

professional geology" in Florida.

3. Whether the Department's rules are over-

broad, vague, and are in invalid exercise of

delegated legislative authority. . . .

4. Whether the Department was required to

promulgate rules to regulate the unlicensed

"practice of professional geology" in

Florida, but failed to promulgate those

rules.

5. Whether the Department has been engaged

in a pattern of action that constitutes an

unpromulgated rule.

6. Whether the Department's recent

regulation of the "practice of professional

geology" in Florida constitutes selective

enforcement.

18. Petitioner was questioned at length during the

consideration of the Motion to Dismiss regarding the basis of her

challenge. She indicated not that she was concerned with the

application of Rule 61G16-9.001 against her, but that she wished

to challenge the entire regulatory scheme:

THE COURT: . . . Doctor, all the

disciplinary guideline rule does is name a

statutory or rule violation. It paraphrases

the statute itself. It doesn't provide any

additional language to my knowledge and

provides what penalty would be imposed should

a licensee violate one of those statutory

provisions. It doesn't -- and as I look at

this, it doesn't even have any rule

violations. Its statutory.

DR. BACCHUS: Yes, Your Honor, I understand

that, and I understand that it is confusing,

but in fact I had received two charges from

the department over a period of -- beginning

-- I received the first notice in 2003 for a

complaint filed I believe the previous year,

and then second complaint that I received

early in 2006 for a complaint filed against

me in 2005 basically alleging that I was

producing documents that in fact were

required to have the seal and signature of a

licensed geologist.

So in fact the agency is regulating

unlicensed persons using the language from

61G16 despite the fact that they are not

referencing the rule citation. You know,

I'm an unlicensed individual, complaints are

being filed against me because I am producing

documents that have only my name.

No reference to the title of professional

geology, no insinuation that I am a

geologist, a professional geologist, a

licensed professional geologist, no reference

to that whatsoever, yet complaints are being

filed against me with the department and they

are taking action against me.

THE COURT: But again, getting back to this

rule. Even assuming -- and the merits of

your administrative complaint are not before

me and we're not going to talk about them.

DR. BACCHUS: Yes, Your Honor, I understand.

THE COURT: But even assuming that, even

assuming that the department were going to

take action against you based on whatever is

charged in that administrative complaint, how

is this rule -- you're not going to be --

this rule specifically says licensees.

DR. BACCHUS: Yes, Your Honor, I understand

that, but that's not how its being applied by

the Department. I understand that this

hearing is not a hearing to be addressing my

complaints, but as I understand, my

complaints are relevant with regard to my

standing for this issue before the court

today. And in fact because of the actions of

the department against me, you know, multiple

complaints can be filed against me for any

written document that I have produced in the

past or any written document that is pending,

peer-reviewed publications that are pending

to be released, because I don't have a

license, they are using that language without

referencing that rule to take action against

me, your Honor.

THE COURT: But again, you're saying they're

not referencing that rule.

DR. BACCHUS: That's correct, Your Honor.

They're not referencing that, but because

there is no comparable rule that has been

promulgated and adopted and is being

implemented for unlicensed activities, there

is only the statute they are referencing,

only 492 and 455, and because there isn't a

comparable rule to 61G16 for unlicensed

people, then by nature you have to look at

what the licensed activity is to determine

what the unlicensed activity is.

19. Similarly, with respect to the actions taken by the

Department against her personally, Dr. Bacchus asserted that

these actions, which she characterizes as agency statements, give

her standing to file this rule challenge. However, she does not

allege that the Department's actions necessarily give her

standing to challenge the specific rule alleged in the Amended

Petition:

THE COURT: So what is your position in terms

of standing? These agency statements give

you standing to challenge what?

DR. BACCHUS: To challenge the regulation of

unlicensed practice of professional geology

in Florida. Because the broad sweeping net

they are casting, Your Honor, encompasses

every form of speech, every form of written

document that I produce, whether it is a

peer-reviewed publication, whether it is a

comment letter to a public agency proposed

action, I would have to challenge every

single act. I literally cannot act until I

am able to know what constitutes the practice

of professional geology and the statute does

not tell me that.

20. Finally, with respect to what Dr. Bacchus describes as

"illegal unpromulgated rules," Dr Bacchus described the

unpromulgated rule as "this sweeping action, the fact that the

statute does not define geological services, the statute does not

define geological documents, yet the agency is taking action not

only against me but against a myriad [of] other people for

theoretically actions that constitute geological services."

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

22. Dr. Bacchus' Amended Petition alleges three bases for

challenge. For the reasons that follow, Petitioner has not

stated a basis for proceeding as a matter of law.

23. Section 120.52, Florida Statutes (2006), defines

certain terms as they are used in Chapter 120. The following

statutory definitions are pertinent to this proceeding:

(2) "Agency action" means the whole or part

of a rule or order, or the equivalent, or the

denial of a petition to adopt a rule or issue

an order. The term also includes any denial

of a request made under s. 120.54(7).

* * *

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and duties

delegated by the Legislature. A proposed or

existing rule is an invalid exercise of

delegated legislative authority if any one of

the following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

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

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required by

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

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or

(f) The rule imposes regulatory costs on the

regulated person, county, or city which could

be reduced by the adoption of less costly

alternatives that substantially accomplish

the statutory objectives.

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by the

enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary and

capricious or is within the agency's class of

powers and duties, nor shall an agency have

the authority to implement statutory

provisions setting forth general legislative

intent or policy. Statutory language

granting rulemaking authority or generally

describing the powers and functions of an

agency shall be construed to extend no

further than implementing or interpreting the

specific powers and duties conferred by the

same statute.

* * *

(15) "Rule" means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

The term also includes the amendment or

repeal of a rule. The term does not include:

[Exceptions not relevant to this

proceedings.]

24. Section 120.56, Florida Statutes (2006), provides in

pertinent part:

(1) GENERAL PROCEDURES FOR CHALLENGING THE

VALIDITY OF A RULE OR A PROPOSED RULE.--

(a) Any person substantially affected by a

rule or a proposed rule may seek an

administrative determination of the

invalidity of the rule on the ground that the

rule is an invalid exercise of delegated

legislative authority.

(b) The petition seeking an administrative

determination must state with particularity

the provisions alleged to be invalid with

sufficient explanation of the facts or

grounds for the alleged invalidity and facts

sufficient to show that the person

challenging a rule is substantially affected

by it, or that the person challenging a

proposed rule would be substantially affected

by it.

* * *

(4) CHALLENGING AGENCY STATEMENTS DEFINED AS

RULES; SPECIAL PROVISIONS.--

(a) Any person substantially affected by an

agency statement may seek an administrative

determination that the statement violates s.

120.54(1)(a). The petition shall include the

text of the statement or a description of the

statement and shall state with particularity

facts sufficient to show that the statement

constitutes a rule under s. 120.52 and that

the agency has not adopted the statement by

the rulemaking procedure provided by s.

120.54. [Emphasis supplied.]

25. DBPR is a licensing agency created pursuant to Section

20.165, Florida Statutes. Created within the Department's

Division of Professions is the Board of Geology. § 20.165(4)

(a)12., Fla. Stat. (2006) The responsibilities of both the

professional boards and the Department are outlined in Chapter

455, Florida Statutes, and the specific responsibilities with

respect to the regulation of the practice of geology are

contained in Chapter 492, Florida Statutes.

26. Generally speaking, action against unlicensed persons

is addressed in Section 455.228, Florida Statutes (2006), which

states in pertinent part:

455.228 Unlicensed practice of a profession;

cease and desist notice; civil penalty;

enforcement; citations; allocation of moneys

collected.--

(1) When the department has probable cause

to believe that any person not licensed by

the department, or the appropriate regulatory

board within the department, has violated any

provision of this chapter or any statute that

relates to the practice of a profession

regulated by the department, or any rule

adopted pursuant thereto, the department may

issue and deliver to such person a notice to

cease and desist from such violation. In

addition, the department may issue and

deliver a notice to cease and desist to any

person who aids and abets the unlicensed

practice of a profession by employing such

unlicensed person. The issuance of a notice

to cease and desist shall not constitute

agency action for which a hearing under ss.

120.569 and 120.57 may be sought. For the

purpose of enforcing a cease and desist

order, the department may file a proceeding

in the name of the state seeking issuance of

an injunction or a writ of mandamus against

any person who violates any provisions of

such order. In addition to the foregoing

remedies, the department may impose an

administrative penalty not to exceed $5,000

per incident pursuant to the provisions of

chapter 120 or may issue a citation pursuant

to the provisions of subsection (3). If the

department is required to seek enforcement of

the order for a penalty pursuant to s.

120.569, it shall be entitled to collect its

attorney's fees and costs, together with any

cost of collection.

Florida Administrative Code Rule 61G16-9.001

27. Petitioner does not have standing to challenge the

provisions of Rule 61G16-9.001. Section 120.56, Florida

Statutes, allows a person who is substantially affected by a rule

or agency statement to initiate a challenge. To establish

standing under the "substantially affected" test, a party must

demonstrate that 1) the rule or policy will result in a real and

immediate injury in fact, and 2) the alleged interest is within

the zone of interest to be protected or regulated. Jacoby v.

Florida Board of Medicine , 917 So. 2d 358 (Fla. 1st DCA 2005);

see also Office of Insurance Regulation v. AIU Insurance Co. , 926

So. 479 (Fla. 1st DCA 2006) (insurance company did not

demonstrate that application of the proposed rule will result in

a real and sufficiently immediate injury in fact to afford

standing to challenge the proposed rule); Florida Board of

Medicine v. Florida Academy of Cosmetic Surgery , 808 So. 2d 243,

250 (Fla. 1st DCA 2002), superseded on other grounds , Department

of Health v. Merritt , 919 So. 2d 561 (Fla. 1st DCA 2006).

28. Petitioner does not meet this standard. She has

alleged in the Amended Petition and affirmed at hearing that she

is not licensed by the Department. Rule 61G16-9.001, by its

terms, only applies to licensees who are disciplined by the Board

of Geology. Rule 61G16-9.001 cannot be applied to her. Under

these circumstances, Petitioner cannot demonstrate that she will

suffer a real and immediate injury in fact as a result of the

rule.

29. Neither is she within the zone of interest to be

regulated. Rule 61G16-9.001 provides penalties for licensees who

are found to be in violation of Chapter 455 or 492. While

Petitioner argues that, by comparison, it affects her as an

unlicensed person charged with practicing without a license,

penalties for such violations are governed by Section 455.228 as

opposed to Rule 61G16-9.001. 3/ Compare Lanoue v. Florida

Department of Law Enforcement , 751 So. 2d 94, 99 (Fla. 1st DCA

1999).

30. Moreover, Rule 61G16-9.001 simply does not provide

notice of what constitutes a violation of any provision of

Chapter 455 or 492. It provides notice of what penalty may be

imposed assuming a licensee is found guilty of violating a named

statutory infraction. Under these circumstances, Petitioner has

not and cannot allege or demonstrate standing to challenge Rule

61G16-9.001.

Agency Statements Defined as Rules

31. Petitioner's attempt to challenge the Department's

actions against her as "agency statements" is also not permitted

in a Section 120.56 proceeding. The Amended Petition at

paragraph 2 attempts to describe agency statements and agency

actions, and lists two notices of complaints against Dr. Bacchus;

a Cease and Desist Order against Dr. Bacchus; an Administrative

Complaint against Dr. Bacchus; and a proposed settlement

stipulation to resolve the Administrative Complaint.

32. Petitioner has confused agency action, which is defined

in Section 120.52(2), Florida Statutes, with an agency statement,

which is not specifically defined. Moreover, Petitioner has

equated preliminary agency actions against her with the

definition of a rule under Section 120.52(15). While she

identifies in her Amended Petition "examples" of agency actions

or statements, when asked directly what agency statement was at

issue, she could not name an actual statement in the documents

she identified, and she could not name any other agency statement

alleged in her Amended Petition. 4/ Her inability to identify the

"agency statement" she intended to challenge violates the

requirements of Section 120.56(4)(a), Florida Statutes, and

deprives the Department of adequate notice of what it is called

upon to defend. Aloha Utilities, Inc. v. Public Service

Commission , 723 So. 2d 919, 92-21 (Fla. 1st DCA 1999).

33. This case is very similar to the scenario presented in

United Wisconsin Life Insurance Co. v. Department of Insurance ,

DOAH Case No. 01-3135RU (Final Order Issued November 27, 2001),

affirmed , 831 So. 2d 239 (Fla. 1st DCA 2002); see also The Pool

People, Inc. v. Board of Professional Engineers , 05-1637RU (Final

Order issued December 1, 2005). Conclusions of law in the Final

Order in United Wisconsin are equally pertinent here:

61. The first question to be resolved is

whether any of the three statements

challenged by United meet the definition of a

"rule" as that term is defined in Section

120.52(15), Florida Statutes. If the

statements alleged to be rules in the

Complaint are not rules, then the inquiry

needs to go no further.

62. In determining whether or not these

statements amount to rules by definition, it

is important to note as a threshold matter,

that for the purposes of this order, the

merit, or lack thereof, of the Department's

position in the Complaint is not at issue

here. In other words, whether the facts

asserted in the complaint can be proven, and

if so, whether they are violations of the

Florida Insurance Code, are matters which

await decision on another day.

63. Rulemaking is required only for an

agency statement that is the equivalent of a

rule, which is defined in Section 120.52(15),

Florida Statutes. Environmental Trust, Inc.

v. State Department of Environmental

Protection , 714 So. 2d 493, 498 (Fla. 1st DCA

1998).

64. It would be inappropriate to speculate

in this Order, as to whether the Department

may have made statements reflecting generally

applicable policies substantially affecting

parties through other media which are similar

to the allegations in the Complaint. What is

clear, however, is that the matters alleged

in the Complaint, which are the subject of

this litigation, are not agency statements.

65. [The statutory provisions which form the

basis for the Administrative Complaint], are,

taken together, statutes which prohibit

described conduct. They are penal in nature.

Some of the sections . . . provide for

criminal sanctions. They are announcements

of policy enacted into law by the Florida

Legislature. They represent the policy of

the state. Because the Department is the

agency charged with implementing these

statutes, the Department is free to allege

facts which might prove to be violations of

these statutes, without resort to explanatory

rules.

66. It seems unlikely that the Florida

Legislature intended that allegations under a

prohibitory or penal statute could be subject

to collateral attack through a Section

120.54, Florida Statutes, rule challenge.

Such a procedure could result in two hearings

each time a regulatory action was brought by

an agency. In the pursuit of justice through

the administrative process, simplicity and

economy of resources are primary goals.

Permitting collateral challenges in

enforcement cases unreasonably derogate those

goals.

67. In any event, the "statements" alleged

in the Petition to be rules by definition,

are not statements of the Department. They

are pleadings pertaining to alleged

violations of a Florida Statute. Therefore

they are not rules by definition. It is

further apparent that the proper forum for

the resolution of the matters contained in

the Complaint is a proceeding pursuant to

Section 120.57(1), Florida Statutes.

34. The First District affirmed the Final Order, stating

that United Wisconsin had no right to pursue a separate,

collateral challenge to an alleged nonrule policy where an

adequate remedy exists through a Section 120.57 hearing. The

same result is required here. The provision alleged in the

Administrative Complaint against Petitioner and referenced in her

Amended Petition is a penal provision. The Department is not

required to reference a separate rule in its prosecution of that

case, and the fact that the Department has chosen to initiate

action against her is not a basis for challenging that

preliminary action as an unpromulgated rule.

35. Petitioner attempts to distinguish the United Wisconsin

decision based upon the fact that she has had two, as opposed to

one, Notices to Cease and Desist issued against her. However,

the existence of two separate instances where Petitioner has been

accused of violating a statutory provision does not make either

statement a statement of general applicability. They are

statements addressed to a specific party about specific instances

of conduct that the Department believes are violations of a

specified statutory provision. Such statements are not rules.

36. In reality, what Petitioner is attempting to challenge

is the regulatory scheme related to the practice of geology. She

is not the first to do so. See Clark v. Department of

Professional Regulation, Board of Professional Geologists , 584

So. 2d 59 (Fla. 1st DCA 1991). However, the type of challenge

she is attempting to bring is simply not within the narrow scope

of a Section 120.56 rule challenge.

Failure to Promulgate Rules

37. Finally, Petitioner is attempting to challenge the

Respondent's failure to specify by rule, what acts or omissions

constitute a violation of the practice of geology. Petitioner

cites to subsection (2), s.12, Chapter 87-403, Laws of Florida,

as opposed to current Florida Statutes. The provision to which

she cites is codified at Section 492.113(2), Florida Statutes,

and directs the Board of Geology, as opposed to the Department

which is the named respondent here, to adopt rules.

38. Notwithstanding that the directive in Section

492.113(2) is directed to the Board of Geology as opposed to

Respondent, Petitioner is in the wrong forum to challenge

petition an agency to adopt rules they are mandated to

promulgate. Section 120.54(7), Florida Statutes, provides:

(7) PETITION TO INITIATE RULEMAKING.--

(a) Any person regulated by an agency or

having substantial interest in an agency rule

may petition an agency to adopt, amend, or

repeal a rule or to provide the minimum

public information required by this chapter.

The petition shall specify the proposed rule

and action requested. Not later than 30

calendar days following the date of filing a

petition, the agency shall initiate

rulemaking proceedings under this chapter,

otherwise comply with the requested action,

or deny the petition with a written statement

of its reasons for the denial.

39. This provision requires that if Petitioner is seeking

to have the Board adopt rules defining what constitutes the

practice of geology, she must file a petition with the Board of

Geology as opposed to the Division of Administrative Hearings.

The undersigned has no authority to act on this portion of

Petitioner's Amended Petition.

40. The Petitioner has filed a Proposed Final Order

suggesting that this proceeding be dismissed "without prejudice

with leave to amend by more clearly providing any relevant

'statements' by the Department and how no adequate remedy exists

for her through a Section 120.57, F.S. proceeding." However,

what Petitioner is attempting to do is allege new, different

"agency statements" from those alleged in the Amended Petition.

To the extent that Petitioner seeks to challenge different

agency statements from those identified in her Amended Petition,

they would constitute a separate challenge.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

1. That the Motion to Dismiss the Amended Petition for

Formal Administrative Hearing to Determine the Invalidity of

Existing and Illegal Unpromulgated Rules is granted. The

Amended Petition is dismissed and all relief sought in the

Petition is denied.

2. Respondent's Motion to Quash Subpoena Duces Tecum and

for Validation of Termination of Deposition filed January 5,

2007, is denied as moot.

3. The Motion to Quash Subpoena of Tom Scott, Motion for

Protective Order and Request for Attorneys Fees filed on behalf

of Tom Scott January 5, 2007, is denied as moot.

4. Petitioner's Motion to Continue Deposition and for

Sanctions filed January 5, 2007, and Motion in Limine filed

January 8, 2007, are denied as moot.

DONE AND ORDERED this 30th day of January, 2007, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of January, 2007.

ENDNOTES

1/ Petitioner originally requested until Friday, January 5, 2007,

to file her Amended Petition. However, she did not want the

formal hearing, scheduled to commence Monday, January 8, 2007, to

be continued.

2/ A conference call was arranged in order to address the first

two of these motions, which was to take place Thursday afternoon,

January 4, 2007. However, the parties called the Division and

informed the undersigned's secretary that they were unable to

appear for the scheduled call. Therefore these motions were

considered at the beginning of the hearing.

3/ Ironically, violation of Section 492.112(1)(a) is listed as a

violation in the Rule for which a range of penalties is provided

under subsection (1) of the Rule. The range of penalties is a

fine up to $500 plus costs, with probation or suspension for a

first offense, to a fine of up to $1,000 plus costs, and

suspension or revocation for a subsequent violation. However, the

introductory language for the subsection provides "Whenever the

Board finds a licensee guilty of violating a provision of Chapter

492, the following Penalty guidelines will be followed." Given

this limiting language and the nature of penalties described, it

must be assumed that the rule is not intended to apply to persons

such as Dr. Bacchus who are not, do not intend to be and have not

been licensed by the Board.

4/ At hearing, she mentioned for the first time the existence of

an agency statement that she asserted appears on the Department's

webpage identifying conduct that would be considered the practice

of geology. However, no such agency statement appears in her

Amended Petition, and it appears that the information referenced

that appears on the webpage is an entirely different agency

statement than what she alleged was an unadopted rule in this

case. Petitioner is free to challenge that statement assuming

she can demonstrate standing to do so. However, inasmuch as it

referenced an entirely different statement than what was alleged

in her Amended Complaint, it was not within the scope of this

proceeding.

COPIES FURNISHED:

Sydney T. Bacchus, Ph.D.

Post Office Box 174

Athens, Georgia 30603-0174

Jennifer A. Tschetter, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0750

M. Catherine Lannon, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Scott Boyd, Acting Executive Director

and General Counsel

Joint Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code

The Elliott Building, Room 201

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of appeal with the Clerk of the Division of Administrative

Hearings and a copy, accompanied by filing fees prescribed by

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

the District Court of Appeal in the Appellate District where the

party resides. The notice of appeal must be filed within 30 days

of rendition of the order to be reviewed.