07-004783RU Thomas R. Filippi vs. Department Of Education
 Status: Closed
DOAH Final Order on Friday, June 20, 2008.


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Summary: Respondent`s revised application form is a valid rule, and the outdated form, which was mistakenly made available to online applicants for a time after the adoption of the revised form, was not an unlawful unadopted rule.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8THOMAS FILIPPI, )

11)

12Petitioner, )

14)

15vs. )

17) Case No. 07-4783RU

21DEPARTMENT OF EDUCATION and )

26STATE BOARD OF EDUCATION, )

31)

32Respondents. )

34)

35FINAL ORDER

37This case came before Administrative Law Judge John G.

46Van Laningham for final hearing by video teleconference on

55February 15, March 24, and April 4, 2008, at sites in

66Tallahassee, Miami, and Fort Lauderdale, Florida.

72APPEARANCES

73For Petitioner: Timothy P. Atkinson, Esquire

79Gavin D. Burgess, Esquire

83Oertel, Fernandez, Cole & Bryant

88Post Office Box 1110

92Tallahassee, Florida 32302-1110

95For Respondent: Charles T. Whitelock, Esquire

101Whitelock & Associates, P.A.

105300 Southeast 13th Street

109Fort Lauderdale, Florida 33316-1924

113STATEMENT OF THE ISSUES

117The issues in this case are, first, whether a section of an

129application form, which was adopted as a rule, is an invalid

140exercise of delegated legislative authority; and, second,

147whether portions of an outdated online version of the same

157application form constituted an agency statement defined as a

166rule, which was not adopted in accordance with (and thus

176violated) Section 120.54(1)(a), Florida Statutes.

181PRELIMINARY STATEMENT

183By a Notice of Re asons dated Ma y 30, 2006, Jo hn L. Winn, 1 as

200Commissioner of Education, notifi ed Petitioner Th omas R. Filippi

210that the Department of Education inte nded to deny his application

221for a teaching certificate purs uant to Sectio n 1012.56(10),

231Florida Statut es. As grounds for the denial, th e Commissioner

242asserted that Fi lippi lacks the go od moral characte r required to

255be eligible for a teac hing certificate and th at he had committed

268acts which would author ize the Educatio n Practices Co mmission to

280revoke a teaching ce rtificate. Fi lippi disputed the factual

290allegations and timely requested a revi ew by the Education

300Practices Comm ission. On Octobe r 9, 2007, the Ed ucation Pr actices

313Commission referred the matter, for a formal hearing, to the

323Division of Admini strative Hearings, where it was docketed as Case

334No. 07-4628.

336Meantime, on October 19, 2007 , Mr. Filippi fi led a petition

347with the Division of Administrative Hearings seeking to nullify

356certain provisio ns of the form s on which he had applied for

369licensure, either as co nstituting an invalid exercise of delegated

379legislative auth ority (which he al leged in relation to the form on

392which he first applied) or as part of an unad opted rule (which he

406claimed was the le gal status of th e form on whic h he made his

422second, third, and four th applications ). This rule challenge,

432brought against th e department and the Stat e Board of Education,

444was docketed as Ca se No. 07-4783RU. On November 30, 2007, at the

457parties' joint request, the undersigne d consolidated the two cases

467for all purposes , including fina l hearing.

474In the run-up to the final hearing, each side sought, and was

486granted, leave to amen d its pleading. Conseq uently, Case No. 07-

4984628 proceeded to hearing on the charges br ought in the

509Commissioner's Third Am ended Notice of Reasons. In Case No. 07-

5204 7 8 3 R U , t h e i s s u e s w e r e f r a m e d i n M r . F i l i p p i ' s Amended Petition

561for Determination of Invalidity of Adopted and Unadopted Rules.

570At the final hearin g of the consolidated cases, which was

581h e l d o v e r t h e c o u r s e o f s e v e r a l d a y s , o n February 15; March 24;

617and April 4, 2008, M r . F i l i p p i c a l l e d t h e f o l l o w i n g w i t n e s s e s ( i n

661addition to hi mself): Father Enriqu e Estrada (whose video

671deposition was received in lieu of a live appearance); Dr. Maria

682Chelala; and Kevin S. Trim. In addi tion, Petitioner 's Exhibits 1-

6948, 9(a)-(9d), 10(a)-10 (e), 11(a)-11(d), 12, 15, 17, 18, 19(k), 20,

70521(b)-21(h), 22(a), 23 -27, 31(b), 31(k), 31 (l), 44, 49, 58, 62,

717and 71 were admitt ed into evidence.

724Respondents pr esented the foll owing witnesses: Beverly W.

733Gregory, Ana Rasco, Heat her Deskins, Marian La mbeth, and Ronald G.

745Stowers. Resp ondents' Exhibits 5-9, 13, 15 18, 18(b), 19, and 23

757were received also, as were two depo sitions of Mr. Filippi, whose

769prior testimony wa s admitted in ad dition to his ex tensive hearing

782testimony.

783The undersigned to ok official recogn ition of numerous

792documents, as memorialized in the file.

798The transcript of the final hear ing, comprising five volumes

808(one of which is unnumb ered), was filed seriatim , over time, with

820the final tranche arriving on Ma y 14, 2008. By Order dated

832M a y 2 2 , 2 0 0 8 , t h e u n d e r s i g n e d s e v e r e d Case Nos. 07-4268 and 07-

8674783RU, for disposition. T h e r e a f t e r , e a c h p a r t y t i m e l y s u b m i t t e d

904a Proposed Final Order (in Case No. 07-4783RU) before the deadline

915of May 27, 2008; th eir papers were duly considered.

925Unless otherwise indicated, citations to the Florida

932Statutes refer to the 2007 Florida Statutes.

939FINDINGS OF FACT

9421. Petitioner Thomas Filippi ("Filippi") desires to be

952issued an Educator's Certificate authorizing him to teach in the

962public schools in the State of Florida. Accordingly, on or

972about March 1, 2005, Filippi filled out and signed an

982Application for Florida Educator's Certificate. Through this

989application, Filippi sought to become certified to teach

997Chemistry (Grades 6-12) in the Florida public schools. Filippi

1006mailed his application to the Department of Education

1014("Department"), where it was received on March 7, 2005.

10252. Question No. 22 of the application, on the subject of

1036professional sanctions, comprised four subparts, and asked the

1044following:

1045[1] Have you ever had any professional

1052license ( a driver's license is not a

1060professional license ) or professional

1065certificate, including a teaching

1069certificate, sanctioned by the issuing

1074agency in this or any state? Sanction is

1082defined to include: suspension; revocation;

1087discipline, such as issuance of a reprimand

1094or fine; or otherwise conditioned, such as

1101placed on any restriction or probation. [2]

1108Have you ever resigned, surrendered, or

1114otherwise relinquished a professional

1118license or certificate in this or any state?

1126[3] Is there any action pending in this or

1135any state against a professional license or

1142certificate that you hold or held? [4] Is

1150there any action pending in this or any

1158state against an application for a

1164professional license or certificate that you

1170have on file? (A determination of academic

1177ineligibility is not considered denial of a

1184license or certificate.)

1187(Bracketed numbers added.) Beneath these questions, for the

1195applicant whose answer would be "yes," were lines on which to

1206identify, with respect to any sanction(s) prompting the

1214affirmative response, the "State," "Year," "License or

1221Certificate," "Issuing Agency," and "Reason."

12263. Over the next seven months, on April 12, 2005; May 16,

12382005; and October 11, 2005, Filippi filed three additional

1247applications for licensure with the Department, each one seeking

1256certification in a different subject or subjects. Filippi's

1264second, third, and fourth applications (collectively, the

"1271Online Applications"), unlike his first, were completed and

1280submitted electronically via the internet.

12854. The Online Applications were identical to each other in

1295form, but differed somewhat from Filippi's first application.

1303This was because, in December 2004, the State Board of Education

1314("SBE") had adopted an updated version of the application for a

1327teaching certificate, which form was duly incorporated by

1335reference into, and made a part of, Florida Administrative Code

1345Rule 6A-4.0012. Due to an oversight, however, the Department

1354had not revised the online application to reflect the most

1364recent changes to this form——and would not do so until October

13752006, when it discovered the mistake. Consequently, Filippi's

1383first application was made on the then-current form; his Online

1393Applications, however, despite having been submitted later in

1401time, were made on an older version of the form.

14115. There was a question in the Online Applications dealing

1421with professional sanctions. The inquiry, however, contained

1428only three subparts rather than four, as had Question No. 22 of

1440the first application Filippi had submitted. The following

1448shows the differences between the Online Applications (which the

1457Department inadvertently had neglected to update), on the one

1466hand, and Filippi's first application (which used the then-

1475current form), on the other, by underlining the language that

1485was not in the Online Applications (but should have been ), and

1497striking through a word ("denial") that was in the Online

1509Applications (but should not have been):

1515[1] Have you ever had any professional

1522license ( a driver's license is not a

1530professional license ) or professional

1535certificate , including a teaching

1539certificate, sanctioned by the issuing

1544agency in this or any state? Sanction is

1552defined to include: denial ; suspension;

1557revocation; discipline, such as issuance of

1563a reprimand or fine; or otherwise

1569conditioned, such as placed on any

1575restriction or probation. [2] Have you ever

1582resigned, surrendered, or otherwise

1586relinquished a professional license or

1591certificate in this or any state? Is there

1599any action pending in this or any state

1607against a professional license or

1612certificate that you hold or held? [3] Is

1620there any action pending in this or any

1628state against an application for a

1634professional license or certificate that you

1640have on file? (A determination of academic

1647ineligibility is not considered denial of a

1654license or certificate.)

1657A YES or NO answer is required by Florida

1666Law. If YES, you must give the information

1674requested for each sanction.

1678(Bracketed numbers added.)

16816. The Commissioner of Education ("Commissioner"), as head

1691of the Department, decided that Filippi should not be permitted

1701to teach in Florida. Among the reasons for the Commissioner's

1711preliminary decision to deny Filippi's application for a

1719teaching certificate was the Commissioner's belief that Filippi

1727willfully had failed to disclose, in his applications for a

1737teaching certificate, certain material facts, including

1743information concerning the adverse actions that had been taken,

1752respectively, against his applications for licensure as a

1760teacher in the states of West Virginia and Pennsylvania.

17697. In this proceeding, Filippi alleges that the question

1778regarding professional sanctions in the first application he

1786submitted was an invalid existing rule. Filippi asserts that

1795the question was invalid for several reasons. First, he argues

1805that the SBE lacks rulemaking authority to ask an applicant for

1816a teaching certificate about any previous professional sanctions

1824he might have suffered, much less about any adverse actions that

1835might be pending elsewhere against some other application(s) for

1844licensure of the applicant. Second, he contends that the

1853professional-sanctions question empowers the Department to deny

1860an application merely because of an action pending elsewhere

1869against another application of the applicant, even though such

1878pending action (of itself) would not authorize the Education

1887Practices Commission ("EPC") to revoke a teaching certificate.

1897Third, Filippi insists that the question regarding professional

1905sanctions was impermissibly vague.

19098. With regard to the Online Applications, Filippi charges

1918that the SBE violated the rulemaking procedure prescribed in

1927Section 120.54, Florida Statutes, because (Filippi contends) the

1935question regarding professional sanctions in the Online

1942Applications constituted an agency statement meeting the legal

1950definition of the term "rule," which rule-by-definition (Filippi

1958claims) the SBE was required promptly to adopt formally as a

1969rule.

1970CONCLUSIONS OF LAW

19739. The Division of Administrative Hearings has personal

1981and subject matter jurisdiction in this proceeding pursuant to

1990Sections 120.56, 120.569, and 120.57(1), Florida Statutes, and

1998the parties have standing.

2002T HE E XISTING R ULE

200810. In a challenge to an existing rule, the "petitioner

2018has [the] burden of proving by a preponderance of the evidence

2029that the existing rule is an invalid exercise of delegated

2039legislative authority as to the objections raised." See §

2048120.56(3)(a), Fla. Stat.

205111. The Fundamental Rules of Decision 2

2058The starting point for determining whether an existing or

2067proposed rule is invalid is Section 120.52(8), Florida Statutes,

2076in which the legislature defined the term "invalid exercise of

2086delegated legislative authority." In this definition, the

2093legislature created a catalog of the salient defects which

2102distinguish rules that exceed an agency's delegated powers,

2110functions, and duties from those which do not. Pertinent to

2120this case are the following provisions:

2126A proposed or existing rule is an invalid

2134exercise of delegated legislative authority

2139if any one of the following applies:

2146* * *

2149(b) The agency has exceeded its grant of

2157rulemaking authority, citation to which is

2163required by s. 120.54(3)(a)1.;

2167(c) The rule enlarges, modifies, or

2173contravenes the specific provisions of law

2179implemented, citation to which is required

2185by s. 120.54(3)(a)1; [or]

2189(d) The rule is vague, fails to establish

2197adequate standards for agency decisions, or

2203vests unbridled discretion in the agency;

2209§ 120.52(8), Fla. Stat.

221312. Also included in Section 120.52(8) is a concluding

2222the legislature expressed a clear intent to curb agency

2231rulemaking authority:

2233A grant of rulemaking authority is necessary

2240but not sufficient to allow an agency to

2248adopt a rule; a specific law to be

2256implemented is also required. An agency may

2263adopt only rules that implement or interpret

2270the specific powers and duties granted by

2277the enabling statute. No agency shall have

2284authority to adopt a rule only because it is

2293reasonably related to the purpose of the

2300enabling legislation and is not arbitrary

2306and capricious or is within the agency's

2313class of powers and duties, nor shall an

2321agency have the authority to implement

2327statutory provisions setting forth general

2332legislative intent or policy. Statutory

2337language granting rulemaking authority or

2342generally describing the powers and

2347functions of an agency shall be construed to

2355extend no further than implementing or

2361interpreting the specific powers and duties

2367conferred by the same statute.

2372§ 120.52(8), Fla. Stat. The legislature enacted the very same

2382restrictions on rulemaking authority in Section 120.536(1),

2389Florida Statutes, apparently for emphasis.

239413. The meaning of the flush-left paragraph was the

2403subject of a pair of influential appellate decisions, starting

2412with Southwest Fla. Water Mgmt. Dist. v. Save the Manatee Club,

2423Inc. , 773 So. 2d 594 (Fla. 1st DCA 2000). There, the First

2435District Court of Appeal considered a challenge to rule

2444provisions which granted exemptions to certain permitting

2451requirements based upon prior governmental approval. By

2458statute, the agency had been delegated the power to establish

2468exemptions, but the power was qualified: only exemptions that

2477did not "allow significant adverse [environmental] impacts to

2485occur" could be granted. Id. at 600.

249214. Examining the then-recently revised flush-left

2498paragraph, the court found, as an initial matter, that the

2508language prohibiting agencies from adopting any rules except

2516those "that implement or interpret the specific powers and

2525duties granted by the enabling statute" is clear and

2534unambiguous. Id. at 599. The court observed that, "[i]n the

2544context of the entire sentence, it is clear that the authority

2555to adopt an administrative rule must be based on an explicit

2566power or duty identified in the enabling statute. Otherwise,

2575the rule is not a valid exercise of delegated legislative

2585authority." Id.

258715. In the opinion's most memorable paragraph, the court

2596encapsulated its position as follows:

2601[T]he authority for an administrative rule

2607is not a matter of degree. The question is

2616whether the statute contains a specific

2622grant of legislative authority for the rule,

2629not whether the grant of authority is

2636specific enough. Either the enabling

2641statute authorizes the rule at issue or it

2649does not. [T]his question is one that must

2657be determined on a case-by-case basis.

2663Id. (underlining added). In other words, according to the

2672court, the relevant inquiry is whether the specific law being

2682implemented (the enabling statute) evinces a legislative intent

2690to grant the agency the specific power or specific duty behind

2701the subject rule. In answering this question, the specificity

2710of the enabling statute's terms is not the primary

2719consideration. (Obviously, however, specificity is a factor to

2727consider, inasmuch as a relative lack of specificity tends to

2737obscure legislative intent, whereas relative precision in

2744legislative draftsmanship tends to reveal such intent.)

275116. Because, the court found, the exemptions at issue in

2761Manatee Club had been based "entirely on prior approval," and

2771because, moreover, the enabling statute did "not provide

2779specific authority for an exemption based on prior approval,"

2788the disputed rule provisions did "not implement or interpret any

2798specific power or duty granted in the applicable enabling

2807statute;" hence they were invalid. Id.

281317. The first district revisited the flush-left paragraph

2821of Section 120.52(8), Florida Statutes, in Bd. of Trustees of

2831Internal Improvement Trust Fund v. Day Cruise Ass'n , 794 So. 2d

2842696 (Fla. 1st DCA 2001), clarified , rehr'g denied , question

2851certified , 798 So. 2d 847 (Fla. 1st DCA 2001), rev. denied , 823

2863So. 2d 123 (Fla. 2002). The proposed rule under attack in that

2875case would have forbidden the use of sovereignty submerged lands

2885for anchoring cruise ships engaged in carrying passengers on so-

2895called "cruises to nowhere"——legal gambling excursions. Id. at

2904697. A divided court held the challenged rule to be invalid on

2916two interrelated grounds, namely, that it (a) exceeded the

2925agency's rulemaking authority and (b) enlarged the specific

2933provisions of law purportedly implemented.

293818. To make these determinations, the court defined the

2947specific power that the agency had exercised as being the

2957authority to "prohibit[] the use of sovereignty submerged lands

2966on account of lawful [gambling] activities on board ships at sea

2977which have no physical or environmental effect on sovereignty

2986submerged lands or adjacent waters." 794 So. 2d at 702. To

2997this the court added:

3001Although framed as a regulation of anchoring

3008or mooring, the proposed rule does not

3015regulate the mode or manner of mooring. It

3023does not govern the use of the bottom in any

3033way that protects its physical integrity or

3040fosters marine life. Instead it

3045deliberately and dramatically interferes

3049with certain kinds of commerce solely on

3056account of activities that occur many

3062leagues from any dock.

3066Id.

306719. Upon examining the statutory grant of rulemaking

3075authority applicable specifically to sovereignty submerged

3081lands, the court concluded that a provision in the grant which

3092prohibited regulations that "interfere with commerce" qualified

3099the agency's power "in ways that are incompatible with the

3109adoption of the proposed rule." Id. at 702. Thus the proposed

3120rule was outside the agency's rulemaking authority.

312720. The court next looked at the broad constitutional

3136grant of authority to the agency to acquire, administer, manage,

3146control, supervise, conserve, protect, and dispose of state

3154lands, including the sovereignty submerged lands. Id. at 703.

3163It found that "[n]one of the cited constitutional or statutory

3173provisions makes reference to, much less gives specific

3181instructions on the treatment of, the 'day cruise industry' or

3191contains any other specific directive that would provide the

3200support for the proposed rule that the [law] now requires." Id.

3211Driving this point home, the court continued that, despite the

3221breadth of the general language contained in the state

3230constitution,

3231[n]o provision listed as being implemented

3237in the proposed rule purports to authorize——

3244much less specifically to direct——the

3249[agency] to prohibit only certain vessels

3255from mooring on the basis of lawful

3262activities on board (possibly other) vessels

3268once they are on the high seas.

3275* * *

3278The provisions purportedly to be implemented

3284here are completely silent about day cruises

3291and about gambling and confer no authority

3298to bar day cruise vessels——or any other

3305vessels——from sovereignty submerged lands

3309based on lawful activities occurring outside

3315Florida’s territorial jurisdiction.

3318Id. at 703-04 (footnote omitted).

332321. The court concluded, "In the absence of a specific

3333power or duty" which would enable or require "the [agency] to

3344regulate cruises to nowhere or to regulate gambling or to

3354regulate on the basis of activities occurring aboard vessels

3363after they leave sovereignty submerged lands and adjacent

3371waters, the [agency's] rule exceeds the [agency's] rulemaking

3379authority and is an invalid exercise of delegated legislative

3388authority as defined in section 120.52(8)(c) ." Id. at 704

3398(footnote omitted; emphasis in original).

340322. Having studied the basic principles governing rule

3411challenges, it is time to look at the specific objections that

3422Filippi has raised.

342523. On the Sufficiency of the SBE's Rulemaking Authority

3434Filippi complains that the professional-sanctions question

3440is ultra vires , that it is not within the scope of the

3452Department's rulemaking power. Before addressing the merits of

3460Filippi's position, it will be helpful first to structure a

3470decisional path based on the applicable legal principles, which

3479were reviewed above. Considering Section 120.52(8), subparts

3486(b) and (c), Florida Statutes, in conjunction with Manatee Club

3496and Day Cruise , supra , it is possible to articulate an

3506analytical framework for resolving questions regarding

3512rulemaking authority.

351424. The threshold question is whether the agency has been

3524delegated the power to make rules. This issue will rarely be

3535disputed since most agencies have been granted general

3543rulemaking powers. See Day Cruise , 794 So. 2d at 702 (general

3554power to adopt rules "normally should be of little interest"

3564because almost all agencies have been given that). As both

3574Manatee Club and Day Cruise make clear, however, if the agency

3585has been empowered or directed specifically to make particular

3594rules or kinds of rules, it will be necessary, in determining

3605the specific powers or duties delegated to the agency, to pay

3616close attention to any pertinent restrictions or limitations on

3625the agency's rulemaking authority.

362925. After it has been determined that the agency has the

3640necessary grant of rulemaking authority, the next question is:

3649What is the specific power or specific duty that the agency has

3661implemented or interpreted through the challenged rule?

3668Logically, one needs to know what to look for before searching

3679the enabling statute for the requisite grant.

368626. The task of defining the specific power being

3695exercised is arguably the most crucial step in the process of

3706determining a rule's validity. How the exercised power is

3715defined will likely be outcome determinative in most cases . The

3726challenge is to define the power at the appropriate level of

3737generality, neither too narrowly nor too broadly, so that the

3747description of the exercised power accurately reflects the

3755rule's meaning and effect without transforming either. The

3763description of the power should be derived neutrally from the

3773rule's text, without considering (for this purpose) the

3781statutory grant of authority.

378527. As an illustration of the importance——and potential

3793difficulty——of defining the specific agency power purportedly

3800being implemented, the case of Frandsen v. Dep't of Envtl.

3810Prot. , 829 So. 2d 267 (Fla. 1st DCA 2002), rev. denied , 845 So.

38232d 889 (Fla. 2003), cert. denied , 540 U.S. 948, 124 S. Ct. 400,

3836157 L. Ed. 2d 279 (2003), is instructive. The rule at issue in

3849Frandsen regulated "free speech activities" (e.g. public

3856speaking, passing out pamphlets, performances, etc.) in public

3864parks. The agency had the authority to "'supervise, administer,

3873regulate, and control the operation of all public parks . . .'

3885and to 'preserve, manage, regulate, and protect all parks and

3895recreational areas held by the state . . . .'" Id. at 269

3908(quoting § 258.004, Fla. Stat. (1999)). The court found that

3918the rule "falls under [this] specific grant of authority and is

3929otherwise" valid. Id.

393228. The court, however, did not expressly define the

3941specific power being exercised through the rule or otherwise

3950explain how the rule implemented or interpreted such a power.

3960(Most of its opinion concerns the First Amendment challenge to

3970the rule's constitutionality.) Yet the proper definition of the

3979power, at the level of generality that the rule's text warrants,

3990is not self-evident. By "zooming in" on the rule and defining

4001the power at a low level of generality, as was done in Day

4014Cruise (which decision the Frandsen court cited with approval),

4023the power that the agency implemented could reasonably be

4032described as the authority to regulate speech or other

4041expressive conduct occurring in a public park. Because the

4050enabling statue is silent about free speech activities, just as

4060the grants of authority examined in Day Cruise were silent about

"4071cruises to nowhere," defining the power thusly might drive a

4081decision that the free speech rule is invalid.

408929. Or it might not. The conduct being regulated by the

4100rule in Frandsen is arguably distinguishable from the gambling

4109activities which the proposed rule in Day Cruise sought to

4119curtail. For the free speech rule, unlike the proposed gambling

4129ship regulation, only reaches activities taking place on the

4138lands within the agency's jurisdiction, whereas the proposed

4146rule directed at "cruises to nowhere" would have affected

4155conduct occurring outside of, and having no effect on, the lands

4166within the agency's jurisdiction. The difference between

4173regulating the properties and facilities comprising public

4180parks, on the one hand, and regulating free speech activities

4190in, on, or making use of such properties and facilities, on the

4202other, might fairly be considered a matter of degree. On that

4213basis, the decision in Frandsen can be squared with Day Cruise .

422530. The question whether the free speech rule at issue in

4236Frandsen implemented a specific power delegated to the agency is

4246a closer one than the court's opinion suggests. The court made

4257the answer seem obvious by not stating the agency power being

4268exercised. As shown above, however, had the power been stated

4278at a level of generality supported by the rule's text, the rule

4290could conceivably have been invalidated on the authority of

4299Manatee Club and Day Cruise without doing violence to the

4309principles underlying either of those decisions. The point is

4318not to criticize Frandsen , for the decision in that case is

4329consistent, too, with Manatee Club and Day Cruise ; it is to

4340demonstrate the importance, which cannot be gainsaid, of

4348identifying and accurately stating the power being exercised

4356through the rule under review.

436131. The next analytical step, once the specific power

4370being implemented has been defined, is to examine the enabling

4380statute to determine whether the specific power or duty, as

4390defined, is among the specific powers or duties delegated to the

4401agency by the legislature. This entails the "difficult task" of

4411identifying and defining "the kind of delegation that is

4420sufficient to support a rule." St. Johns River Water Mgmt.

4430Dist. v. Consolidated-Tomoka Land Co. , 717 So. 2d 72, 79 (Fla.

44411st DCA 1998)(italics in original).

444632. Unfortunately, less judicial attention has been paid

4454to defining the kind of enabling statute that is sufficient to

4465support a rule than to pointing out, with regard to enabling

4476statutes, that which is either insufficient or unnecessary.

4484Thus, for example, it is now axiomatic that a delegation is

4495insufficient to support a rule if it merely prescribes a class

4506of powers and duties. "An administrative rule must fall within

4516the class of powers and duties delegated to the agency, but that

4528alone will not make the rule a valid exercise of legislative

4539power." Manatee Club , 773 So. 2d 599.

454633. A similarly well settled proposition holds that it is

4556unnecessary for an enabling statute to be detailed. The court

4566reached this conclusion in Manatee Club , just as it had in

4577Consolidated-Tomoka in a "part of [that] decision [which]

4585appears to have survived" subsequent legislation. See Manatee

4593Club , 773 So. 2d at 599. The surviving piece of Consolidated-

4604Tomoka provides in pertinent part as follows:

4611In our view, [the since-amended, 1996

4617version of the flush-left paragraph, which

4623is no longer the law,] restricts rulemaking

4631authority to subjects that are directly

4637within the class of powers and duties

4644identified in the enabling statute. It was

4651not designed to require a minimum level of

4659detail in the statutory language used to

4666describe the powers and duties.

4671Consolidated-Tomoka , 717 So. 2d at 79 (emphasis added).

467934. Fortunately, the available guidance is not all

4687negative in nature. In Manatee Club , the court taught, in an

4698affirmative way, that the enabling statute "must contain a

4707specific grant of legislative authority for the rule . . . ."

4719773 So. 2d at 599 (emphasis added). Or, as the court put it

4732another way, "it is clear that the authority to adopt an

4743administrative rule must be based on an explicit power or duty

4754identified in the enabling statue." Id. (emphasis added).

4762Taking these positive statements together, which tell what is

4771required for a delegation of legislative authority to be

4780sufficient to support a rule, it is concluded that the flush-

4791left paragraph, in its present form, restricts rulemaking

4799authority to:

4801(a) specific (or explicit) powers and

4807duties

4808(b) whose distinguishing characteristics

4812(i.e. the features that make the power

4819specific and not merely categorical )

4825(c) are established ("identified"), that

4832is, actually present ("contained"), in the

4840enabling statute.

484235. In this third stage of the analysis, then, having at

4853the second step defined the specific power being exercised (and,

4863in the process, revealed its distinguishing characteristics),

4870the question is whether the enabling statute either explicitly

4879or implicitly (if ordinary rules of statutory construction

4887permit such an inference) includes within its provisions the

4896characteristics that give the specific power its identity (or at

4906least enough of such characteristics to support the conclusion

4915that the delegated power and the exercised power are identical ),

4926thereby evincing an intent to confer the specific power on the

4937agency.

493836. The last question, assuming the enabling statute

4946delegates the specific power or duty being exercised, is whether

4956the rule at issue actually implements or interprets such power

4966or duty, for a rule, to be valid, must implement or interpret

4978the specific powers granted. If, however, the specific power or

4988duty was properly defined earlier in the analysis, and if,

4998further, the specific power or duty, as defined, was properly

5008located in the enabling statute, then the conclusion here will

5018probably be foregone.

502137. The foregoing legal frame of reference can now be used

5032to determine whether the question regarding professional

5039sanctions is within the Department's rulemaking authority.

504638. The first question is whether the SBE has been granted

5057general rulemaking powers. The answer is yes . See , e.g. , §

50681001.02(1), Fla. Stat. (The SBE "has authority to adopt rules

5078pursuant to ss. 120.536(1) and 120.54 to implement the

5087provisions of law conferring duties upon it . . . ."); §

51001001.02(2)(n), Fla. Stat. (The SBE has the duty to "adopt

5110cohesive rules pursuant to ss. 120.536(1) and 120.54, within

5119statutory authority."); and § 1001.03(3), Fla. Stat. ("The State

5130Board of Education shall . . . establish competencies, including

5140. . . certification requirements for all school-based personnel,

5149and prescribe rules in accordance with which the professional,

5158temporary, and part-time certificates shall be issued by the

5167Department of Education to applicants who meet the standards

5176prescribed by such rules[.]"). Clearly the SBE possesses the

5186necessary general grant of rulemaking authority.

519239. Consequently, it is necessary to take the second

5201analytical step, which entails defining the specific power or

5210duty being exercised through the professional-sanctions

5216question. Taking full account of the question's meaning and

5225effect, it is determined that the specific power which the SBE

5236has exercised is the power to ask each applicant for a teaching

5248certificate to disclose the existence of, and some basic facts

5258concerning: (a) any past disciplinary measures taken against

5266the applicant in his capacity as a professional licensee; (b)

5276any disciplinary proceedings currently pending against the

5283applicant in his capacity as a professional licensee; and (c)

5293any measures currently being taken in response to an application

5303of the applicant for a professional license, as a result of

5314which such application is in danger of being disapproved.

532340. The next question, then, is whether this particular

5332power is among the specific powers and duties that the

5342legislature has granted to the SBE. In this regard, Section

53521012.55(1), Florida Statutes, imposes on the SBE certain duties,

5361providing in pertinent part as follows:

5367The State Board of Education shall . . .

5376establish competencies, including . . .

5382certification requirements for all school-

5387based personnel, and adopt rules in

5393accordance with which the professional,

5398temporary, and part-time certificates shall

5403be issued by the Department of Education to

5411applicants who meet the standards prescribed

5417by such rules for their class of service.

542541. In exercising its specific statutory duty to establish

5434certification requirements, the SBE must follow Section 1012.56,

5442Florida Statutes, which prescribes the minimum requirements for

5450obtaining a teaching certificate. This statute provides, in

5458relevant part, as follows:

5462(2) ELIGIBILITY CRITERIA.--To be eligible

5467to seek certification, a person must:

5473(a) Be at least 18 years of age.

5481(b) File an affidavit that the applicant

5488subscribes to and will uphold the principles

5495incorporated in the Constitution of the

5501United States and the Constitution of the

5508State of Florida and that the information

5515provided in the application is true,

5521accurate, and complete. The affidavit shall

5527be by original signature or by electronic

5534authentication. The affidavit shall include

5539substantially the following warning:

5543WARNING: Giving false information in order

5549to obtain or renew a Florida educator's

5556certificate is a criminal offense under

5562Florida law. Anyone giving false

5567information on this affidavit is subject to

5574criminal prosecution as well as disciplinary

5580action by the Education Practices

5585Commission.

5586(c) Document receipt of a bachelor's or

5593higher degree from an accredited institution

5599of higher learning, or a nonaccredited

5605institution of higher learning that the

5611Department of Education has identified as

5617having a quality program resulting in a

5624bachelor's degree, or higher. Each

5629applicant seeking initial certification must

5634have attained at least a 2.5 overall grade

5642point average on a 4.0 scale in the

5650applicant's major field of study. The

5656applicant may document the required

5661education by submitting official transcripts

5666from institutions of higher education or by

5673authorizing the direct submission of such

5679official transcripts through established

5683electronic network systems. The bachelor's

5688or higher degree may not be required in

5696areas approved in rule by the State Board of

5705Education as nondegreed areas.

5709(d) Submit to background screening in

5715accordance with subsection (9). If the

5721background screening indicates a criminal

5726history or if the applicant acknowledges a

5733criminal history, the applicant's records

5738shall be referred to the investigative

5744section in the Department of Education for

5751review and determination of eligibility for

5757certification. If the applicant fails to

5763provide the necessary documentation

5767requested by the department within 90 days

5774after the date of the receipt of the

5782certified mail request, the statement of

5788eligibility and pending application shall

5793become invalid.

5795(e) Be of good moral character.

5801(f) Be competent and capable of performing

5808the duties, functions, and responsibilities

5813of an educator.

5816(g) Demonstrate mastery of general

5821knowledge, pursuant to subsection (3).

5826(h) Demonstrate mastery of subject area

5832knowledge, pursuant to subsection (4).

5837(i) Demonstrate mastery of professional

5842preparation and education competence,

5846pursuant to subsection (5).

5850§ 1012.56(2), Fla. Stat.

585442. In addition to setting forth eligibility criteria,

5862Section 1012.56 specifies grounds for denying an application, as

5871follows:

5872The Department of Education may deny an

5879applicant a certificate if the department

5885possesses evidence satisfactory to it that

5891the applicant has committed an act or acts,

5899or that a situation exists, for which the

5907Education Practices Commission would be

5912authorized to revoke a teaching certificate.

5918§ 1012.56(11)(a), Fla. Stat.

592243. The acts or situations for which the EPC is authorized

5933to revoke a teaching certificate are enumerated in Section

59421012.795(1), Florida Statutes, which authorizes the EPC to take

5951disciplinary action (including revocation of a guilty teacher's

5959certificate) against a certified teacher who:

5965(a) Obtained or attempted to obtain an

5972educator certificate by fraudulent means.

5977(b) Has proved to be incompetent to teach

5985or to perform duties as an employee of the

5994public school system or to teach in or to

6003operate a private school.

6007(c) Has been guilty of gross immorality or

6015an act involving moral turpitude.

6020(d) Has had an educator certificate

6026sanctioned by revocation, suspension, or

6031surrender in another state.

6035(e) Has been convicted of a misdemeanor,

6042felony, or any other criminal charge, other

6049than a minor traffic violation.

6054(f) Upon investigation, has been found

6060guilty of personal conduct which seriously

6066reduces that person's effectiveness as an

6072employee of the district school board.

6078(g) Has breached a contract, as provided in

6086s. 1012.33(2).

6088(h) Has been the subject of a court order

6097directing the Education Practices Commission

6102to suspend the certificate as a result of a

6111delinquent child support obligation.

6115(i) Has violated the Principles of

6121Professional Conduct for the Education

6126Profession prescribed by State Board of

6132Education rules.

6134(j) Has otherwise violated the provisions

6140of law, the penalty for which is the

6148revocation of the educator certificate.

6153(k) Has violated any order of the Education

6161Practices Commission.

6163(l) Has been the subject of a court order

6172or plea agreement in any jurisdiction which

6179requires the certificateholder to surrender

6184or otherwise relinquish his or her

6190educator's certificate. A surrender or

6195relinquishment shall be for permanent

6200revocation of the certificate. A person may

6207not surrender or otherwise relinquish his or

6214her certificate prior to a finding of

6221probable cause by the commissioner as

6227provided in s. 1012.796.

623144. The SBE's specific authority with regard to the

6240establishment of certification requirements must be determined

6247based on a reading together of Sections 1012.55, 1012.56, and

62571012.795, Florida Statutes, which are, on the common subject of

6267such requirements, in pari materia ; 3 these enabling statutes,

6276taken as a whole, either authorize the professional-sanctions

6284question, or they do not.

628945. There can be no reasonable disagreement with the

6298proposition that, in exercising its specific duty to establish

6307certification requirements, the SBE is authorized (indeed

6314required) to create an application designed to identify

6322applicants who meet such requirements——and to weed out those who

6332do not. See § 1012.56(1), Fla. Stat. (requiring each person

6342seeking a teaching certificate to submit a completed application

6351therefor). As a matter of logic, therefore, it follows that the

6362SBE is specifically empowered to ask applicants, in the

6371application, not only about any of the statutory eligibility

6380criteria, but also about acts or situations which, if known to

6391the Department, would afford a basis for denial of an

6401application.

640246. Some of the eligibility (and disqualifying) criteria

6410lend themselves to straightforward questions. For example, an

6418application may be denied if the applicant has had a teaching

6429certificate "sanctioned by revocation, suspension, or surrender

6436Stat. To the extent the professional-sanctions question merely

6444asks the applicant to disclose a direct basis for denial , such

6455as whether he has had a teaching certificate sanctioned by

6465revocation, suspension, or surrender in another state, the

6473question is clearly within the SBE's specific powers and duties.

648347. Other eligibility (and disqualifying) criteria are

6490less amenable to direct questions. Asking an applicant directly

6499whether he is of good moral character, for example, or competent

6510and capable of performing the duties, functions and

6518responsibilities of a teacher, is unlikely to uncover any useful

6528information; after all, few applicants (one hopes) believe they

6537themselves are immoral or incompetent, and very few (if any) of

6548those who do would honestly admit to being either. Obviously,

6558in reference to matters, such as character and competence, which

6568require the Department to make judgment calls about an

6577applicant, what must be learned through the application are

6586basic objective facts from which ultimate determinations (e.g.

6594the applicant appears to be of good moral character) can be

6605made.

660648. In complaining that the SBE has exercised authority it

6616doesn't have in asking about professional sanctions, Filippi has

6625completely overlooked that some matters simply must be inquired

6634about indirectly, if useful information is to be obtained. The

6644undersigned concludes that just as the SBE is specifically

6653empowered to ask directly about any matter that is statutorily

6663required for certification, or that would be a direct basis for

6674denial of an application, so too is the SBE authorized

6684specifically to inquire indirectly about all such matters, at

6693least to the extent such indirect questions are calculated to

6703discover markers for the presence of eligibility (or

6711disqualifying) criteria.

671349. As it happens, this case does not present any close or

6725difficult issues, for the professional-sanctions question is

6732safely within the limits of the SBE's authority to inquire. 4

6743This is because, insofar as the matters inquired about in the

6754professional-sanctions question are not direct grounds for

6761denial, they are clearly markers for such grounds. Past

6770discipline or a pending disciplinary action, for example,

6778reveals at a minimum that the applicant has gotten into

6788sufficient trouble to draw the attention of a regulatory agency,

6798which is the sort of thing that marks a person as possibly

6810having c haracterological defects that ought to be investigated.

6819And apart from that, the underlying acts or situations that led

6830to the prior discipline or pending disciplinary proceeding,

6838about which the Department might not learn without posing the

6848professional-sanctions question (or something like it), could be

6856grounds themselves for denial of the application.

686350. The same can be said about the specific query

6873involving actions pending against an application. The very fact

6882that another licensing authority has singled out an applicant's

6891application for the purpose of taking some adverse action

6900signals that something about the applicant's background or

6908credentials is possibly amiss. Whatever that something is ought

6917to be investigated, because persons whose other applications

6925have been marked for disapproval might have problems that would

6935counsel against the issuance of a Florida teaching certificate

6944as well.

694651. In summary, the undersigned concludes, based on a

6955reading together of Sections 1012.55, 1012.56, and 1012.795,

6963Florida Statutes, that the legislature intended to empower the

6972SBE with the specific authority to ask teaching-certificate

6980applicants to disclose any past professional sanctions, pending

6988disciplinary proceedings, and any actions pending in response to

6997an application for professional licensure which reflect a

7005negative view of such application.

701052. It is concluded, finally, that the professional-

7018sanctions question does implement a specific power or duty

7027delegated by the enabling statutes. Accordingly, because the

7035question meets the criteria specified in the flush-left

7043paragraph, it comes within the SBE's rulemaking authority.

7051On Whether the Professional-Sanctions

7055Question Enlarges or Modifies the Law Implemented

706253. Filippi argues that the professional-sanctions

7068question provides the Department with authority to deny an

7077application if the applicant either (a) has had a professional

7087license "merely reprimanded or conditioned" in another state, or

7096(b) is currently a party to an action against an application for

7108a professional license. This alleged authority, according to

7116Filippi, enlarges or modifies Section 1012.795(1)(d), Florida

7123Statutes, which authorizes the EPC to revoke a teaching

7132certificate if the holder has surrendered a similar certificate

7141in another state, or had one revoked or suspended——but not for

7152any lesser or different sanctions, and not on the basis of

7163actions taken against applications (as opposed to certificates

7171or licenses).

717354. Contrary to Filippi's argument, however, the

7180professional-sanctions question does not confer any authority on

7188the Department, either expressly or by necessary implication, to

7197deny an application on the basis of matters not specified in the

7209statutes. The question, rather, merely asks for information

7217that, while not necessarily disqualifying per se, usually would

7226suggest the presence of a possibly disqualifying problem.

723455. To illustrate, the fact that an action is pending in

7245another state against the applicant's application in that state

7254for a professional license would not , of itself, be a basis for

7266the Department to deny his Florida application, and nothing in

7276the professional-sanctions question provides otherwise. On the

7283other hand, the reason for that action might be. (Suppose, for

7294example, the other state's licensing authority believes the

7302applicant is not competent to teach. If the Department agrees

7312with that assessment, after independently reviewing the

7319situation, then it should deny the application, not because of

7329the other state's action, but because the applicant is

7338incompetent.) In short, the Department is trying to discover

7347facts which, having previously come to the attention of another

7357licensing agency, have caused concern about the applicant.

7365Facts that have caused such concern elsewhere obviously are (and

7375should be) of interest to the Department.

738256. It is concluded that the professional-sanctions

7389question does not enlarge or modify any of the provisions of law

7401implemented.

7402On Whether the Professional-Sanctions Question Is Vague

740957. Filippi advances a number of arguments in support of

7419his contention that the professional-sanctions question——and

7425particularly the subpart thereof which asks about "any action

7434pending . . . against an application" (the "Troubled Application

7444Question")——was vague, ambiguous, and confusing. It is not

7453necessary here to examine in detail Filippi's contentions

7461regarding the alleged opacity of the Troubled Application

7469Question or the professional-sanctions question as a whole.

7477Suffice to say that while the professional-sanctions question is

7486not an example of skillful draftsmanship, neither is it

7495incomprehensible. Filippi has a point, in other words, but he

7505tries to make entirely too much of it.

751358. Upon being read for the first time, for example, the

7524Troubled Application Question could cause a reasonable applicant

7532who has applied previously for a certificate or has such an

7543application pending somewhere to pause and think about what is

7553being asked. It is conceivable too that, as Filippi argues, an

7564applicant might ponder whether an action pending against an

7573application——or even the denial thereof——constitutes a

"7579sanction." (Although it is conceivable , the undersigned

7586believes that very few ordinary applicants actually would draw

7595the technical legal distinction between a disciplinary sanction

7603against a license, on the one hand, and the regulatory denial of

7615an application, on the other. The undersigned is fairly

7624confident that the term "sanction," as used in everyday

7633discourse, is broad enough to include the denial of an

7643application for professional licensure within its range of

7651customary meanings.) Or, as Filippi also insists, an applicant

7660might possibly stumble over the "compound" nature of the

7669professional-sanctions question, with its several subparts.

767559. It is difficult to imagine, however, that a reasonable

7685applicant ultimately would be stymied by the professional-

7693sanctions question, after giving it some careful attention and

7702thought. At bottom, given a fair reading, the Troubled

7711Application Question requires an affirmative answer if any

7719application of the applicant, owing to a potentially fatal flaw,

7729has been culled from the batch of applications moving through

7739the pipeline towards approval and identified as problematic.

7747The key words are: (a) "action pending ," which reasonably

7756denotes both (i) a continuing, as yet unfinished proceeding

7765(e.g. an administrative appeal), and (ii) an impending act (e.g.

7775a decision expected to come soon); and (b) "action . . . against

7788an application," which reasonably means that the posture of the

7798ongoing proceeding or imminent decision is unfavorable (or in

7807opposition) to the application. (Emphasis added.) Any

7814application which is the object of a "pending" action that is

7825also "against" the application is, by any reasonable measure, an

7835application in trouble. A reasonable applicant should be able

7844to figure out, without too much difficulty, that such an

7854application must be disclosed.

785860. The test for determining the vagueness of an

7867administrative rule is whether persons of common understanding

7875and intelligence must guess at its meaning. See State, Dep't of

7886Health & Rehabilitative Services v. Health Care & Retirement

7895Corp. , 593 So. 2d 539, 541 (Fla. 1st DCA 1992). The

7906professional-sanctions question, though it might be clumsily

7913worded, is yet not so obscure that ordinary people must guess at

7925its meaning. The question is not, therefore, invalid for

7934vagueness pursuant to Section 120.52(8)(d), Florida Statutes.

7941T HE A LLEGED U NADOPTED R ULE

794961. Filippi alleges that the form he used for his Online

7960Applications was an unadopted rule because, in December 2004,

7969the SBE had amended Florida Administrative Code Rule 6A-

79784.0012(1)(a) so as to incorporate by reference an updated

7987version of the application form, which updated form the

7996Department mistakenly failed to post online for nearly two

8005years. Pursuant to Section 120.56(4), Florida Statutes, Filippi

8013contends that the Department's failure to update the online

8022version of the teaching-certificate application violated Section

8029120.54(1)(a), Florida Statute, which provides that each agency

8037statement defined as a "rule" must be formally adopted as soon

8048as feasible and practicable.

805262. The threshold question that Filippi's challenge raises

8060is whether the outdated online form was a "rule" as that term is

8073statutorily defined. The definition is found in Section

8081120.52(15), Florida Statutes, which provides in relevant part as

8090follows:

"8091Rule" means each agency statement of

8097general applicability that implements,

8101interprets, or prescribes law or policy or

8108describes the procedure or practice

8113requirements of an agency and includes any

8120form which imposes any requirement or

8126solicits any information not specifically

8131required by statute or by an existing rule.

8139The term also includes the amendment or

8146repeal of a rule.

8150(Emphasis added.)

815263. As a form which solicits information not specifically

8161required by statute, the outdated application certainly could be

8170a rule-by-definition. But under the somewhat unusual facts of

8179this case, such a conclusion would be unwarranted, as will be

8190explained.

819164. Suppose that an agency official in good faith informs

8201an applicant that, to be approved for licensure, he needs to do

"8213X." Suppose, however, that the official is mistaken: the

8222agency has an applicable rule which does not , in fact, require

8233X, and, moreover, it is undisputed that the agency never

8243intended to require X. It is clear to the undersigned that the

8255statement, "You must do X to obtain a license," while appearing

8266to be a rule-by-definition, is not a "rule" because it does not

8278declare law or agency policy. An erroneous statement should not

8288be elevated to the status of a rule unless the agency has

8300enforced the statement or otherwise knowingly allowed it to

8309operate as a rule, in which latter event the agency conduct, by

8321making the statement effective , would belie any subsequent

8329characterization of the statement as a "mistake."

833665. Expanding the foregoing hypothetical will illustrate

8343the point. Suppose the same facts as above, except that, when

8354the time comes to make a decision, the agency announces its

8365intent to deny the application because the applicant did not

8375meet the requirement X. If the applicant requests a substantial

8385interests hearing and the agency thereafter insists that the

8394requirement to do X is a condition of licensure, then the agency

8406has taken ownership of the statement, at which point the

8416statement might well be found to constitute a rule-by-

8425definition, even if it were born of a mistake.

843466. Suppose however that, in attempting to meet the

8443requirement X, the applicant intentionally lied to the agency

8452and represented that he had done X when in fact he had not. If

8466the agency discovers the deception and announces its intent to

8476deny the application because the applicant attempted to obtain a

8486license by fraudulent means, is its position tantamount to

8495adopting, as agency policy, the original, mistaken statement,

"8503You must do X"? Or could the agency, consistent with its

8514intended denial, nevertheless maintain that X was not actually a

8524requirement and hence the statement "do X" not a rule-by-

8534definition?

853567. The undersigned concludes that there is no logical

8544inconsistency between (a) disowning the statement, "You must do

8553X," as an erroneous statement that does not reflect agency

8563policy, and (b) denying licensure to an applicant who, when

8573required (mistakenly) to do X, fraudulently reports that he has

8583done X when he has not. Position (a) would be logically

8594inconsistent, however, with (c) denying licensure to an

8602applicant for failing to do X. This is because position (c)

8613amounts to enforcement of the statement requiring X, which is

8623inconsistent with disowning the statement. In contrast,

8630position (b) does not amount to enforcing the statement

8639requiring X; rather, position (b) rests on the enforcement of a

8650separate and independent duty of the applicant: to tell the

8660truth (or, stated negatively, not to use fraudulent means to

8670obtain a license).

867368. Here, the outdated online form remained available for

8682use by applicants such as Filippi because of a mistake. Neither

8693the SBE nor the Department intended that applicants should use

8703the old form. As soon as the mistake was discovered, the online

8715form was updated to conform to the then-current form, which had

8726been duly adopted as a formal rule.

873369. The undersigned concludes that the outdated form, like

8742the hypothetical statement, "You must do X," in the first

8752example above, was merely a mistake——nothing more. The old form

8762did not declare law or agency policy. Indeed, the SBE would not

8774have adopted the old form in accordance with the rulemaking

8784mandate of Section 120.54(1)(a), Florida Statutes, had it known

8793the old form remained (erroneously) in use, because it did not

8804want the old form to be used any longer. The notion that the

8817SBE should have adopted its outdated form as a rule (which

8828underlies Filippi's challenge) is nonsensical.

883370. There is, moreover, no evidence in the record

8842suggesting that either the SBE or the Department ever

8851deliberately took action to enforce or otherwise make operative

8860the challenged provisions (i.e. the professional-sanctions

8866question) of the outdated form, to the extent such provisions

8876differed from the corresponding provisions of the current,

8884adopted form. 5 (It is not clear that such enforcement could have

8896occurred, in any event, because the substantive difference

8904between the old professional-sanctions question and the new one

8913was the addition (in the new application) of a subpart that

8924asked about actions pending against a license. In other words,

8934the new application was more inquisitive than the old one, and

8945hence the Department's failure consistently to use the new form

8955was detrimental only to the Department.)

896171. The upshot is that the outdated form was not a "rule."

8973For that reason, the Department's failure to update the online

8983application form did not violate Section 120.54(1)(a), Florida

8991Statutes.

899272. That said, however, even if an erroneous statement,

9001which neither declared law or policy nor was given effect as

9012such, can be deemed a rule-by-definition, the undersigned still

9021would conclude that Section 120.54(1)(a) was not violated in

9030this instance, for the reasons which follow.

903773. As a starting point, the undersigned believes it is

9047self-evident, and therefore he concludes, that the outdated form

9056could be an "unadopted" rule only to the extent that its terms

9068and/or meaning differed from the terms and/or meaning of the

9078updated, adopted form. For example, if the updated form

9087incorporated, say, 90 percent of the form it was intended to

9098replace, then only ten percent (or so) of the outdated form

9109could possibly be considered an "unadopted" rule.

911674. Here, Filippi challenges only the professional-

9123sanctions question as an unadopted rule. The version of this

9133question that appears in the outdated form (the alleged

"9142unadopted" rule) is substantially similar to the version that

9151appears in the updated form. The one substantive difference

9160between the two, as mentioned above, is that the updated

9170professional-sanctions question contains an additional subpart,

9176making it more inquisitive. (The few other differences merely

9185fine-tune the language in ways that do not materially change the

9196substance of the professional-sanctions question.) Put another

9203way, the outdated form is different from the revised version,

9213not for what it says, but largely because of what it does not

9226say.

922775. Consequently, applicants who applied online between

9234December 2004 and October 2006, unlike applicants who submitted

9243applications on paper during this period, were not asked about

9253actions pending against other licenses they might have held.

9262The Department's failure to ask some applicants this question,

9271which was in essence a failure to follow Rule 6A-4.0012(1)(a),

9281might have been unfair (to applicants who applied on paper) and

9292might have afforded an aggrieved applicant (presumably one who

9301had applied on paper) a basis for complaint. But under the

9312circumstances of this case, the undersigned concludes that the

9321Department's not asking online applicants the question about

9329pending disciplinary proceedings——this agency silence ——cannot be

9336viewed as an agency statement .

934276. Because it was not an "agency statement," the

9351Department's failure to ask online applicants about actions

9359pending against other licenses they might have held was not a

"9370rule" under Section 120.52(15), Florida Statutes.

9376A TTORNEY ' S F EES AND C OSTS

938577. Pursuant to Section 120.595(3), Florida Statutes, the

9393undersigned is required to award reasonable costs and reasonable

9402attorney's fees to the agency for successfully defending a

9411challenge to an existing rule if he determines that the opposing

9422party brought the rule challenge for an "improper purpose." See

9432§ 120.595(3), Fla. Stat. In this context, the term "improper

9442purpose" means "participation in a proceeding . . . primarily to

9453harass or to cause unnecessary delay or for frivolous purpose or

9464to needlessly increase the cost of litigation, licensing, or

9473securing the approval of an activity." § 120.595(1)(e)1., Fla.

9482Stat. (emphasis added).

948578. The undersigned finds that Filippi brought the instant

9494action primarily for the purpose of increasing his chances of

9504obtaining a teaching certificate. Therefore, he did not

9512participate herein for an "improper purpose" as defined by

9521Section 120.595(1)(e), Florida Statutes. Accordingly,

9526attorney's fees and costs shall not be awarded to the Department

9537or the SBE.

9540ORDER

9541Based on the foregoing Findings of Fact and Conclusions of

9551Law, it is ORDERED that the revised application, which was duly

9562adopted as a rule, is not an invalid exercise of delegated

9573legislative authority; and that the outdated application, which

9581was mistakenly made available to online applicants for a time

9591after the adoption of the revised form, was not an unlawful

9602unadopted rule.

9604DONE AND ORDERED this 20th day of June, 2008, in

9614Tallahassee, Leon County, Florida.

9618___________________________________

9619JOHN G. VAN LANINGHAM

9623Administrative Law Judge

9626Division of Administrative Hearings

9630The DeSoto Building

96331230 Apalachee Parkway

9636Tallahassee, Florida 32399-3060

9639(850) 488-9675 SUNCOM 278-9675

9643Fax Filing (850) 921-6847

9647www.doah.state.fl.us

9648Filed with the Clerk of the

9654Division of Administrative Hearings

9658this 20th day of June, 2008.

9664ENDNOTES

96651 / While this proceeding was pe nding, Eric J. Smith, Ph.D.,

9677succeeded Mr. Winn as Florida's Co mmissioner of Education.

96862 / An expanded discussion of this topic appears in Home Delivery

9698Incontinent Supplies Co., Inc. v. Agency For Health Care

9707Administration , No. 07-4167RX, 2008 Fla. Div. Adm. Hear. LEXIS

9716205, *11-*26 (Apr. 18, 2008).

97213 / See , e.g. , Mehl v. State , 632 So. 2d 593, 595 (Fla.

97341993)(separate statutory provisions that are in pari materia

9742should be construed to express a unified legislative purpose);

9751Lincoln v. Florida Parole Commission , 643 So. 2d 668, 671 (Fla.

97621st DCA 1994)(statutes on same subject and having same general

9772purpose should be construed in pari materia ).

97804 / To be sure, the undersigned can imagine questions that would

9792Suppose, for example, there was a question on the application

9802that asked: Do you look at pornography on the internet? If

9813yes, identify the sites that you visit, the frequency of your

9824visits, and the approximate number of hours per week you spend

9835engaged in this activity. Whether such a question would be

9845permissible the undersigned obviously need not decide in this

9854case, but the pornography inquiry is problematic in ways that

9864the professional-sanctions question is not. While an

9871applicant's consumption of internet pornography might be a

9879marker for the presence of eligibility or disqualifying criteria

9888( e.g. the ones relating to morality), inquiring into such a

9899matter would implicate privacy concerns that the professional-

9907sanctions question does not raise. The pornography question is

9916therefore a different kind of question, and deciding whether it

9926falls within the SBE's specific authority to inquire would be

9936much more difficult than is the resolution of the issues at

9947hand.

99485 / The Department did allege (and prove), in Case No. 07-4628,

9960that Filippi had given false and fraudulent answers to the

9970Troubled Application Question. That, however, did not amount to

9979enforcement of the Troubled Application Question, but rather

9987vindicated the separate and independent duty, arising from §

99961012.56(2)(b), Fla. Stat., of applicants to tell the whole

10005truth. Further, the Troubled Application Question is common to

10014both the outdated application and the revised (adopted)

10022application. Therefore, it was not in any meaningful sense

"10031unadopted."

10032COPIES FURNISHED:

10034Timothy P. Atkinson, Esquire

10038Gavin D. Burgess, Esquire

10042Oertel, Fernandez, Cole & Bryant

10047Post Office Box 1110

10051Tallahassee, Florida 32302-1110

10054Charles T. Whitelock, Esquire

10058Whitelock & Associates, P.A.

10062300 Southeast 13th Street

10066Fort Lauderdale, Florida 33316-1924

10070Deborah K. Kearney, General Counsel

10075Department of Education

100781244 Turlington Building

10081Tallahassee, Florida 32399-0400

10084Scott Boyd, Executive Director/General Counsel

10089Joint Administrative Procedures Committee

10093120 Holland Building

10096Tallahassee, Florida 32399-1300

10099Dr. Eric J. Smith, Commissioner

10104Department of Education

10107Turlington Building, Suite 1514

10111325 West Gaines Street

10115Tallahassee, Florida 32399-0400

10118Liz Cloud, Program Administrator

10122Administrative Code

10124Department of State

10127R. A. Gray Building, Suite 101

10133Tallahassee, Florida 32399

10136NOTICE OF RIGHT TO JUDICIAL REVIEW

10142A party who is adversely affected by this Final Order is

10153entitled to judicial review pursuant to Section 120.68, Florida

10162Statutes. Review proceedings are governed by the Florida Rules

10171of Appellate Procedure. Such proceedings are commenced by

10179filing the original notice of appeal with the Clerk of the

10190Division of Administrative Hearings and a copy, accompanied by

10199filing fees prescribed by law, with the District Court of

10209Appeal, First District, or with the District Court of Appeal in

10220the Appellate District where the party resides. The notice of

10230appeal must be filed within 30 days of rendition of the order to

10243be reviewed.

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Date
Proceedings
PDF:
Date: 06/20/2008
Proceedings: DOAH Final Order
PDF:
Date: 06/20/2008
Proceedings: Final Order (hearing held February 15, March 24, and April 4, 2008). CASE CLOSED.
PDF:
Date: 05/28/2008
Proceedings: Petitioner`s Motion for Attorneys` Fees and Costs filed.
PDF:
Date: 05/27/2008
Proceedings: Petitioner Thomas R. Flippi`s Proposed Final Order filed.
PDF:
Date: 05/27/2008
Proceedings: Respondents, Department of Education and State Board of Education, Proposed Final Order/Request for Attorney Fees and Costs filed.
PDF:
Date: 05/22/2008
Proceedings: Order Severing Consolidated Cases.
PDF:
Date: 05/21/2008
Proceedings: Consented Motion to Increase Proposed Recommended Order Page Length Requirement filed.
PDF:
Date: 05/15/2008
Proceedings: Amended Order Regarding Proposed Recommended and Final Orders (proposed recommended and final orders shall be filed on or before May 27, 2008).
PDF:
Date: 05/14/2008
Proceedings: Order Regarding Proposed Recommended and Final Orders (proposed recommended and final orders shall be filed on or before May 26, 2008).
Date: 05/14/2008
Proceedings: Transcript (Volumes I & II) filed.
PDF:
Date: 05/09/2008
Proceedings: Affidavit (2) filed.
PDF:
Date: 05/08/2008
Proceedings: Letter to Judge Van Laningham from T. Atkinson regarding hearing transcripts filed.
PDF:
Date: 05/06/2008
Proceedings: Transcript of Proceedings (Volumes III and IV) filed.
Date: 05/02/2008
Proceedings: Transcript of Proceedings (Volume II) filed.
Date: 04/04/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 04/02/2008
Proceedings: Agency`s court reporter confirmation letter filed with the Judge.
PDF:
Date: 03/25/2008
Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for April 4, 2008; 9:00 a.m.; Miami and Tallahassee, FL).
Date: 03/24/2008
Proceedings: CASE STATUS: Hearing Partially Held; continued to April 4, 2008; Tallahassee, FL.
PDF:
Date: 03/21/2008
Proceedings: Agency`s court reporter confirmation letter filed with the Judge.
PDF:
Date: 03/17/2008
Proceedings: Notice of Service of Respondent`s Response to Petitioner`s Third Request for Production Dated February 21, 2008 to Eric J. Smith, as Commissioner of Education filed.
PDF:
Date: 03/17/2008
Proceedings: Notice of Service of Respondent`s Response to Petitioner`s Third Request for Production Dated February 21, 2008 to State Board of Education filed.
PDF:
Date: 03/10/2008
Proceedings: Order on Respondents` Third Request for Judicial Notice.
PDF:
Date: 03/10/2008
Proceedings: Order on Respondents` Motion for Protective Order.
PDF:
Date: 03/06/2008
Proceedings: Petitioner`s Reply to Respondents` Reply to Petitioner`s Response to Respondents` Third Request for Judicial Notice filed.
PDF:
Date: 03/05/2008
Proceedings: Petitioner`s Response in Opposition to Respondents` Motion for Protective Order filed.
PDF:
Date: 03/04/2008
Proceedings: Respondents` Reply to Petitioner`s Response to Respondents` Third Request for Judicial Notice filed.
PDF:
Date: 03/03/2008
Proceedings: Order on Respondent`s Motion for Clarification.
PDF:
Date: 02/29/2008
Proceedings: Petitioner`s Response to Respondents` Third Request for Judicial Notice filed.
PDF:
Date: 02/29/2008
Proceedings: Respondent`s Motion for Clarification of Order on Respondents` Renewed Motion for Telephone Depositions filed.
PDF:
Date: 02/27/2008
Proceedings: Respondents` Motion for Protective Order filed.
PDF:
Date: 02/26/2008
Proceedings: Respondent`s Third Request for Judicial Notice filed.
PDF:
Date: 02/21/2008
Proceedings: Notice of Service of Petitioner`s Third Request for Production of Documents to Respondent, Department of Education filed.
PDF:
Date: 02/21/2008
Proceedings: Notice of Service of Petitioner`s Third Request for Production of Documents to Respondent, State Board of Education filed.
PDF:
Date: 02/21/2008
Proceedings: Notice of Service of Petitioner`s Third Request for Production of Documents to Respondent, Eric J. Smith, as Commissioner of Education filed.
PDF:
Date: 02/19/2008
Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for March 24, 2008; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 02/18/2008
Proceedings: Order on Respondents` Renewed Motion for Telephone Depositions.
Date: 02/15/2008
Proceedings: CASE STATUS: Hearing Partially Held; continued to March 24, 2008; Tallahassee, FL.
PDF:
Date: 02/14/2008
Proceedings: Notice of Service of Petitioner`s Request for Admissions and Respondents` Responses filed.
PDF:
Date: 02/14/2008
Proceedings: Petitioner`s Response and Objection to Respondents` Renewed Motion for an Order to Provide Hearing Testimony by Telephone Deposition of Out-of-State Witnesses filed.
PDF:
Date: 02/14/2008
Proceedings: Petitioner`s Response in Opposition to Respondent`s Second Request for Judicial Notice filed.
PDF:
Date: 02/14/2008
Proceedings: Notice of Service of Respondent`s Response to Petitioner`s Request for Admissions to John L. Winn, as Commissioner of Education filed.
PDF:
Date: 02/14/2008
Proceedings: Notice of Service of Respondent`s Response to Petitioner`s Request for Admissions to State Board of Education filed.
PDF:
Date: 02/14/2008
Proceedings: Notice of Service of Respondent`s Response to Petitioner`s Request for Admissions to Department of Education filed.
PDF:
Date: 02/13/2008
Proceedings: Motion for Administrative Law Judge to take Official Recognition filed.
PDF:
Date: 02/13/2008
Proceedings: Supplement to Petitioner`s Unilateral Pre-Hearing Stipulation filed.
PDF:
Date: 02/13/2008
Proceedings: Respondents` Second Request for Judicial Notice filed.
PDF:
Date: 02/13/2008
Proceedings: Respondents` Renewed Motion for an Order to Provide Hearing Testimony by Telephone Deposition of Out-of-State Witnesses filed.
PDF:
Date: 02/13/2008
Proceedings: Agency`s court reporter confirmation letter filed with the Judge.
PDF:
Date: 02/12/2008
Proceedings: Respondents` Amended Hearing Exhibit List filed.
PDF:
Date: 02/12/2008
Proceedings: Order Taking Official Recognition.
PDF:
Date: 02/12/2008
Proceedings: Petitioner`s Pre-Hearing Stipulation filed.
PDF:
Date: 02/12/2008
Proceedings: Order on Respondents` Motion for a Telephone Depositions.
PDF:
Date: 02/11/2008
Proceedings: Respondent`s Pre-hearing Statement filed.
PDF:
Date: 02/11/2008
Proceedings: Respondents` Reply to Petitoner`s Response to Respondents` Motion for a Telephone Deposition filed.
PDF:
Date: 02/11/2008
Proceedings: Petitioner`s Response to Respondents` Motion for Telephone Depositions filed.
PDF:
Date: 02/11/2008
Proceedings: Petitioner`s Response to Respondents` Request for Judicial Notice filed.
PDF:
Date: 02/08/2008
Proceedings: Order Denying Motion to Dismiss.
PDF:
Date: 02/08/2008
Proceedings: Order on Petitioner`s Second Motion to Compel.
PDF:
Date: 02/08/2008
Proceedings: Order Denying Continuance of Final Hearing.
PDF:
Date: 02/08/2008
Proceedings: Order Granting Emergency Motion for Protective Order.
PDF:
Date: 02/07/2008
Proceedings: Respondents` Request for Judicial Notice filed.
PDF:
Date: 02/07/2008
Proceedings: Respondents` Motion for a Telephone Deposition filed.
PDF:
Date: 02/07/2008
Proceedings: Respondents` Department of Education and State Board of Education, Motion to Dismiss/Motion for Sanctions filed.
PDF:
Date: 02/07/2008
Proceedings: Petitioner`s Response to Respondents` Motion for Continuance/Motion for Severance filed.
PDF:
Date: 02/06/2008
Proceedings: Petitioner`s Second Motion to Compel Answers to Interrogatories filed.
PDF:
Date: 02/06/2008
Proceedings: Respondent`s, Motion for Continuance/Motion for Severance filed.
PDF:
Date: 02/06/2008
Proceedings: Petitioner`s Emergency Motion for Protective Order and Attorney`s Fees filed.
PDF:
Date: 02/05/2008
Proceedings: Notice of Service of Petitioner`s Request for Admissions (Department of Education) filed.
PDF:
Date: 02/05/2008
Proceedings: Notice of Service of Petitioner`s Request for Admissions (State Board of Education) filed.
PDF:
Date: 02/05/2008
Proceedings: Notice of Filing Request for Admission to Respondent, Department of Education (filed in Case No. 07-004783RU).
PDF:
Date: 02/05/2008
Proceedings: Notice of Service of Petitioner`s Request for Admissions (John L. Winn, as Commissioner of Education) filed.
PDF:
Date: 02/05/2008
Proceedings: Order Granting Leave to Amend.
PDF:
Date: 01/31/2008
Proceedings: Respondents` Objection to the Petitioner`s Motion to Amend filed.
PDF:
Date: 01/28/2008
Proceedings: notice of Taking Videotaped Deposition of Father Enrique Estrada filed.
PDF:
Date: 01/28/2008
Proceedings: Amended Petition for Determination of Invalidity of Adopted and Unadopted Rules filed.
PDF:
Date: 01/28/2008
Proceedings: Motion for Amended Petition for Formal Administrative Hearing filed.
PDF:
Date: 01/22/2008
Proceedings: Notice of Service of Petitioner`s Second Set of Interrogatories to Respondent, Department of Education filed.
PDF:
Date: 01/22/2008
Proceedings: Order on Motions to Compel (Petitioner`s) and to File Amended Pleading (Respondent`s).
Date: 01/22/2008
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 01/22/2008
Proceedings: Notice of Service of Respondent`s Response to Petitioner`s December 19, 2007 Request for Production Styled First Request for Production filed.
PDF:
Date: 01/22/2008
Proceedings: Notice of Service of Respondent`s Response to Petitioner`s December 28, 2007 Request for Production Styled Second Request for Production filed.
PDF:
Date: 01/22/2008
Proceedings: Notice of Service of Respondent`s Response to Petitioner`s December 19, 2007 Request for Production to State Board of Education filed.
PDF:
Date: 01/22/2008
Proceedings: Notice of Service of Petitioner`s Response to Respondent`s Second Request for Production of Documents filed.
PDF:
Date: 01/22/2008
Proceedings: Notice of Service of Petitioner`s Response to Respondent`s Subpoena of Dr. Maria Chelala filed.
PDF:
Date: 01/15/2008
Proceedings: Notice of Service of Petitioner`s First Set of Interrogatories to Respondent, Department of Education filed.
PDF:
Date: 01/15/2008
Proceedings: Respondent`s Motion in Response to Petitioner`s Motion to Compel Answers to Interrogatories and for Attorneys` Fees filed.
PDF:
Date: 01/11/2008
Proceedings: Petitioner`s Motion to Compel Answers to Interrogatories and for Attorneys` Fees filed.
PDF:
Date: 01/09/2008
Proceedings: Motion to File Third Amended Notice of Reasons filed.
PDF:
Date: 01/09/2008
Proceedings: Third Amended Notice of Reasons filed.
PDF:
Date: 12/28/2007
Proceedings: Notice of Service of Petitioner`s Second Request for Production to Respondent filed.
PDF:
Date: 12/26/2007
Proceedings: Notice of Service of Respondent`s Second Request for Production to Petitioner filed.
PDF:
Date: 12/24/2007
Proceedings: Order Granting Leave to Amend Notice of Reasons.
PDF:
Date: 12/24/2007
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for February 15, 2008; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 12/19/2007
Proceedings: Notice of Service of Petitioner`s First Request for Production to Respondent, John L. winn, as Commissioner of Education filed.
PDF:
Date: 12/19/2007
Proceedings: Notice of Service of Petitoner`s First Request for Production to Respondent, State Board of Education filed.
PDF:
Date: 12/19/2007
Proceedings: Notice of Service of petitioner`s Responses to Respondent`s First Request for Admissions filed.
PDF:
Date: 12/19/2007
Proceedings: Notice of Service of Petitioner`s First Set of Interrogatories to Respondent, John L. Winn, as Commissioner of Education filed.
PDF:
Date: 12/19/2007
Proceedings: Notice of Service of Petitioner`s Responses to Respondent`s First Request for Production filed.
PDF:
Date: 12/17/2007
Proceedings: Motion to Reschedule Final Hearing filed.
PDF:
Date: 12/06/2007
Proceedings: Second Amended Notice of Reasons filed.
PDF:
Date: 12/06/2007
Proceedings: Motion to File Second Amended Notice of Reasons filed.
PDF:
Date: 11/30/2007
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for February 6, 2008; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 11/30/2007
Proceedings: Order Granting Petitioner`s Motion to Add Party.
Date: 11/30/2007
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 11/30/2007
Proceedings: Order of Consolidation (DOAH Case Nos. 07-4628 and 07-4783RU).
PDF:
Date: 10/30/2007
Proceedings: Order Granting Continuance (parties to advise status by October 30, 2007).
Date: 10/30/2007
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 10/26/2007
Proceedings: Motion to Add Party filed.
PDF:
Date: 10/25/2007
Proceedings: Motion to Reschedule Hearing filed.
PDF:
Date: 10/23/2007
Proceedings: Order of Assignment.
PDF:
Date: 10/23/2007
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/23/2007
Proceedings: Notice of Hearing (hearing set for November 20, 2007; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 10/22/2007
Proceedings: Rule Challenge transmittal letter to Liz Cloud from Claudia Llado copying Scott Boyd and the Agency General Counsel.
PDF:
Date: 10/19/2007
Proceedings: Petition for Determination of Invalidity of Adopted and Unadopted Rules filed.

Case Information

Judge:
JOHN G. VAN LANINGHAM
Date Filed:
10/19/2007
Date Assignment:
11/30/2007
Last Docket Entry:
06/20/2008
Location:
Miami, Florida
District:
Southern
Agency:
Department of Education
Suffix:
RU
 

Counsels

Related DOAH Cases(s) (2):

Related Florida Statute(s) (15):

Related Florida Rule(s) (1):