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


View Dockets  
Summary: Respondent`s revised application form is a valid rule, and the outdated form, which was mistakenly made available to online applicants for a time after the adoption of the revised form, was not an unlawful unadopted rule.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147whether portions of an outdated online version of the same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 intended to deny his application

220for a teaching certificate purs uant to Sectio n 1012.56(10),

230Florida Statut es. As grounds for the denial, th e Commissioner

241asserted that Fi lippi lacks the go od moral characte r required to

254be eligible for a teac hing certificate and th at he had committed

267acts which would author ize the Educatio n Practices Co mmission to

279revoke a teaching ce rtificate. Fi lippi disputed the factual

289allegations and timely requested a revi ew by the Education

299Practices Comm ission. On Octobe r 9, 2007, the Ed ucation Practices

311Commission referred the matter, for a formal hearing, to the

321Division of Admini strative Hearings, where it was docketed as Case

332No. 07-4628.

334Meantime, on October 19, 2007 , Mr. Filippi fi led a petition

345with the Division of Administrative Hearings seeking to nullify

354certain provisions of the form s on which he had applied for

366licensure, either as co nstituting an invalid exercise of delegated

376legislative authority (which he al leged in relation to the form on

388which he first applied) or as part of an unad opted rule (which he

402claimed was the le gal status of th e form on whic h he made his

418second, third, and four th applications ). This rule challenge,

428brought against th e department and the Stat e Board of Education,

440was docketed as Ca se No. 07-4783RU. On November 30, 2007, at the

453parties' joint request, the undersigne d consolidated the two cases

463for all purposes , including fina l hearing.

470In the run-up to the final hearing, each side sought, and was

482granted, leave to amen d its pleading. Conseq uently, Case No. 07-

4944628 proceeded to hearing on the charges br ought in the

505Commissioner's Third Am ended Notice of Reasons. In Case No. 07-

5164 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

557for Determination of Invalidity of Adopted and Unadopted Rules.

566At the final hearin g of the consolidated cases, which was

577h 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;

613and 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

657addition to hi mself): Father Enriqu e Estrada (whose video

667deposition was received in lieu of a live appearance); Dr. Maria

678Chelala; and Kevin S. Trim. In addi tion, Petitioner 's Exhibits 1-

6908, 9(a)-(9d), 10(a)-10 (e), 11(a)-11(d), 12, 15, 17, 18, 19(k), 20,

70121(b)-21(h), 22(a), 23 -27, 31(b), 31(k), 31 (l), 44, 49, 58, 62,

713and 71 were admitt ed into evidence.

720Respondents presented the foll owing witnesses: Beverly W.

728Gregory, Ana Rasco, Heat her Deskins, Marian La mbeth, and Ronald G.

740Stowers. Resp ondents' Exhibits 5-9, 13, 15 18, 18(b), 19, and 23

752were received also, as were two depo sitions of Mr. Filippi, whose

764prior testimony wa s admitted in ad dition to his ex tensive hearing

777testimony.

778The undersigned to ok official recogn ition of numerous

787documents, as memorialized in the file.

793The transcript of the final hear ing, comprising five volumes

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

815the final tranche arriving on Ma y 14, 2008. By Order dated

827M 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-

8624783RU, 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

899a Proposed Final Order (in Case No. 07-4783RU) before the deadline

910of May 27, 2008; th eir papers were duly considered.

920Unless otherwise indicated, citations to the Florida

927Statutes refer to the 2007 Florida Statutes.

934FINDINGS OF FACT

9371. Petitioner Thomas Filippi ("Filippi") desires to be

947issued an Educator's Certificate authorizing him to teach in the

957public schools in the State of Florida. Accordingly, on or

967about March 1, 2005, Filippi filled out and signed an

977Application for Florida Educator's Certificate. Through this

984application, Filippi sought to become certified to teach

992Chemistry (Grades 6-12) in the Florida public schools. Filippi

1001mailed his application to the Department of Education

1009("Department"), where it was received on March 7, 2005.

10202. Question No. 22 of the application, on the subject of

1031professional sanctions, comprised four subparts, and asked the

1039following:

1040[1] Have you ever had any professional

1047license ( a driver's license is not a

1055professional license ) or professional

1060certificate, including a teaching

1064certificate, sanctioned by the issuing

1069agency in this or any state? Sanction is

1077defined to include: suspension; revocation;

1082discipline, such as issuance of a reprimand

1089or fine; or otherwise conditioned, such as

1096placed on any restriction or probation. [2]

1103Have you ever resigned, surrendered, or

1109otherwise relinquished a professional

1113license or certificate in this or any state?

1121[3] Is there any action pending in this or

1130any state against a professional license or

1137certificate that you hold or held? [4] Is

1145there any action pending in this or any

1153state against an application for a

1159professional license or certificate that you

1165have on file? (A determination of academic

1172ineligibility is not considered denial of a

1179license or certificate.)

1182(Bracketed numbers added.) Beneath these questions, for the

1190applicant whose answer would be "yes," were lines on which to

1201identify, with respect to any sanction(s) prompting the

1209affirmative response, the "State," "Year," "License or

1216Certificate," "Issuing Agency," and "Reason."

12213. Over the next seven months, on April 12, 2005; May 16,

12332005; and October 11, 2005, Filippi filed three additional

1242applications for licensure with the Department, each one seeking

1251certification in a different subject or subjects. Filippi's

1259second, third, and fourth applications (collectively, the

"1266Online Applications"), unlike his first, were completed and

1275submitted electronically via the internet.

12804. The Online Applications were identical to each other in

1290form, but differed somewhat from Filippi's first application.

1298This was because, in December 2004, the State Board of Education

1309("SBE") had adopted an updated version of the application for a

1322teaching certificate, which form was duly incorporated by

1330reference into, and made a part of, Florida Administrative Code

1340Rule 6A-4.0012. Due to an oversight, however, the Department

1349had not revised the online application to reflect the most

1359recent changes to this form——and would not do so until October

13702006, when it discovered the mistake. Consequently, Filippi's

1378first application was made on the then-current form; his Online

1388Applications, however, despite having been submitted later in

1396time, were made on an older version of the form.

14065. There was a question in the Online Applications dealing

1416with professional sanctions. The inquiry, however, contained

1423only three subparts rather than four, as had Question No. 22 of

1435the first application Filippi had submitted. The following

1443shows the differences between the Online Applications (which the

1452Department inadvertently had neglected to update), on the one

1461hand, and Filippi's first application (which used the then-

1470current form), on the other, by underlining the language that

1480was not in the Online Applications (but should have been ), and

1492striking through a word ("denial") that was in the Online

1504Applications (but should not have been):

1510[1] Have you ever had any professional

1517license ( a driver's license is not a

1525professional license ) or professional

1530certificate , including a teaching

1534certificate, sanctioned by the issuing

1539agency in this or any state? Sanction is

1547defined to include: denial ; suspension;

1552revocation; discipline, such as issuance of

1558a reprimand or fine; or otherwise

1564conditioned, such as placed on any

1570restriction or probation. [2] Have you ever

1577resigned, surrendered, or otherwise

1581relinquished a professional license or

1586certificate in this or any state? Is there

1594any action pending in this or any state

1602against a professional license or

1607certificate that you hold or held? [3] Is

1615there any action pending in this or any

1623state against an application for a

1629professional license or certificate that you

1635have on file? (A determination of academic

1642ineligibility is not considered denial of a

1649license or certificate.)

1652A YES or NO answer is required by Florida

1661Law. If YES, you must give the information

1669requested for each sanction.

1673(Bracketed numbers added.)

16766. The Commissioner of Education ("Commissioner"), as head

1686of the Department, decided that Filippi should not be permitted

1696to teach in Florida. Among the reasons for the Commissioner's

1706preliminary decision to deny Filippi's application for a

1714teaching certificate was the Commissioner's belief that Filippi

1722willfully had failed to disclose, in his applications for a

1732teaching certificate, certain material facts, including

1738information concerning the adverse actions that had been taken,

1747respectively, against his applications for licensure as a

1755teacher in the states of West Virginia and Pennsylvania.

17647. In this proceeding, Filippi alleges that the question

1773regarding professional sanctions in the first application he

1781submitted was an invalid existing rule. Filippi asserts that

1790the question was invalid for several reasons. First, he argues

1800that the SBE lacks rulemaking authority to ask an applicant for

1811a teaching certificate about any previous professional sanctions

1819he might have suffered, much less about any adverse actions that

1830might be pending elsewhere against some other application(s) for

1839licensure of the applicant. Second, he contends that the

1848professional-sanctions question empowers the Department to deny

1855an application merely because of an action pending elsewhere

1864against another application of the applicant, even though such

1873pending action (of itself) would not authorize the Education

1882Practices Commission ("EPC") to revoke a teaching certificate.

1892Third, Filippi insists that the question regarding professional

1900sanctions was impermissibly vague.

19048. With regard to the Online Applications, Filippi charges

1913that the SBE violated the rulemaking procedure prescribed in

1922Section 120.54, Florida Statutes, because (Filippi contends) the

1930question regarding professional sanctions in the Online

1937Applications constituted an agency statement meeting the legal

1945definition of the term "rule," which rule-by-definition (Filippi

1953claims) the SBE was required promptly to adopt formally as a

1964rule.

1965CONCLUSIONS OF LAW

19689. The Division of Administrative Hearings has personal

1976and subject matter jurisdiction in this proceeding pursuant to

1985Sections 120.56, 120.569, and 120.57(1), Florida Statutes, and

1993the parties have standing.

1997T HE EXISTING R ULE

200210. In a challenge to an existing rule, the "petitioner

2012has [the] burden of proving by a preponderance of the evidence

2023that the existing rule is an invalid exercise of delegated

2033legislative authority as to the objections raised." See §

2042120.56(3)(a), Fla. Stat.

204511. The Fundamental Rules of Decision 2

2052The starting point for determining whether an existing or

2061proposed rule is invalid is Section 120.52(8), Florida Statutes,

2070in which the legislature defined the term "invalid exercise of

2080delegated legislative authority." In this definition, the

2087legislature created a catalog of the salient defects which

2096distinguish rules that exceed an agency's delegated powers,

2104functions, and duties from those which do not. Pertinent to

2114this case are the following provisions:

2120A proposed or existing rule is an invalid

2128exercise of delegated legislative authority

2133if any one of the following applies:

2140* * *

2143(b) The agency has exceeded its grant of

2151rulemaking authority, citation to which is

2157required by s. 120.54(3)(a)1.;

2161(c) The rule enlarges, modifies, or

2167contravenes the specific provisions of law

2173implemented, citation to which is required

2179by s. 120.54(3)(a)1; [or]

2183(d) The rule is vague, fails to establish

2191adequate standards for agency decisions, or

2197vests unbridled discretion in the agency;

2203§ 120.52(8), Fla. Stat.

220712. Also included in Section 120.52(8) is a concluding

2216the legislature expressed a clear intent to curb agency

2225rulemaking authority:

2227A grant of rulemaking authority is necessary

2234but not sufficient to allow an agency to

2242adopt a rule; a specific law to be

2250implemented is also required. An agency may

2257adopt only rules that implement or interpret

2264the specific powers and duties granted by

2271the enabling statute. No agency shall have

2278authority to adopt a rule only because it is

2287reasonably related to the purpose of the

2294enabling legislation and is not arbitrary

2300and capricious or is within the agency's

2307class of powers and duties, nor shall an

2315agency have the authority to implement

2321statutory provisions setting forth general

2326legislative intent or policy. Statutory

2331language granting rulemaking authority or

2336generally describing the powers and

2341functions of an agency shall be construed to

2349extend no further than implementing or

2355interpreting the specific powers and duties

2361conferred by the same statute.

2366§ 120.52(8), Fla. Stat. The legislature enacted the very same

2376restrictions on rulemaking authority in Section 120.536(1),

2383Florida Statutes, apparently for emphasis.

238813. The meaning of the flush-left paragraph was the

2397subject of a pair of influential appellate decisions, starting

2406with Southwest Fla. Water Mgmt. Dist. v. Save the Manatee Club,

2417Inc. , 773 So. 2d 594 (Fla. 1st DCA 2000). There, the First

2429District Court of Appeal considered a challenge to rule

2438provisions which granted exemptions to certain permitting

2445requirements based upon prior governmental approval. By

2452statute, the agency had been delegated the power to establish

2462exemptions, but the power was qualified: only exemptions that

2471did not "allow significant adverse [environmental] impacts to

2479occur" could be granted. Id. at 600.

248614. Examining the then-recently revised flush-left

2492paragraph, the court found, as an initial matter, that the

2502language prohibiting agencies from adopting any rules except

2510those "that implement or interpret the specific powers and

2519duties granted by the enabling statute" is clear and

2528unambiguous. Id. at 599. The court observed that, "[i]n the

2538context of the entire sentence, it is clear that the authority

2549to adopt an administrative rule must be based on an explicit

2560power or duty identified in the enabling statute. Otherwise,

2569the rule is not a valid exercise of delegated legislative

2579authority." Id.

258115. In the opinion's most memorable paragraph, the court

2590encapsulated its position as follows:

2595[T]he authority for an administrative rule

2601is not a matter of degree. The question is

2610whether the statute contains a specific

2616grant of legislative authority for the rule,

2623not whether the grant of authority is

2630specific enough. Either the enabling

2635statute authorizes the rule at issue or it

2643does not. [T]his question is one that must

2651be determined on a case-by-case basis.

2657Id. (underlining added). In other words, according to the

2666court, the relevant inquiry is whether the specific law being

2676implemented (the enabling statute) evinces a legislative intent

2684to grant the agency the specific power or specific duty behind

2695the subject rule. In answering this question, the specificity

2704of the enabling statute's terms is not the primary

2713consideration. (Obviously, however, specificity is a factor to

2721consider, inasmuch as a relative lack of specificity tends to

2731obscure legislative intent, whereas relative precision in

2738legislative draftsmanship tends to reveal such intent.)

274516. Because, the court found, the exemptions at issue in

2755Manatee Club had been based "entirely on prior approval," and

2765because, moreover, the enabling statute did "not provide

2773specific authority for an exemption based on prior approval,"

2782the disputed rule provisions did "not implement or interpret any

2792specific power or duty granted in the applicable enabling

2801statute;" hence they were invalid. Id.

280717. The first district revisited the flush-left paragraph

2815of Section 120.52(8), Florida Statutes, in Bd. of Trustees of

2825Internal Improvement Trust Fund v. Day Cruise Ass'n , 794 So. 2d

2836696 (Fla. 1st DCA 2001), clarified , rehr'g denied , question

2845certified , 798 So. 2d 847 (Fla. 1st DCA 2001), rev. denied , 823

2857So. 2d 123 (Fla. 2002). The proposed rule under attack in that

2869case would have forbidden the use of sovereignty submerged lands

2879for anchoring cruise ships engaged in carrying passengers on so-

2889called "cruises to nowhere"——legal gambling excursions. Id. at

2898697. A divided court held the challenged rule to be invalid on

2910two interrelated grounds, namely, that it (a) exceeded the

2919agency's rulemaking authority and (b) enlarged the specific

2927provisions of law purportedly implemented.

293218. To make these determinations, the court defined the

2941specific power that the agency had exercised as being the

2951authority to "prohibit[] the use of sovereignty submerged lands

2960on account of lawful [gambling] activities on board ships at sea

2971which have no physical or environmental effect on sovereignty

2980submerged lands or adjacent waters." 794 So. 2d at 702. To

2991this the court added:

2995Although framed as a regulation of anchoring

3002or mooring, the proposed rule does not

3009regulate the mode or manner of mooring. It

3017does not govern the use of the bottom in any

3027way that protects its physical integrity or

3034fosters marine life. Instead it

3039deliberately and dramatically interferes

3043with certain kinds of commerce solely on

3050account of activities that occur many

3056leagues from any dock.

3060Id.

306119. Upon examining the statutory grant of rulemaking

3069authority applicable specifically to sovereignty submerged

3075lands, the court concluded that a provision in the grant which

3086prohibited regulations that "interfere with commerce" qualified

3093the agency's power "in ways that are incompatible with the

3103adoption of the proposed rule." Id. at 702. Thus the proposed

3114rule was outside the agency's rulemaking authority.

312120. The court next looked at the broad constitutional

3130grant of authority to the agency to acquire, administer, manage,

3140control, supervise, conserve, protect, and dispose of state

3148lands, including the sovereignty submerged lands. Id. at 703.

3157It found that "[n]one of the cited constitutional or statutory

3167provisions makes reference to, much less gives specific

3175instructions on the treatment of, the 'day cruise industry' or

3185contains any other specific directive that would provide the

3194support for the proposed rule that the [law] now requires." Id.

3205Driving this point home, the court continued that, despite the

3215breadth of the general language contained in the state

3224constitution,

3225[n]o provision listed as being implemented

3231in the proposed rule purports to authorize——

3238much less specifically to direct——the

3243[agency] to prohibit only certain vessels

3249from mooring on the basis of lawful

3256activities on board (possibly other) vessels

3262once they are on the high seas.

3269* * *

3272The provisions purportedly to be implemented

3278here are completely silent about day cruises

3285and about gambling and confer no authority

3292to bar day cruise vessels——or any other

3299vessels——from sovereignty submerged lands

3303based on lawful activities occurring outside

3309Florida’s territorial jurisdiction.

3312Id. at 703-04 (footnote omitted).

331721. The court concluded, "In the absence of a specific

3327power or duty" which would enable or require "the [agency] to

3338regulate cruises to nowhere or to regulate gambling or to

3348regulate on the basis of activities occurring aboard vessels

3357after they leave sovereignty submerged lands and adjacent

3365waters, the [agency's] rule exceeds the [agency's] rulemaking

3373authority and is an invalid exercise of delegated legislative

3382authority as defined in section 120.52(8)(c) ." Id. at 704

3392(footnote omitted; emphasis in original).

339722. Having studied the basic principles governing rule

3405challenges, it is time to look at the specific objections that

3416Filippi has raised.

341923. On the Sufficiency of the SBE's Rulemaking Authority

3428Filippi complains that the professional-sanctions question

3434is ultra vires , that it is not within the scope of the

3446Department's rulemaking power. Before addressing the merits of

3454Filippi's position, it will be helpful first to structure a

3464decisional path based on the applicable legal principles, which

3473were reviewed above. Considering Section 120.52(8), subparts

3480(b) and (c), Florida Statutes, in conjunction with Manatee Club

3490and Day Cruise , supra , it is possible to articulate an

3500analytical framework for resolving questions regarding

3506rulemaking authority.

350824. The threshold question is whether the agency has been

3518delegated the power to make rules. This issue will rarely be

3529disputed since most agencies have been granted general

3537rulemaking powers. See Day Cruise , 794 So. 2d at 702 (general

3548power to adopt rules "normally should be of little interest"

3558because almost all agencies have been given that). As both

3568Manatee Club and Day Cruise make clear, however, if the agency

3579has been empowered or directed specifically to make particular

3588rules or kinds of rules, it will be necessary, in determining

3599the specific powers or duties delegated to the agency, to pay

3610close attention to any pertinent restrictions or limitations on

3619the agency's rulemaking authority.

362325. After it has been determined that the agency has the

3634necessary grant of rulemaking authority, the next question is:

3643What is the specific power or specific duty that the agency has

3655implemented or interpreted through the challenged rule?

3662Logically, one needs to know what to look for before searching

3673the enabling statute for the requisite grant.

368026. The task of defining the specific power being

3689exercised is arguably the most crucial step in the process of

3700determining a rule's validity. How the exercised power is

3709defined will likely be outcome determinative in most cases . The

3720challenge is to define the power at the appropriate level of

3731generality, neither too narrowly nor too broadly, so that the

3741description of the exercised power accurately reflects the

3749rule's meaning and effect without transforming either. The

3757description of the power should be derived neutrally from the

3767rule's text, without considering (for this purpose) the

3775statutory grant of authority.

377927. As an illustration of the importance——and potential

3787difficulty——of defining the specific agency power purportedly

3794being implemented, the case of Frandsen v. Dep't of Envtl.

3804Prot. , 829 So. 2d 267 (Fla. 1st DCA 2002), rev. denied , 845 So.

38172d 889 (Fla. 2003), cert. denied , 540 U.S. 948, 124 S. Ct. 400,

3830157 L. Ed. 2d 279 (2003), is instructive. The rule at issue in

3843Frandsen regulated "free speech activities" (e.g. public

3850speaking, passing out pamphlets, performances, etc.) in public

3858parks. The agency had the authority to "'supervise, administer,

3867regulate, and control the operation of all public parks . . .'

3879and to 'preserve, manage, regulate, and protect all parks and

3889recreational areas held by the state . . . .'" Id. at 269

3902(quoting § 258.004, Fla. Stat. (1999)). The court found that

3912the rule "falls under [this] specific grant of authority and is

3923otherwise" valid. Id.

392628. The court, however, did not expressly define the

3935specific power being exercised through the rule or otherwise

3944explain how the rule implemented or interpreted such a power.

3954(Most of its opinion concerns the First Amendment challenge to

3964the rule's constitutionality.) Yet the proper definition of the

3973power, at the level of generality that the rule's text warrants,

3984is not self-evident. By "zooming in" on the rule and defining

3995the power at a low level of generality, as was done in Day

4008Cruise (which decision the Frandsen court cited with approval),

4017the power that the agency implemented could reasonably be

4026described as the authority to regulate speech or other

4035expressive conduct occurring in a public park. Because the

4044enabling statue is silent about free speech activities, just as

4054the grants of authority examined in Day Cruise were silent about

"4065cruises to nowhere," defining the power thusly might drive a

4075decision that the free speech rule is invalid.

408329. Or it might not. The conduct being regulated by the

4094rule in Frandsen is arguably distinguishable from the gambling

4103activities which the proposed rule in Day Cruise sought to

4113curtail. For the free speech rule, unlike the proposed gambling

4123ship regulation, only reaches activities taking place on the

4132lands within the agency's jurisdiction, whereas the proposed

4140rule directed at "cruises to nowhere" would have affected

4149conduct occurring outside of, and having no effect on, the lands

4160within the agency's jurisdiction. The difference between

4167regulating the properties and facilities comprising public

4174parks, on the one hand, and regulating free speech activities

4184in, on, or making use of such properties and facilities, on the

4196other, might fairly be considered a matter of degree. On that

4207basis, the decision in Frandsen can be squared with Day Cruise .

421930. The question whether the free speech rule at issue in

4230Frandsen implemented a specific power delegated to the agency is

4240a closer one than the court's opinion suggests. The court made

4251the answer seem obvious by not stating the agency power being

4262exercised. As shown above, however, had the power been stated

4272at a level of generality supported by the rule's text, the rule

4284could conceivably have been invalidated on the authority of

4293Manatee Club and Day Cruise without doing violence to the

4303principles underlying either of those decisions. The point is

4312not to criticize Frandsen , for the decision in that case is

4323consistent, too, with Manatee Club and Day Cruise ; it is to

4334demonstrate the importance, which cannot be gainsaid, of

4342identifying and accurately stating the power being exercised

4350through the rule under review.

435531. The next analytical step, once the specific power

4364being implemented has been defined, is to examine the enabling

4374statute to determine whether the specific power or duty, as

4384defined, is among the specific powers or duties delegated to the

4395agency by the legislature. This entails the "difficult task" of

4405identifying and defining "the kind of delegation that is

4414sufficient to support a rule." St. Johns River Water Mgmt.

4424Dist. v. Consolidated-Tomoka Land Co. , 717 So. 2d 72, 79 (Fla.

44351st DCA 1998)(italics in original).

444032. Unfortunately, less judicial attention has been paid

4448to defining the kind of enabling statute that is sufficient to

4459support a rule than to pointing out, with regard to enabling

4470statutes, that which is either insufficient or unnecessary.

4478Thus, for example, it is now axiomatic that a delegation is

4489insufficient to support a rule if it merely prescribes a class

4500of powers and duties. "An administrative rule must fall within

4510the class of powers and duties delegated to the agency, but that

4522alone will not make the rule a valid exercise of legislative

4533power." Manatee Club , 773 So. 2d 599.

454033. A similarly well settled proposition holds that it is

4550unnecessary for an enabling statute to be detailed. The court

4560reached this conclusion in Manatee Club , just as it had in

4571Consolidated-Tomoka in a "part of [that] decision [which]

4579appears to have survived" subsequent legislation. See Manatee

4587Club , 773 So. 2d at 599. The surviving piece of Consolidated-

4598Tomoka provides in pertinent part as follows:

4605In our view, [the since-amended, 1996

4611version of the flush-left paragraph, which

4617is no longer the law,] restricts rulemaking

4625authority to subjects that are directly

4631within the class of powers and duties

4638identified in the enabling statute. It was

4645not designed to require a minimum level of

4653detail in the statutory language used to

4660describe the powers and duties.

4665Consolidated-Tomoka , 717 So. 2d at 79 (emphasis added).

467334. Fortunately, the available guidance is not all

4681negative in nature. In Manatee Club , the court taught, in an

4692affirmative way, that the enabling statute "must contain a

4701specific grant of legislative authority for the rule . . . ."

4713773 So. 2d at 599 (emphasis added). Or, as the court put it

4726another way, "it is clear that the authority to adopt an

4737administrative rule must be based on an explicit power or duty

4748identified in the enabling statue." Id. (emphasis added).

4756Taking these positive statements together, which tell what is

4765required for a delegation of legislative authority to be

4774sufficient to support a rule, it is concluded that the flush-

4785left paragraph, in its present form, restricts rulemaking

4793authority to:

4795(a) specific (or explicit) powers and

4801duties

4802(b) whose distinguishing characteristics

4806(i.e. the features that make the power

4813specific and not merely categorical )

4819(c) are established ("identified"), that

4826is, actually present ("contained"), in the

4834enabling statute.

483635. In this third stage of the analysis, then, having at

4847the second step defined the specific power being exercised (and,

4857in the process, revealed its distinguishing characteristics),

4864the question is whether the enabling statute either explicitly

4873or implicitly (if ordinary rules of statutory construction

4881permit such an inference) includes within its provisions the

4890characteristics that give the specific power its identity (or at

4900least enough of such characteristics to support the conclusion

4909that the delegated power and the exercised power are identical ),

4920thereby evincing an intent to confer the specific power on the

4931agency.

493236. The last question, assuming the enabling statute

4940delegates the specific power or duty being exercised, is whether

4950the rule at issue actually implements or interprets such power

4960or duty, for a rule, to be valid, must implement or interpret

4972the specific powers granted. If, however, the specific power or

4982duty was properly defined earlier in the analysis, and if,

4992further, the specific power or duty, as defined, was properly

5002located in the enabling statute, then the conclusion here will

5012probably be foregone.

501537. The foregoing legal frame of reference can now be used

5026to determine whether the question regarding professional

5033sanctions is within the Department's rulemaking authority.

504038. The first question is whether the SBE has been granted

5051general rulemaking powers. The answer is yes . See , e.g. , §

50621001.02(1), Fla. Stat. (The SBE "has authority to adopt rules

5072pursuant to ss. 120.536(1) and 120.54 to implement the

5081provisions of law conferring duties upon it . . . ."); §

50941001.02(2)(n), Fla. Stat. (The SBE has the duty to "adopt

5104cohesive rules pursuant to ss. 120.536(1) and 120.54, within

5113statutory authority."); and § 1001.03(3), Fla. Stat. ("The State

5124Board of Education shall . . . establish competencies, including

5134. . . certification requirements for all school-based personnel,

5143and prescribe rules in accordance with which the professional,

5152temporary, and part-time certificates shall be issued by the

5161Department of Education to applicants who meet the standards

5170prescribed by such rules[.]"). Clearly the SBE possesses the

5180necessary general grant of rulemaking authority.

518639. Consequently, it is necessary to take the second

5195analytical step, which entails defining the specific power or

5204duty being exercised through the professional-sanctions

5210question. Taking full account of the question's meaning and

5219effect, it is determined that the specific power which the SBE

5230has exercised is the power to ask each applicant for a teaching

5242certificate to disclose the existence of, and some basic facts

5252concerning: (a) any past disciplinary measures taken against

5260the applicant in his capacity as a professional licensee; (b)

5270any disciplinary proceedings currently pending against the

5277applicant in his capacity as a professional licensee; and (c)

5287any measures currently being taken in response to an application

5297of the applicant for a professional license, as a result of

5308which such application is in danger of being disapproved.

531740. The next question, then, is whether this particular

5326power is among the specific powers and duties that the

5336legislature has granted to the SBE. In this regard, Section

53461012.55(1), Florida Statutes, imposes on the SBE certain duties,

5355providing in pertinent part as follows:

5361The State Board of Education shall . . .

5370establish competencies, including . . .

5376certification requirements for all school-

5381based personnel, and adopt rules in

5387accordance with which the professional,

5392temporary, and part-time certificates shall

5397be issued by the Department of Education to

5405applicants who meet the standards prescribed

5411by such rules for their class of service.

541941. In exercising its specific statutory duty to establish

5428certification requirements, the SBE must follow Section 1012.56,

5436Florida Statutes, which prescribes the minimum requirements for

5444obtaining a teaching certificate. This statute provides, in

5452relevant part, as follows:

5456(2) ELIGIBILITY CRITERIA.--To be eligible

5461to seek certification, a person must:

5467(a) Be at least 18 years of age.

5475(b) File an affidavit that the applicant

5482subscribes to and will uphold the principles

5489incorporated in the Constitution of the

5495United States and the Constitution of the

5502State of Florida and that the information

5509provided in the application is true,

5515accurate, and complete. The affidavit shall

5521be by original signature or by electronic

5528authentication. The affidavit shall include

5533substantially the following warning:

5537WARNING: Giving false information in order

5543to obtain or renew a Florida educator's

5550certificate is a criminal offense under

5556Florida law. Anyone giving false

5561information on this affidavit is subject to

5568criminal prosecution as well as disciplinary

5574action by the Education Practices

5579Commission.

5580(c) Document receipt of a bachelor's or

5587higher degree from an accredited institution

5593of higher learning, or a nonaccredited

5599institution of higher learning that the

5605Department of Education has identified as

5611having a quality program resulting in a

5618bachelor's degree, or higher. Each

5623applicant seeking initial certification must

5628have attained at least a 2.5 overall grade

5636point average on a 4.0 scale in the

5644applicant's major field of study. The

5650applicant may document the required

5655education by submitting official transcripts

5660from institutions of higher education or by

5667authorizing the direct submission of such

5673official transcripts through established

5677electronic network systems. The bachelor's

5682or higher degree may not be required in

5690areas approved in rule by the State Board of

5699Education as nondegreed areas.

5703(d) Submit to background screening in

5709accordance with subsection (9). If the

5715background screening indicates a criminal

5720history or if the applicant acknowledges a

5727criminal history, the applicant's records

5732shall be referred to the investigative

5738section in the Department of Education for

5745review and determination of eligibility for

5751certification. If the applicant fails to

5757provide the necessary documentation

5761requested by the department within 90 days

5768after the date of the receipt of the

5776certified mail request, the statement of

5782eligibility and pending application shall

5787become invalid.

5789(e) Be of good moral character.

5795(f) Be competent and capable of performing

5802the duties, functions, and responsibilities

5807of an educator.

5810(g) Demonstrate mastery of general

5815knowledge, pursuant to subsection (3).

5820(h) Demonstrate mastery of subject area

5826knowledge, pursuant to subsection (4).

5831(i) Demonstrate mastery of professional

5836preparation and education competence,

5840pursuant to subsection (5).

5844§ 1012.56(2), Fla. Stat.

584842. In addition to setting forth eligibility criteria,

5856Section 1012.56 specifies grounds for denying an application, as

5865follows:

5866The Department of Education may deny an

5873applicant a certificate if the department

5879possesses evidence satisfactory to it that

5885the applicant has committed an act or acts,

5893or that a situation exists, for which the

5901Education Practices Commission would be

5906authorized to revoke a teaching certificate.

5912§ 1012.56(11)(a), Fla. Stat.

591643. The acts or situations for which the EPC is authorized

5927to revoke a teaching certificate are enumerated in Section

59361012.795(1), Florida Statutes, which authorizes the EPC to take

5945disciplinary action (including revocation of a guilty teacher's

5953certificate) against a certified teacher who:

5959(a) Obtained or attempted to obtain an

5966educator certificate by fraudulent means.

5971(b) Has proved to be incompetent to teach

5979or to perform duties as an employee of the

5988public school system or to teach in or to

5997operate a private school.

6001(c) Has been guilty of gross immorality or

6009an act involving moral turpitude.

6014(d) Has had an educator certificate

6020sanctioned by revocation, suspension, or

6025surrender in another state.

6029(e) Has been convicted of a misdemeanor,

6036felony, or any other criminal charge, other

6043than a minor traffic violation.

6048(f) Upon investigation, has been found

6054guilty of personal conduct which seriously

6060reduces that person's effectiveness as an

6066employee of the district school board.

6072(g) Has breached a contract, as provided in

6080s. 1012.33(2).

6082(h) Has been the subject of a court order

6091directing the Education Practices Commission

6096to suspend the certificate as a result of a

6105delinquent child support obligation.

6109(i) Has violated the Principles of

6115Professional Conduct for the Education

6120Profession prescribed by State Board of

6126Education rules.

6128(j) Has otherwise violated the provisions

6134of law, the penalty for which is the

6142revocation of the educator certificate.

6147(k) Has violated any order of the Education

6155Practices Commission.

6157(l) Has been the subject of a court order

6166or plea agreement in any jurisdiction which

6173requires the certificateholder to surrender

6178or otherwise relinquish his or her

6184educator's certificate. A surrender or

6189relinquishment shall be for permanent

6194revocation of the certificate. A person may

6201not surrender or otherwise relinquish his or

6208her certificate prior to a finding of

6215probable cause by the commissioner as

6221provided in s. 1012.796.

622544. The SBE's specific authority with regard to the

6234establishment of certification requirements must be determined

6241based on a reading together of Sections 1012.55, 1012.56, and

62511012.795, Florida Statutes, which are, on the common subject of

6261such requirements, in pari materia ; 3 these enabling statutes,

6270taken as a whole, either authorize the professional-sanctions

6278question, or they do not.

628345. There can be no reasonable disagreement with the

6292proposition that, in exercising its specific duty to establish

6301certification requirements, the SBE is authorized (indeed

6308required) to create an application designed to identify

6316applicants who meet such requirements——and to weed out those who

6326do not. See § 1012.56(1), Fla. Stat. (requiring each person

6336seeking a teaching certificate to submit a completed application

6345therefor). As a matter of logic, therefore, it follows that the

6356SBE is specifically empowered to ask applicants, in the

6365application, not only about any of the statutory eligibility

6374criteria, but also about acts or situations which, if known to

6385the Department, would afford a basis for denial of an

6395application.

639646. Some of the eligibility (and disqualifying) criteria

6404lend themselves to straightforward questions. For example, an

6412application may be denied if the applicant has had a teaching

6423certificate "sanctioned by revocation, suspension, or surrender

6430Stat. To the extent the professional-sanctions question merely

6438asks the applicant to disclose a direct basis for denial , such

6449as whether he has had a teaching certificate sanctioned by

6459revocation, suspension, or surrender in another state, the

6467question is clearly within the SBE's specific powers and duties.

647747. Other eligibility (and disqualifying) criteria are

6484less amenable to direct questions. Asking an applicant directly

6493whether he is of good moral character, for example, or competent

6504and capable of performing the duties, functions and

6512responsibilities of a teacher, is unlikely to uncover any useful

6522information; after all, few applicants (one hopes) believe they

6531themselves are immoral or incompetent, and very few (if any) of

6542those who do would honestly admit to being either. Obviously,

6552in reference to matters, such as character and competence, which

6562require the Department to make judgment calls about an

6571applicant, what must be learned through the application are

6580basic objective facts from which ultimate determinations (e.g.

6588the applicant appears to be of good moral character) can be

6599made.

660048. In complaining that the SBE has exercised authority it

6610doesn't have in asking about professional sanctions, Filippi has

6619completely overlooked that some matters simply must be inquired

6628about indirectly, if useful information is to be obtained. The

6638undersigned concludes that just as the SBE is specifically

6647empowered to ask directly about any matter that is statutorily

6657required for certification, or that would be a direct basis for

6668denial of an application, so too is the SBE authorized

6678specifically to inquire indirectly about all such matters, at

6687least to the extent such indirect questions are calculated to

6697discover markers for the presence of eligibility (or

6705disqualifying) criteria.

670749. As it happens, this case does not present any close or

6719difficult issues, for the professional-sanctions question is

6726safely within the limits of the SBE's authority to inquire. 4

6737This is because, insofar as the matters inquired about in the

6748professional-sanctions question are not direct grounds for

6755denial, they are clearly markers for such grounds. Past

6764discipline or a pending disciplinary action, for example,

6772reveals at a minimum that the applicant has gotten into

6782sufficient trouble to draw the attention of a regulatory agency,

6792which is the sort of thing that marks a person as possibly

6804having c haracterological defects that ought to be investigated.

6813And apart from that, the underlying acts or situations that led

6824to the prior discipline or pending disciplinary proceeding,

6832about which the Department might not learn without posing the

6842professional-sanctions question (or something like it), could be

6850grounds themselves for denial of the application.

685750. The same can be said about the specific query

6867involving actions pending against an application. The very fact

6876that another licensing authority has singled out an applicant's

6885application for the purpose of taking some adverse action

6894signals that something about the applicant's background or

6902credentials is possibly amiss. Whatever that something is ought

6911to be investigated, because persons whose other applications

6919have been marked for disapproval might have problems that would

6929counsel against the issuance of a Florida teaching certificate

6938as well.

694051. In summary, the undersigned concludes, based on a

6949reading together of Sections 1012.55, 1012.56, and 1012.795,

6957Florida Statutes, that the legislature intended to empower the

6966SBE with the specific authority to ask teaching-certificate

6974applicants to disclose any past professional sanctions, pending

6982disciplinary proceedings, and any actions pending in response to

6991an application for professional licensure which reflect a

6999negative view of such application.

700452. It is concluded, finally, that the professional-

7012sanctions question does implement a specific power or duty

7021delegated by the enabling statutes. Accordingly, because the

7029question meets the criteria specified in the flush-left

7037paragraph, it comes within the SBE's rulemaking authority.

7045On Whether the Professional-Sanctions

7049Question Enlarges or Modifies the Law Implemented

705653. Filippi argues that the professional-sanctions

7062question provides the Department with authority to deny an

7071application if the applicant either (a) has had a professional

7081license "merely reprimanded or conditioned" in another state, or

7090(b) is currently a party to an action against an application for

7102a professional license. This alleged authority, according to

7110Filippi, enlarges or modifies Section 1012.795(1)(d), Florida

7117Statutes, which authorizes the EPC to revoke a teaching

7126certificate if the holder has surrendered a similar certificate

7135in another state, or had one revoked or suspended——but not for

7146any lesser or different sanctions, and not on the basis of

7157actions taken against applications (as opposed to certificates

7165or licenses).

716754. Contrary to Filippi's argument, however, the

7174professional-sanctions question does not confer any authority on

7182the Department, either expressly or by necessary implication, to

7191deny an application on the basis of matters not specified in the

7203statutes. The question, rather, merely asks for information

7211that, while not necessarily disqualifying per se, usually would

7220suggest the presence of a possibly disqualifying problem.

722855. To illustrate, the fact that an action is pending in

7239another state against the applicant's application in that state

7248for a professional license would not , of itself, be a basis for

7260the Department to deny his Florida application, and nothing in

7270the professional-sanctions question provides otherwise. On the

7277other hand, the reason for that action might be. (Suppose, for

7288example, the other state's licensing authority believes the

7296applicant is not competent to teach. If the Department agrees

7306with that assessment, after independently reviewing the

7313situation, then it should deny the application, not because of

7323the other state's action, but because the applicant is

7332incompetent.) In short, the Department is trying to discover

7341facts which, having previously come to the attention of another

7351licensing agency, have caused concern about the applicant.

7359Facts that have caused such concern elsewhere obviously are (and

7369should be) of interest to the Department.

737656. It is concluded that the professional-sanctions

7383question does not enlarge or modify any of the provisions of law

7395implemented.

7396On Whether the Professional-Sanctions Question Is Vague

740357. Filippi advances a number of arguments in support of

7413his contention that the professional-sanctions question——and

7419particularly the subpart thereof which asks about "any action

7428pending . . . against an application" (the "Troubled Application

7438Question")——was vague, ambiguous, and confusing. It is not

7447necessary here to examine in detail Filippi's contentions

7455regarding the alleged opacity of the Troubled Application

7463Question or the professional-sanctions question as a whole.

7471Suffice to say that while the professional-sanctions question is

7480not an example of skillful draftsmanship, neither is it

7489incomprehensible. Filippi has a point, in other words, but he

7499tries to make entirely too much of it.

750758. Upon being read for the first time, for example, the

7518Troubled Application Question could cause a reasonable applicant

7526who has applied previously for a certificate or has such an

7537application pending somewhere to pause and think about what is

7547being asked. It is conceivable too that, as Filippi argues, an

7558applicant might ponder whether an action pending against an

7567application——or even the denial thereof——constitutes a

"7573sanction." (Although it is conceivable , the undersigned

7580believes that very few ordinary applicants actually would draw

7589the technical legal distinction between a disciplinary sanction

7597against a license, on the one hand, and the regulatory denial of

7609an application, on the other. The undersigned is fairly

7618confident that the term "sanction," as used in everyday

7627discourse, is broad enough to include the denial of an

7637application for professional licensure within its range of

7645customary meanings.) Or, as Filippi also insists, an applicant

7654might possibly stumble over the "compound" nature of the

7663professional-sanctions question, with its several subparts.

766959. It is difficult to imagine, however, that a reasonable

7679applicant ultimately would be stymied by the professional-

7687sanctions question, after giving it some careful attention and

7696thought. At bottom, given a fair reading, the Troubled

7705Application Question requires an affirmative answer if any

7713application of the applicant, owing to a potentially fatal flaw,

7723has been culled from the batch of applications moving through

7733the pipeline towards approval and identified as problematic.

7741The key words are: (a) "action pending ," which reasonably

7750denotes both (i) a continuing, as yet unfinished proceeding

7759(e.g. an administrative appeal), and (ii) an impending act (e.g.

7769a decision expected to come soon); and (b) "action . . . against

7782an application," which reasonably means that the posture of the

7792ongoing proceeding or imminent decision is unfavorable (or in

7801opposition) to the application. (Emphasis added.) Any

7808application which is the object of a "pending" action that is

7819also "against" the application is, by any reasonable measure, an

7829application in trouble. A reasonable applicant should be able

7838to figure out, without too much difficulty, that such an

7848application must be disclosed.

785260. The test for determining the vagueness of an

7861administrative rule is whether persons of common understanding

7869and intelligence must guess at its meaning. See State, Dep't of

7880Health & Rehabilitative Services v. Health Care & Retirement

7889Corp. , 593 So. 2d 539, 541 (Fla. 1st DCA 1992). The

7900professional-sanctions question, though it might be clumsily

7907worded, is yet not so obscure that ordinary people must guess at

7919its meaning. The question is not, therefore, invalid for

7928vagueness pursuant to Section 120.52(8)(d), Florida Statutes.

7935T HE ALLEGED U NADOPTED R ULE

794261. Filippi alleges that the form he used for his Online

7953Applications was an unadopted rule because, in December 2004,

7962the SBE had amended Florida Administrative Code Rule 6A-

79714.0012(1)(a) so as to incorporate by reference an updated

7980version of the application form, which updated form the

7989Department mistakenly failed to post online for nearly two

7998years. Pursuant to Section 120.56(4), Florida Statutes, Filippi

8006contends that the Department's failure to update the online

8015version of the teaching-certificate application violated Section

8022120.54(1)(a), Florida Statute, which provides that each agency

8030statement defined as a "rule" must be formally adopted as soon

8041as feasible and practicable.

804562. The threshold question that Filippi's challenge raises

8053is whether the outdated online form was a "rule" as that term is

8066statutorily defined. The definition is found in Section

8074120.52(15), Florida Statutes, which provides in relevant part as

8083follows:

"8084Rule" means each agency statement of

8090general applicability that implements,

8094interprets, or prescribes law or policy or

8101describes the procedure or practice

8106requirements of an agency and includes any

8113form which imposes any requirement or

8119solicits any information not specifically

8124required by statute or by an existing rule.

8132The term also includes the amendment or

8139repeal of a rule.

8143(Emphasis added.)

814563. As a form which solicits information not specifically

8154required by statute, the outdated application certainly could be

8163a rule-by-definition. But under the somewhat unusual facts of

8172this case, such a conclusion would be unwarranted, as will be

8183explained.

818464. Suppose that an agency official in good faith informs

8194an applicant that, to be approved for licensure, he needs to do

"8206X." Suppose, however, that the official is mistaken: the

8215agency has an applicable rule which does not , in fact, require

8226X, and, moreover, it is undisputed that the agency never

8236intended to require X. It is clear to the undersigned that the

8248statement, "You must do X to obtain a license," while appearing

8259to be a rule-by-definition, is not a "rule" because it does not

8271declare law or agency policy. An erroneous statement should not

8281be elevated to the status of a rule unless the agency has

8293enforced the statement or otherwise knowingly allowed it to

8302operate as a rule, in which latter event the agency conduct, by

8314making the statement effective , would belie any subsequent

8322characterization of the statement as a "mistake."

832965. Expanding the foregoing hypothetical will illustrate

8336the point. Suppose the same facts as above, except that, when

8347the time comes to make a decision, the agency announces its

8358intent to deny the application because the applicant did not

8368meet the requirement X. If the applicant requests a substantial

8378interests hearing and the agency thereafter insists that the

8387requirement to do X is a condition of licensure, then the agency

8399has taken ownership of the statement, at which point the

8409statement might well be found to constitute a rule-by-

8418definition, even if it were born of a mistake.

842766. Suppose however that, in attempting to meet the

8436requirement X, the applicant intentionally lied to the agency

8445and represented that he had done X when in fact he had not. If

8459the agency discovers the deception and announces its intent to

8469deny the application because the applicant attempted to obtain a

8479license by fraudulent means, is its position tantamount to

8488adopting, as agency policy, the original, mistaken statement,

"8496You must do X"? Or could the agency, consistent with its

8507intended denial, nevertheless maintain that X was not actually a

8517requirement and hence the statement "do X" not a rule-by-

8527definition?

852867. The undersigned concludes that there is no logical

8537inconsistency between (a) disowning the statement, "You must do

8546X," as an erroneous statement that does not reflect agency

8556policy, and (b) denying licensure to an applicant who, when

8566required (mistakenly) to do X, fraudulently reports that he has

8576done X when he has not. Position (a) would be logically

8587inconsistent, however, with (c) denying licensure to an

8595applicant for failing to do X. This is because position (c)

8606amounts to enforcement of the statement requiring X, which is

8616inconsistent with disowning the statement. In contrast,

8623position (b) does not amount to enforcing the statement

8632requiring X; rather, position (b) rests on the enforcement of a

8643separate and independent duty of the applicant: to tell the

8653truth (or, stated negatively, not to use fraudulent means to

8663obtain a license).

866668. Here, the outdated online form remained available for

8675use by applicants such as Filippi because of a mistake. Neither

8686the SBE nor the Department intended that applicants should use

8696the old form. As soon as the mistake was discovered, the online

8708form was updated to conform to the then-current form, which had

8719been duly adopted as a formal rule.

872669. The undersigned concludes that the outdated form, like

8735the hypothetical statement, "You must do X," in the first

8745example above, was merely a mistake——nothing more. The old form

8755did not declare law or agency policy. Indeed, the SBE would not

8767have adopted the old form in accordance with the rulemaking

8777mandate of Section 120.54(1)(a), Florida Statutes, had it known

8786the old form remained (erroneously) in use, because it did not

8797want the old form to be used any longer. The notion that the

8810SBE should have adopted its outdated form as a rule (which

8821underlies Filippi's challenge) is nonsensical.

882670. There is, moreover, no evidence in the record

8835suggesting that either the SBE or the Department ever

8844deliberately took action to enforce or otherwise make operative

8853the challenged provisions (i.e. the professional-sanctions

8859question) of the outdated form, to the extent such provisions

8869differed from the corresponding provisions of the current,

8877adopted form. 5 (It is not clear that such enforcement could have

8889occurred, in any event, because the substantive difference

8897between the old professional-sanctions question and the new one

8906was the addition (in the new application) of a subpart that

8917asked about actions pending against a license. In other words,

8927the new application was more inquisitive than the old one, and

8938hence the Department's failure consistently to use the new form

8948was detrimental only to the Department.)

895471. The upshot is that the outdated form was not a "rule."

8966For that reason, the Department's failure to update the online

8976application form did not violate Section 120.54(1)(a), Florida

8984Statutes.

898572. That said, however, even if an erroneous statement,

8994which neither declared law or policy nor was given effect as

9005such, can be deemed a rule-by-definition, the undersigned still

9014would conclude that Section 120.54(1)(a) was not violated in

9023this instance, for the reasons which follow.

903073. As a starting point, the undersigned believes it is

9040self-evident, and therefore he concludes, that the outdated form

9049could be an "unadopted" rule only to the extent that its terms

9061and/or meaning differed from the terms and/or meaning of the

9071updated, adopted form. For example, if the updated form

9080incorporated, say, 90 percent of the form it was intended to

9091replace, then only ten percent (or so) of the outdated form

9102could possibly be considered an "unadopted" rule.

910974. Here, Filippi challenges only the professional-

9116sanctions question as an unadopted rule. The version of this

9126question that appears in the outdated form (the alleged

"9135unadopted" rule) is substantially similar to the version that

9144appears in the updated form. The one substantive difference

9153between the two, as mentioned above, is that the updated

9163professional-sanctions question contains an additional subpart,

9169making it more inquisitive. (The few other differences merely

9178fine-tune the language in ways that do not materially change the

9189substance of the professional-sanctions question.) Put another

9196way, the outdated form is different from the revised version,

9206not for what it says, but largely because of what it does not

9219say.

922075. Consequently, applicants who applied online between

9227December 2004 and October 2006, unlike applicants who submitted

9236applications on paper during this period, were not asked about

9246actions pending against other licenses they might have held.

9255The Department's failure to ask some applicants this question,

9264which was in essence a failure to follow Rule 6A-4.0012(1)(a),

9274might have been unfair (to applicants who applied on paper) and

9285might have afforded an aggrieved applicant (presumably one who

9294had applied on paper) a basis for complaint. But under the

9305circumstances of this case, the undersigned concludes that the

9314Department's not asking online applicants the question about

9322pending disciplinary proceedings——this agency silence ——cannot be

9329viewed as an agency statement .

933576. Because it was not an "agency statement," the

9344Department's failure to ask online applicants about actions

9352pending against other licenses they might have held was not a

"9363rule" under Section 120.52(15), Florida Statutes.

9369ATTORNEY ' S FEES AND COSTS

937577. Pursuant to Section 120.595(3), Florida Statutes, the

9383undersigned is required to award reasonable costs and reasonable

9392attorney's fees to the agency for successfully defending a

9401challenge to an existing rule if he determines that the opposing

9412party brought the rule challenge for an "improper purpose." See

9422§ 120.595(3), Fla. Stat. In this context, the term "improper

9432purpose" means "participation in a proceeding . . . primarily to

9443harass or to cause unnecessary delay or for frivolous purpose or

9454to needlessly increase the cost of litigation, licensing, or

9463securing the approval of an activity." § 120.595(1)(e)1., Fla.

9472Stat. (emphasis added).

947578. The undersigned finds that Filippi brought the instant

9484action primarily for the purpose of increasing his chances of

9494obtaining a teaching certificate. Therefore, he did not

9502participate herein for an "improper purpose" as defined by

9511Section 120.595(1)(e), Florida Statutes. Accordingly,

9516attorney's fees and costs shall not be awarded to the Department

9527or the SBE.

9530ORDER

9531Based on the foregoing Findings of Fact and Conclusions of

9541Law, it is ORDERED that the revised application, which was duly

9552adopted as a rule, is not an invalid exercise of delegated

9563legislative authority; and that the outdated application, which

9571was mistakenly made available to online applicants for a time

9581after the adoption of the revised form, was not an unlawful

9592unadopted rule.

9594DONE AND ORDERED this 20th day of June, 2008, in

9604Tallahassee, Leon County, Florida.

9608___________________________________

9609JOHN G. VAN LANINGHAM

9613Administrative Law Judge

9616Division of Administrative Hearings

9620The DeSoto Building

96231230 Apalachee Parkway

9626Tallahassee, Florida 32399-3060

9629(850) 488-9675 SUNCOM 278-9675

9633Fax Filing (850) 921-6847

9637www.doah.state.fl.us

9638Filed with the Clerk of the

9644Division of Administrative Hearings

9648this 20th day of June, 2008.

9654ENDNOTES

96551 / While this proceeding was pe nding, Eric J. Smith, Ph.D.,

9667succeeded Mr. Winn as Florida's Co mmissioner of Education.

96762 / An expanded discussion of this topic appears in Home Delivery

9688Incontinent Supplies Co., Inc. v. Agency For Health Care

9697Administration , No. 07-4167RX, 2008 Fla. Div. Adm. Hear. LEXIS

9706205, *11-*26 (Apr. 18, 2008).

97113 / See , e.g. , Mehl v. State , 632 So. 2d 593, 595 (Fla.

97241993)(separate statutory provisions that are in pari materia

9732should be construed to express a unified legislative purpose);

9741Lincoln v. Florida Parole Commission , 643 So. 2d 668, 671 (Fla.

97521st DCA 1994)(statutes on same subject and having same general

9762purpose should be construed in pari materia ).

97704 / To be sure, the undersigned can imagine questions that would

9782Suppose, for example, there was a question on the application

9792that asked: Do you look at pornography on the internet? If

9803yes, identify the sites that you visit, the frequency of your

9814visits, and the approximate number of hours per week you spend

9825engaged in this activity. Whether such a question would be

9835permissible the undersigned obviously need not decide in this

9844case, but the pornography inquiry is problematic in ways that

9854the professional-sanctions question is not. While an

9861applicant's consumption of internet pornography might be a

9869marker for the presence of eligibility or disqualifying criteria

9878( e.g. the ones relating to morality), inquiring into such a

9889matter would implicate privacy concerns that the professional-

9897sanctions question does not raise. The pornography question is

9906therefore a different kind of question, and deciding whether it

9916falls within the SBE's specific authority to inquire would be

9926much more difficult than is the resolution of the issues at

9937hand.

99385 / The Department did allege (and prove), in Case No. 07-4628,

9950that Filippi had given false and fraudulent answers to the

9960Troubled Application Question. That, however, did not amount to

9969enforcement of the Troubled Application Question, but rather

9977vindicated the separate and independent duty, arising from §

99861012.56(2)(b), Fla. Stat., of applicants to tell the whole

9995truth. Further, the Troubled Application Question is common to

10004both the outdated application and the revised (adopted)

10012application. Therefore, it was not in any meaningful sense

"10021unadopted."

10022COPIES FURNISHED:

10024Timothy P. Atkinson, Esquire

10028Gavin D. Burgess, Esquire

10032Oertel, Fernandez, Cole & Bryant

10037Post Office Box 1110

10041Tallahassee, Florida 32302-1110

10044Charles T. Whitelock, Esquire

10048Whitelock & Associates, P.A.

10052300 Southeast 13th Street

10056Fort Lauderdale, Florida 33316-1924

10060Deborah K. Kearney, General Counsel

10065Department of Education

100681244 Turlington Building

10071Tallahassee, Florida 32399-0400

10074Scott Boyd, Executive Director/General Counsel

10079Joint Administrative Procedures Committee

10083120 Holland Building

10086Tallahassee, Florida 32399-1300

10089Dr. Eric J. Smith, Commissioner

10094Department of Education

10097Turlington Building, Suite 1514

10101325 West Gaines Street

10105Tallahassee, Florida 32399-0400

10108Liz Cloud, Program Administrator

10112Administrative Code

10114Department of State

10117R. A. Gray Building, Suite 101

10123Tallahassee, Florida 32399

10126NOTICE OF RIGHT TO JUDICIAL REVIEW

10132A party who is adversely affected by this Final Order is

10143entitled to judicial review pursuant to Section 120.68, Florida

10152Statutes. Review proceedings are governed by the Florida Rules

10161of Appellate Procedure. Such proceedings are commenced by

10169filing the original notice of appeal with the Clerk of the

10180Division of Administrative Hearings and a copy, accompanied by

10189filing fees prescribed by law, with the District Court of

10199Appeal, First District, or with the District Court of Appeal in

10210the Appellate District where the party resides. The notice of

10220appeal must be filed within 30 days of rendition of the order to

10233be 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):