07-005370RP
Professional Licensure Services, Inc. vs.
Department Of Business And Professional Regulation, Construction Industry Licensing Board
Status: Closed
DOAH Final Order on Thursday, January 10, 2008.
DOAH Final Order on Thursday, January 10, 2008.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8PROFESSIONAL LICENSURE ) )
12SERVICES, INC., )
15)
16Petitioner, )
18) Case Nos. 07-4792RP
22vs. ) 07-5370RP
25)
26DEPARTMENT OF BUSINESS AND )
31PROFESSIONAL REGULATION, )
34CONSTRUCTION INDUSTRY )
37LICENSING BOARD, )
40)
41Respondent, )
43FINAL ORDER ON MOTION TO DISMISS
49Respondent, Department of Business and Professional
55Regulation, Construction Industry Licensing Board (Board), filed
62a Motion to Dismiss for Lack of Standing, seeking to dismiss the
74Amended Petition for Determination of Invalidity of Proposed
82Rules filed by Petitioner, Professional Licensure Services, Inc.
90The primary basis for the Motion to Dismiss is that Petitioner
101lacks standing to bring this rule challenge. Petitioner filed a
111response in opposition.
114Section 120.56(1)(a), Florida Statutes (2007), states that
121any person substantially affected by a rule or a proposed rule
132may seek an administrative determination of the rule on the
142ground that the rule is an invalid exercise of delegated
152legislative authority. In order to demonstrate that a party is
162substantially affected by a rule, one must establish that
171application of the rule will result in "a real and sufficiently
182immediate injury in fact" and that "the alleged interest is
192arguably within the zone of interest to be protected or
202regulated." Florida Board of Medicine v. Florida Academy of
211Cosmetic Surgery, Inc. , 808 So. 2d 243, 250 (Fla. 1st DCA 2002).
223The Amended Petition includes the following allegations
230regarding standing: 1/
233Parties
2342. Petitioner is a Florida corporation that
241assists contractors and potential
245contractors with navigating Floridas
249regulatory and licensure framework.
253Petitioner assists its clients regarding
258certified and registered license
262applications and processes. Petitioner
266assists in the submission of 100 to 150 of
275the approximately 1,000 applications that
281are submitted to the Board each month. The
289proposed rules substantially affect
293Petitioner by enlarging, modifying and
298contravening the statutes which form the
304basis of Petitioners services.
308Additionally, the proposed rules provide
313further restrictions for contractors, which
318substantially affects Petitioner by reducing
323the pool of licensure applicants in the
330State of Florida. This reduction will
336likewise reduce the number of people who
343would seek Petitioners services. See Gold
349Coast School of Construction v. DBPR , DOAH
356Case No. 04-0692RP, ¶ 23 (2004). See also
364Florida Board of Medicine v. Florida Academy
371of Cosmetic Surgery, Inc. , 808 So.2d 243,
378251 (Fla. 1st DCA 2002) (a party may
386challenge a rule that has a collateral
393financial impact on the challengers
398business). Finally, Petitioner is
402substantially affected because it regularly
407attends Board meetings and generally
412advocates for current and future clients.
418In its Response to the Motion to Dismiss, Petitioner relies
428on several cases which address the standing of trade or
438professional associations in rule challenge proceedings.
444Trade or professional associations have standing in certain
452circumstances to challenge a rule:
457To be permitted to do so, the trade or
466professional association must demonstrate
470that [1] a substantial number of its
477members, although not necessarily a
482majority, are 'substantially affected' by
487the challenged rule[;]. . . [2] the subject
496matter of the rule [is] within the
503association's general scope of interest and
509activity[;] and [3] the relief requested
516[is] of the type appropriate for a trade
524association to receive on behalf of its
531members.'
532Florida Board of Medicine v. Florida Academy of
540Cosmetic Surgery, Inc., supra at 250 , quoting Florida
548Home Builders Ass'n v. Department of Labor &
556Employment Security , 412 So. 2d 351 (Fla. 1982).
564Respondent correctly points out that Petitioner is not an
573association representing licensees or license applicants, but is
581merely in the business of advising those persons who are
591affected by regulations, including licensing rules. The cases
599relied on by Petitioner which address associational standing are
608distinguishable from the instant case and do not address
617entities such as Petitioner. e.g. , NAACP v. Florida Board of
627Regents , 863 So. 2d 294, 297-298 (Fla. 2003)(concluding that a
637trade or professional association should be able to institute a
647rule challenge if a substantial number of its members are
657substantially affected, even though it is acting solely as the
667representative of its members).
671Petitioner further argues that the adoption of these
679proposed rules would result in several collateral financial
687impacts on Petitioners business, but relies on cases in which
697the challenged rules directly regulate a litigants profession,
705not a corporation acting as an applicants surrogate. e.g. ,
714Televisual Communications, Inc., v. State Department of Labor &
723Employment Security , 667 So. 2d 372 (Fla. 1st DCA 1995 (a
734publishing company of educational video programs for medical
742professions had standing to challenge a proposed rule that would
752require the presence of an instructor when videos were used);
762and Department of Professional Regulation v. Sherman College ,
770682 So. 2d 559, 560-561 (Fla. 1st DCA 1995) (chiropractic
780college had standing to challenge rules which required that
789candidates for licensure received degree from college with both
798regional and professional accreditation).
802Petitioner challenges proposed Rules 61G4-15.005, 61G4-
80815.006, 61G4-12.011, and 61G4-15.0021, which deal with
815certification, registration and licensure of applicants
821regulated by the Board. Petitioner acknowledges in paragraph 10
830of its response to the Motion to Dismiss that the proposed rules
842in question do not regulate Petitioners business directly. The
851proposed rules which are the subject of this challenge regulate
861applicants, not entities who help applicants.
867Accordingly, the Petition does not sufficiently state
874specific facts showing that Petitioner is substantially affected
882in that the Petition does not include a specific showing of a
"894real and sufficiently immediate injury in fact" that is within
904the "zone of interest to be protected or regulated."
913The undersigned is persuaded that, under the rationale of
922established case law regarding standing in rule challenge
930proceedings, Petitioner lacks standing to bring this rule
938challenge.
939Petitioner does not request that it be given an opportunity
949to amend the Petition to assert and allege further facts which
960evidence the substantial effect the proposed rules have on
969Petitioners. Whether requested or not, the effect of the
978proposed rules on Petitioner has been adequately pled and could
988not be improved upon by amendment. Petitioner is simply not an
999entity which is substantially affected by the proposed rules as
1009contemplated by Section 120.56(1)(a), Florida Statutes, and the
1017case law interpreting that section. Accordingly, the
1024undersigned finds that allowing amendment to the Petition on
1033this occasion would not allow Petitioner to state a cause of
1044action in this rule challenge proceeding. See Undereducated
1052Foster Children of Florida v. Florida Senate et al. , 700 So. 2d
106466 (Fla. 1st DCA 1997).
1069Based upon the above, it is
1075ORDERED:
10761. The Motion to Dismiss is granted.
10832. The hearing scheduled for January 18, 2008, is hereby
1093canceled.
1094DONE AND ORDERED this 10th day of January, 2008, in
1104Tallahassee, Leon County, Florida.
1108S
1109___________________________________
1110BARBARA J. STAROS
1113Administrative Law Judge
1116Division of Administrative Hearings
1120The DeSoto Building
11231230 Apalachee Parkway
1126Tallahassee, Florida 32399-3060
1129(850) 488-9675 SUNCOM 278-9675
1133Fax Filing (850) 921-6847
1137www.doah.state.fl.us
1138Filed with the Clerk of the
1144Division of Administrative Hearings
1148this 10th day of January, 2008.
1154ENDNOTE
11551/ The case was proceeding under the Amended Petition for
1165Determination of Invalidity of Proposed Rules. A Second Amended
1174Petition for Determination of Invalidity of Proposed Rules was
1183filed but no ruling had been issued as yet. In any event, the
1196Amended and proposed Second Amended Petition contain the
1204identical allegations regarding Petitioner's standing as quoted
1211herein.
1212COPIES FURNISHED:
1214Daniel R. Biggins, Esquire
1218Office of the Attorney General
1223The Capitol, Plaza Level 01
1228Tallahassee, Florida 32399
1231Timothy P. Atkinson, Esquire
1235Gavin D. Burgess, Esquire
1239Oertel, Fernandez, Cole & Bryant, P.A.
1245Post Office Box 1110
1249Tallahassee, Florida 32302-1110
1252Scott Boyd, Executive Director
1256and General Counsel
1259Administrative Procedures Committee
1262Holland Building, Room 120
1266Tallahassee, Florida 32399-1300
1269Liz Cloud, Program Administrator
1273Administrative Code
1275Department of State
1278R. A. Gray Building, Suite 101
1284Tallahassee, Florida 32399
1287G. W. Harrell, Executive Director
1292Construction Industry Licensing Board
1296Department of Business and
1300Professional Regulation
1302Northwood Center
13041940 North Monroe Street
1308Tallahassee, Florida 32399-0792
1311Ned Luczynski, General Counsel
1315Department of Business and
1319Professional Regulation
1321Northwood Centre
13231940 North Monroe Street
1327Tallahassee, Florida 32399-0792
1330Holly Benson, Secretary
1333Department of Business and
1337Professional Regulation
1339Northwood Centre
13411940 North Monroe Street
1345Tallahassee, Florida 32399-0792
1348NOTICE OF RIGHT TO JUDICIAL REVIEW
1354A party who is adversely affected by this Final Order is
1365entitled to judicial review pursuant to Section 120.68, Florida
1374Statutes. Review proceedings are governed by the Florida Rules
1383of Appellate Procedure. Such proceedings are commenced by
1391filing the original Notice of Appeal with the agency Clerk of
1402the Division of Administrative Hearings and a copy, accompanied
1411by filing fees prescribed by law, with the District Court of
1422Appeal, First District, or with the District Court of Appeal in
1433the Appellate District where the party resides. The notice of
1443appeal must be filed within 30 days of rendition of the order to
1456be reviewed.
- Date
- Proceedings
- PDF:
- Date: 05/20/2008
- Proceedings: Index, Record, and Certificate of Record sent to the First District Court of Appeal.
- PDF:
- Date: 02/12/2008
- Proceedings: Letter to C. Llado from J. Wheeler acknowledging receipt of notice of appeal, DCA Case No. 1D08-632 filed.
- PDF:
- Date: 02/08/2008
- Proceedings: Certified copy of Notice of Appeal sent to the First District Court of Appeal this date. filed.
- PDF:
- Date: 01/11/2008
- Proceedings: Notice of Service of Answers to Petitioner`s Interrogatories filed.
- PDF:
- Date: 01/09/2008
- Proceedings: Notice of Service of Respondent`s Interrogatories to Petitioner filed.
- PDF:
- Date: 12/28/2007
- Proceedings: Second Amended Petition for Determination of Invadility of Proposed Rules filed.
- PDF:
- Date: 12/28/2007
- Proceedings: Motion to Clarify Amended Petition for Determination of Invalidity of Proposed Rules filed.
- PDF:
- Date: 12/28/2007
- Proceedings: Order Granting Extension of Time (Response to Motion to Dismiss to be filed by January 7, 2008).
- PDF:
- Date: 12/27/2007
- Proceedings: Petitioner`s Motion for Extension of Time to File Petitioner`s Response to Respondent`s Motion to Dismiss for Lack of Standing filed.
- PDF:
- Date: 12/21/2007
- Proceedings: Notice of Service of Petitioner, Professional Licensure Service` First Set of Interrogatories to Respondent, Florida Department of Business & Professional Regulation, Construction Industry Licensing Board filed.
- PDF:
- Date: 12/18/2007
- Proceedings: Order on Motion to Amend Petition for Determination of Invalidity of Proposed Rules.
- PDF:
- Date: 12/06/2007
- Proceedings: Motion to Amend Petition for Determination of Invalidity of Proposed Rules filed.
- PDF:
- Date: 11/30/2007
- Proceedings: Notice of Hearing (hearing set for January 18, 2008; 9:30 a.m.; Tallahassee, FL).
- Date: 11/30/2007
- Proceedings: CASE STATUS: Motion Hearing Held.
Case Information
- Judge:
- BARBARA J. STAROS
- Date Filed:
- 11/21/2007
- Date Assignment:
- 11/27/2007
- Last Docket Entry:
- 01/28/2009
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Department of Business and Professional Regulation
- Suffix:
- RP
Counsels
-
Timothy P. Atkinson, Esquire
Oertel, Fernandez, Bryant and Atkinson, P.A.
Post Office Box 1110
Tallahassee, FL 32302
(850) 521-0700 -
Daniel Biggins, Esquire
8276 Colters Crossing
Tallahassee, FL 32309
(850) 668-3580 -
Timothy P Atkinson, Esquire
Oertel, Fernandez, Bryant & Atkinson, P.A.
Post Office Box 1110
Tallahassee, FL 32302
(850) 521-0700