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.


View Dockets  
Summary: The Motion to Dismiss is granted. Petitioner does not have standing to bring challenge to the proposed rules in question.

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 Florida’s

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 Petitioner’s 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 Petitioner’s 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 challenger’s

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 Petitioner’s business, but relies on cases in which

697the challenged rules directly regulate a litigant’s profession,

705not a corporation acting as an applicant’s 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 Petitioner’s 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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 01/28/2009
Proceedings: BY ORDER OF THE COURT: Appeal dismissed.
PDF:
Date: 05/20/2008
Proceedings: Index, Record, and Certificate of Record sent to the First District Court of Appeal.
PDF:
Date: 03/24/2008
Proceedings: Index (of the Record) sent to the parties of record.
PDF:
Date: 03/24/2008
Proceedings: Invoice for the record on appeal mailed.
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: 02/07/2008
Proceedings: Notice of Appeal filed.
PDF:
Date: 01/11/2008
Proceedings: Notice of Service of Answers to Petitioner`s Interrogatories filed.
PDF:
Date: 01/11/2008
Proceedings: Response to Petitioner`s Request for Production filed.
PDF:
Date: 01/10/2008
Proceedings: Recommended Order
PDF:
Date: 01/10/2008
Proceedings: Final Order on Motion to Dismiss. CASE CLOSED.
PDF:
Date: 01/09/2008
Proceedings: Respondent`s Request for Admissions filed.
PDF:
Date: 01/09/2008
Proceedings: Respondent`s Request for Production filed.
PDF:
Date: 01/09/2008
Proceedings: Notice of Service of Respondent`s Interrogatories to Petitioner filed.
PDF:
Date: 01/07/2008
Proceedings: Petitioner`s Response to Respondent`s Motion to Dismiss 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: 12/28/2007
Proceedings: Response to Request for Admissions filed.
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: 12/21/2007
Proceedings: Notice of Service of Petitioner`s Request for Admissions filed.
PDF:
Date: 12/21/2007
Proceedings: Notice of Service of Petitioner`s Request for Production filed.
PDF:
Date: 12/18/2007
Proceedings: Order on Motion to Amend Petition for Determination of Invalidity of Proposed Rules.
PDF:
Date: 12/18/2007
Proceedings: Motion to Dismiss for Lack of Standing filed.
PDF:
Date: 12/06/2007
Proceedings: Motion to Amend Petition for Determination of Invalidity of Proposed Rules filed.
PDF:
Date: 11/30/2007
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 11/30/2007
Proceedings: Notice of Hearing (hearing set for January 18, 2008; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 11/30/2007
Proceedings: Order of Consolidation (DOAH Case Nos. 07-4792RP and 07-5370RP).
Date: 11/30/2007
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 11/27/2007
Proceedings: Motion to Consolidate Rule Challenge Petitions filed.
PDF:
Date: 11/27/2007
Proceedings: Order of Assignment.
PDF:
Date: 11/26/2007
Proceedings: Rule Challenge transmittal letter to Liz Cloud from Claudia Llado copying Scott Boyd and the Agency General Counsel.
PDF:
Date: 11/21/2007
Proceedings: Petition for Determination of Invalidity of Proposed Rules filed.

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

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Related Florida Rule(s) (2):