97-003864RX Gregory J. Harris vs. Marriage And Family Therapy Status: Closed DOAH Final Order on Thursday, May 21, 1998.

Summary: Use of "document" in the rule, setting standards for qualified supervisor of marriage & family therapist, is not an invalid exercise of delegated legislative authority; Bd?s implementation of 120.569, FS, is not agency statement that constitutes a rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREGORY J. HARRIS, )

)

Petitioner, )

)

vs. ) Case No. 97-3864RX

)

BOARD OF CLINICAL SOCIAL WORK, )

MARRIAGE AND FAMILY THERAPY AND )

MENTAL HEALTH COUNSELING, (

)

Respondent. )

__________________________________)

GREGORY J. HARRIS, )

)

Petitioner, )

)

vs. ) Case No. 97-5032RU

)

BOARD OF CLINICAL SOCIAL WORK, )

MARRIAGE AND FAMILY THERAPY AND )

MENTAL HEALTH COUNSELING, )

)

Respondent. )

__________________________________)

FINAL ORDER

A formal administrative hearing was held in this case before

the Division of Administrative Hearings, by Daniel M. Kilbride,

Administrative Law Judge, on March 16, 1998, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Eric B. Tilton, Esquire

Gustafson, Tilton, Henning & Metzger, P.A.

204 South Monroe Street, Suite 200

Tallahassee, Florida 32301

For Respondent: Lee Ann Gustafson

Assistant Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Case No. 97-3864RX

Whether Rule 64B4-21.007, formerly numbered 59P-21.007,

Florida Administrative Code, is an invalid exercise of delegated

legislative authority.

Case No. 97-5032RU

Whether the determination, in the first instance, by the

Respondent of whether a petitioner for a Chapter 120, Florida

Statutes, formal hearing has raised a disputed issue of material

fact, is a statement that constitutes a rule, pursuant to Section

120.52(15), Florida Statutes.

PRELIMINARY STATEMENT

On August 22, 1997, Petitioner filed a Petition for

Administrative Determination of a Rule with the Clerk of the

Division of Administrative Hearings. This case was assigned to

the undersigned and was set for hearing. Shortly thereafter,

this matter was abated on motion of the Petitioner, in order for

Petitioner to seek a waiver of certain portions of the rule. On

October 27, 1997, Petitioner filed a Challenge to an Agency

Statement Which is Defined as a Rule. The case was assigned to

the undersigned Judge. An Amended Challenge was filed on

November 14, 1997. The two cases were consolidated by Order,

dated December 4, 1997. The formal hearing was continued twice

at the request of the Respondent. Respondent's Motion for

Summary Final Order was denied on February 16, 1998.

At the hearing o n March 16, 1998, Petitioner offered the

testimony of Dr. F. Donald Kelly, Jr., and Dr. Gloria Lobnitz.

Petitioner submitted four exhibits. Respondent offered the

testimony of Dr. Lobnitz, and submitted six exhibits.

The transcript of the hearing was filed on April 1, 1998.

Petitioner filed his proposed final order on April 17, 1998.

Respondent filed its proposals on April 16, 1998. Each of the

parties' proposals have been given careful consideration in the

preparation of this final order.

FINDINGS OF FACT

Based on the stipulation of the parties and the evidence

educed at hearing, the following findings of fact are found:

1. Petitioner filed an application for licensure as a

marriage and family therapist pursuant to Section 491.005,

Florida Statutes.

2. After consideration of the documents submitted by

Petitioner, Respondent issued its Order of Intent to Deny filed

August 1, 1997.

3. The grounds stated by the Respondent for denying

Petitioner's application are that Petitioner did not demonstrate

that he completed two years of clinical supervision under the

supervision of a supervisor that meets the qualifications stated

in Rule 64B4-21.007, Florida Administrative Code.

4. Petitioner completed six semester hours of graduate

coursework in marriage and family systemic theories and

techniques at an accredited university. The courses were taught

by Petitioner's clinical supervisor.

5. Petitioner's supervisor for his clinical experience is a

licensed psychologist who did not complete, as a student, six

semester hours or eight quarter hours of graduate coursework in

marriage and family systemic theories and techniques.

6. The Board interprets Rule 64B4-21.007 to require the

supervisor to take the coursework as a student. Teaching these

subjects is not considered coursework.

7. Petitioner filed a timely Petition for Formal Hearing

which alleged that he had completed two years of clinical

supervision under a qualified supervisor.

8. Respondent denied Petitioner's Petition for Formal

Hearing on the grounds that Petitioner had not raised a disputed

issue of material fact.

9. Petitioner filed a notice of appeal of Respondent's

Order denying the Petition for Formal Hearing. Said appeal is

pending before the Florida First District Court of Appeal.

10. When Respondent receives petitions for hearing on

licensure denials requesting a hearing pursuant to Section

120.57(1), Florida Statutes, the Board reviews the petition and

the application file and determines if the applicant has raised a

disputed issue of material fact.

11. Rule 64B4-21.007, Florida Administrative Code, was

originally adopted on July 6, 1988, as Rule 21CC-21.007.

12. The rule, as originally promulgated, defined "qualified

supervisor" as, inter alia , a licensed psychologist who also

meets the educational requirements for licensure as a marriage

and family therapist. The language requiring the licensed

psychologist to meet the educational requirements for licensure

as a marriage and family therapist was deleted by the Board in

1993. The deleted language would have required the supervisor to

demonstrate not only six semester hours of graduate coursework in

marriage and family systemic theories and techniques, but also to

demonstrate all of the coursework required for licensure as a

marriage and family therapist, a practicum in marriage and family

therapy under a qualified supervisor as defined by the Board, and

supervised experienced under a qualified supervisor as defined by

the Board.

13. In 1996, the Board amended the rule to de fine

"qualified supervisor" as, inter alia , a licensed psychologist

who "can document a minimum of six semester or eight quarter

hours of graduate coursework in marriage and family systemic

theories and techniques."

14. The purpose of the amendment was to provide interns

access to qualified people to supervise applicants for licensure

in marriage and family therapy, while ensuring that the

supervisor was in fact supervising for marriage and family

therapy, i.e ., training marriage and family interns.

15. Significant differences exist between the profession of

marriage and family therapy and the use of marriage and family

systemic theories as a modality in the practice of psychology.

16. The legislature recognizes those differences and

requires specific education for each of the licenses issued under

Chapter 491.

17. The uniqueness of marriage and family therapy as a

distinct profession is an acceptance and integration of a

systemic paradigm of thought. The professional marriage and

family therapist sees the whole as greater than the sum of its

parts and seeks to understand the interrelationship of the parts.

18. The education and training required for entry into the

profession of marriage and family therapy provides socialization

into the systemic framework of the profession, and the two years

of supervised clinical experience is a part of that socialization

process.

19. The Respondent alleges that it would not be appropriate

for the Board to accept only teaching experience in lieu of

coursework for an individual to meet the requirements a qualified

supervisor.

20. The Board accepts various kinds of educational

experiences as meeting the educational requirements of

Rule 64B4-21.007(1)(d), including audited courses and externships

from recognized clinics.

21. In requiring "qualified supervisors" to demonstrate

education, as opposed to teaching experience, the Board seeks to

establish a standard and fair evaluation procedure.

22. There is a standardization that has an element of

fairness in a paper review in accepting a transcript from a

regionally accredited institution as proof of the required

education. The Respondent also alleges that accepting teaching

experience as meeting the educational requirements of

Rule 64B4-21.007 presents a daunting task and would amount to

accreditation by the Board of courses taught by persons

applicants seek to have approved as qualified supervisors.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding, pursuant to Section 120.56(1), Florida Statutes

(1997).

Standard for Challenging Existing Rule

24. The 1996 amendments to the Administrative Procedures

Act (APA) took effect on October 1, 1996. Section 120.56(1),

Florida Statutes (1997), authorizes "[a]ny person substantially

affected by a rule . . . [to] seek an administrative

determination of the invalidity of the rule on the ground that

the rule is an invalid exercise of delegated legislative

authority."

25. Section 1 20.56(3), Florida Statutes (1997), authorizes

a substantially affected person to "seek an administrative

determination of the invalidity of an existing rule at any time

during the existence of the rule."

26. Section 120.52(8), Florida Statutes (1997), defines

"invalid exercise of delegated legislative authority" as:

[A]ction which goes beyond the powers,

functions, and duties delegated by the

Legislature. A proposed or existing rule is

an invalid exercise of delegated legislative

authority if any one of the following

applies:

a. The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

b. The agency has exceeded its grant of

rulemaking authority, citation to which is

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

c. The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required by

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

d. The rule is vague, fails to establish

adequate standards for agency decisions or

vests unbridled discretion in the agency;

e. The rule is arbitrary or capricious;

f. The rule is not supported by competent

substantial evidence; or

g. The rule imposes regulatory costs on the

regulated person, county, or city which could

be reduced by the adoption of less costly

alternatives that substantially accomplish

the statutory objectives.

27. Section 120.536(1), Florida Statutes (1997), further

provides:

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement, interpret,

or make specific the particular powers and

duties granted by the enabling statute. No

agency shall have authority to adopt a rule

only because it is reasonably related to the

purpose of the enabling legislation and is

not arbitrary and capricious, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and functions

of an agency shall be construed to extend no

further than the particular powers and duties

conferred by the same statute.

28. Although Section 120.56(2), Florida Statutes (1997),

places the burden on the agency to prove that a newly proposed

rule is not an invalid exercise of delegated legislative

authority as to the objections raised, Section 120.56(3), Florida

Statutes, regarding existing rules, transfers no such burden to

the agency; thus, leaving Petitioner with the burden to establish

the invalidity of an existing rule. Cortes v. State Board of

Regents , 655 So. 2d 132, 135-136 (Fla. 1st DCA 1995).

29. Petitioner clearly is a substantially effected person.

See generally Moorhead v. Department of Professional Regulation,

Board of Psychological Examiners , 503 So. 2d 1318 (Fla. 1st DCA

1987). Therefore, Petitioner, in order to establish the

invalidity of an existing rule, must present evidence that the

rule is vague, fails to establish adequate standards for agency

decisions or vests unbridled discretion in the agency; or that

Respondent promulgated this rule without thought or reason.

Agrico Chemical Co. v. Department of Environmental Regulation ,

406 So. 2d 478 (Fla. 2d DCA 1981), rev. den ., 415 So. 2d 1359

(Fla. 1982).

30. In directing agencies to enact rules to implement

statutory mandates, the legislature is not delegating to an

administrative official the power to say what the law is, but

rather the ability to execute the law "pursuant to and within the

confines of the law itself." Brewer v. Insurance Commissioner

and Treasurer , 392 So. 2d 593, 595 (Fla. 1st DCA 1981); see also

Florida Beverage Corp. v. Wynne , 306 So. 2d 200 (Fla. 1st DCA

1975).

"While executive branch agencies cannot usurp

legislative prerogatives, 'rulemaking

authority may be implied to the extent

necessary to properly implement a statute

governing the agency's statutory duties and

responsibilities.' Fairfield Communities v.

Florida Land and Water Adjudicatory Comm'n ,

522 So.2d 1012 (Fla. 1st DCA 1988). 'An

administrative agency must have some

discretion when a regulatory statute is in

need of construction in its implementation.'

General Tel. Co. of Florida v. Marks , 500

So. 2d 142, 144 (Fla. 1986). An

administrative rule by which an agency

exercises such discretion, or which fails to

extinguish the discretion a statute confers,

is not invalid on that account."

Cortes v. Board of Regents , supra at 136-137.

As to Case No. 97-3864RX

31. The applicab le statute, pursuant to which the rule was

promulgated, is Section 491.005(3), Florida Statutes, which

establishes the requirements for licensing as a Marriage and

Family Therapist. The pertinent portion of this statute which

pertains to who is a qualified supervisor, reads as follows:

(3) Upon verification of documentation and

payment of a fee . . . the department shall

issue a license as a marriage and family

therapist to an applicant who the board

certifies:

* * *

(b)1. Has a minimum of a master's degree

with major emphasis in marriage and family

therapy, or a closely related field, and has

completed all of the following requirements:

* * *

d. A minimum of one supervised clinical

practicum, internship, or field experience in

a marriage and family counseling

setting, . . . under the supervision of an

individual who met the requirements for

supervision under paragraph (c). . . .

* * *

(c) Has had not less than 2 years of

clinical experience during which 50 percent

of the applicant's clients were receiving

marriage and family therapy services, which

must be at the postmaster's level under the

supervision of a licensed marriage and family

therapist with at least 5 years of

experience, or the equivalent, who is a

qualified supervisor as determined by the

board. . . .

32. The contested paragraph within Rule 64B4-21.007,

Florida Administrative Code, adopted in November of 1996, reads

as follows:

64B4-21.007 Definition of "a Licensed

Marriage and Family Therapist with at Least

Five Years Experience or the Equivalent, Who

is a Qualified Supervisor."

(1) "A licensed marriage and family

therapist with at least five years experience

or the equivalent, who is a qualified

supervisor," as used in Section

491.005(3)(c), Florida Statutes, is defined

as an individual who, during the period for

which the applicant claims supervisor, met

one of the following:

* * *

(d) Was licensed as a psychologist, clinical

social work, or mental health counselor in

Florida, or in the state in which the

supervision took place, and can document a

minimum of six (6) semester or eight (8)

quarter hours of graduate coursework in

marriage and family systemic theories and

techniques, and five (5) years of clinical

experience in marriage and family therapy.

33. The rule must be weighed against its statutory

authority, and then must be measured against the requirements of

Section 120.52(8), Florida Statutes.

34. Section 491.005(3)(b) and (c), Florida Statutes, sets

forth the educational and experiential requirements for licensure

as a marriage and family therapist in the state of Florida.

Among those requirements are not less than two years of clinical

experience during which 50 percent of the applicant's clients

were receiving marriage and family therapy services, which must

be at the post-master's level under the supervision of a licensed

marriage and family therapist with at least five years of

experience, or the equivalent, who is a qualified supervisor as

determined by the board.

35. Rule 64B4-21.007, Florida Administrati ve Code, defines

"qualified supervisor," to include the equivalency requirements

of "a licensed marriage and family therapist with at least 5

years experience." A licensed marriage and family therapist, to

be licensed, must have demonstrated completion of six semester

(or eight quarter) hours in marriage and family systemic

theories.

36. From the evidence, it appears that the Board has

determined that the same requirements must be met by supervisors

of clinical practice in order to qualify under the statute. They

have set forth this requirement in Rule 64B-21.007(1)(d) through

the use of the term "document . . . graduate coursework. . . ."

37. Rule 64B4-21.007 implements the specific statutory

authority specifically granted in Section 491.005(3)(c), and the

use of the term "document . . . graduate coursework" does not

enlarge, modify or contravene the statute.

38. In 1997, the legislature amended Section 491.005(3)(c),

Florida Statutes, to require persons who intend to practice in

Florida to meet the experience requirements of that section to

register pursuant to Section 491.0045, Florida Statutes. The

legislature did not amend the language with regard to who is a

"qualified supervisor."

When the legislature reenacts a statute, it

is presumed to know and adopt the

construction of the statute by the agency

responsible for its administration, except to

the extent that the new statute differs from

prior constructions.

Cole Vision Corporation v. Department of Business and

Professional Regulation, Board of Optometry , 668 So. 2d 404, 408-

409 (Fla. 1st DCA 1997). The amendments to Rule 64B4-21.007 were

adopted in November 1996, prior to the amendment of the statute.

The legislature must be presumed to have adopted the Board's use

the term in the rule.

39. In Florida East Coast Industries v. Department of

Community Affairs , 677 So. 2d 357 (Fla. 1st DCA 1996), the court

considered whether rule amendments to Chapter 9J5, Florida

Administrative Code, the purpose of which were to "enunciate and

clarify certain minimum criteria which shall be used to determine

whether or not a comprehensive plan or plan amendment is in

compliance," on the grounds that the rules were vague.

Petitioner argued that the proper standard to determine vagueness

was whether men of common intelligence could understand the

rules. The Court rejected this standard on the grounds that the

standard is properly applied to penal provisions, meaning a fine,

penalty or confinement. The proper standard, as applied by the

Court, is the customary standard of statutory construction. If

words are not defined, they must be construed according to their

plain and ordinary meaning, or according to the meaning assigned

to the terms by the class of persons within the purview of the

statute. Id. At 362.

40. The terms which Petitioner disputes in Rule 64B4-21.007

are "document" and "coursework." In the rule, the word

"document" is used as a verb. Webster's Ninth New Collegiate

Dictionary, 1991 Merriam-Webster, Inc., defines "document" as

follows: to furnish documentary evidence of, to provide with

factual or substantial support for statements made. The rule, by

use of this word, requires the applicants to prove that the

supervisor has a minimum of six semester (or eight quarter) hours

of "graduate coursework" in marriage and family systemic theories

and techniques.

41. "Graduate coursework" is defined in relation to the

statute it implements. Section 491.005(3)(b), Florida Statutes,

requires the applicant for licensure to demonstrate completion of

graduate coursework in dynamics of marriage and family systems,

marriage therapy and counseling theory and techniques, and family

therapy and counseling techniques. A supervisor who is qualified

by licensure as a marriage and family therapist would have been

required, on initial licensure, to demonstrate completion of

graduate coursework in the statute courses. The meaning of the

requirement to "document . . . graduate course" is to prove by

documentary evidence having completed the identified coursework.

The absence of one tense of the verb "to complete" does not

change the requirement, or make it vague or ambiguous.

42. For the same reasons, the rule does not fail to

establish adequate standards. By plain and ordinary its meaning,

"document . . . graduate coursework" means to prove that one has

taken the identified coursework. How that requirement must be

documented is not exclusively determined by the Board. That is

left to the applicant (and his or her supervisor). The Board

does exercise discretion in its adjudicatory determinations of

whether the documentation is sufficient and can be the subject of

Section 120.57(1) formal hearing. See Koger v. Department of

Professional Regulation, Board of Clinical Social Work, Marriage

and Family Therapy and Mental Health Counseling , 647 So. 2d 312

(Fla. 1st DCA 1997); See also Department of Professional

Regulation, Board of Medical Examiners v. Durrani , 455 So. 2d

515, (Fla. 1st DCA 1984). However, that exercise of discretion

does not render the rule invalid.

43. The test for determining whether a proposed rule is

arbitrary and capricious was "borrowed" from traditional analysis

under the equal protection clause of the Fourteenth Amendment.

As stated by First District Court of Appeals,

Significantly, the same factors used to test

the validity of a statute on the ground that

it constitutes a violation of the equal

protection clause, in cases in which the

rational basis standard is applicable, apply

as well to rule challenges at the

administrative trial level. Agrico Chemical

Co. , 365 So. 2d at 762 ([T]he test of

arbitrariness to be applied in a proposed

rule challenge "is the same for the proposed

rule as it would be for a statute having the

same effect").

Florida League of Cities v. Department of Environmental

Regulation , 603 So. 2d 1363 at 1367-8 (Fla. 1st DCA 1992). That

test is whether the rule is unsupported by facts or logic or is

unsupported by thought or reason. The new standard in Section

120.536(1), Florida Statutes, does not eradicate the reasonably

related test, but instead narrows its scope. Section

120.52(8)(e) retained the requirement that a rule not be

arbitrary or capricious, but changed the focus of the agency's

action to whether the proposed rule is reasonably related to the

law the proposed rule seeks to implement rather than whether the

rule was reasonably related to the general purpose or legislative

intent behind the agency's enabling statute. The House of

Representatives Committee on Streamlining Governmental

Regulations Final Bill Analysis and Economic Impact Statement,

June 14, 1996, at page 25 states that the amendments to the APA

were intended to overrule the case law holding that rules and

regulations are valid so long as they are reasonably related only

to the purpose of the enabling legislation; a specific statute

must be implemented through the agency's general rulemaking

authority.

44. The record establishes that Rule 64B4-21.007 is

supported by facts and logic. The testimony of Dr. Lobnitz and

Dr. Kelly demonstrates that it is reasonable and necessary to

require education in the marriage and family systemic paradigm by

a proposed "qualified supervisor." Even Petitioner's expert

witness agreed that it would be inappropriate for the entire

requirement to be met by teaching experience only. The Board

accepts a variety of educational experiences as equivalent to

"graduate coursework." Dr. Lobnitz testified as to the

difficulty involved in evaluating teaching experience to

determine if that experience is equivalent to graduate study. In

fact, the current rule places a lighter burden on "qualified

supervisors" than the previous rule.

45. The rule is supported by logic and reason, and is

reasonably related to the specific statutory charge to determine

who is a qualified supervisor, and to ensure that marriage and

family therapy interns receive the necessary training and

professional socialization to become a member of the profession.

As to Case No. 97-5032RU

46. Section 120.56(4), Florida Statutes, provides:

Any person substantially affected by an

agency statement may seek an administrative

determination that the statement violates s.

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

text of the statement or a description of the

statement and shall state with particularity

facts sufficient to show that the statement

constitutes a rule under s. 120.52 and that

the agency has not adopted the statement by

the rulemaking procedure provided by

s. 120.54.

Enforcement of existing laws does not create new law, and does

not constitute an agency statement that constitutes a rule.

Security Mutual Life Insurance Company of Lincoln, Nebraska v.

Department of Insurance , ___ So. 2d ___ , DCA Case No. 97-2399

(Fla. 1st DCA March 12, 1998).

47. It is the statutory duty of the Board to decide if a

petitioner states a disputed issue of material fact. Section

120.569(2)(a), Florida Statutes, specifically directs

petitioners: "Except for any proceeding conducted as prescribed

in Section 120.56, a petition or request for a hearing under this

section shall be filed with the agency." The agency determines

whether or not a hearing before the Division of Administrative

Hearings is necessary: "If the agency requests an administrative

law judge from the division, it shall so notify the division.

. . . On the request of any agency, the division shall assign an

administrative law judge. . . ." The agency determines if a

request for an administrative law judge is proper.

48. Section 120.52(1), Florida Statutes (1997) defines

"licensing" as the agency process respecting the issuance,

denial, . . of a license or imposition of terms for the exercise

of a license." Section 120.60, Florida Statutes (1997) governs

the licensing process, and provides that the licensing process is

subject to Sections 120.569 and 120.57, Florida Statutes.

Section 120.60(3) provides that a notice of denial of an

application for licensure must inform the applicant of ". . . any

administrative hearing pursuant to Sections 120.569 and

120.57 . . . which may be available." Section 120.569(1),

Florida Statutes (1997) provides, in pertinent part, that ". . .

Section 120.57(1) applies whenever the proceeding involves a

disputed issue of material fact."

49. It is the Board's province to make a determination of

whether a disputed issue material fact exists. Rule

28-5.201(3)(a), Florida Administrative Code 1 , establishes the

standards for agency review of a petition:

(a) A petition may be denied if the

petitioner does not state adequately a

material factual allegation, such as a

substantial interest in the Agency

determination, or if the petition is

untimely.

50. The only question for the Board is whether the

statement is adequate, not whether the allegations can be proven,

in order for the petition to be forwarded to the Division of

Administrative Hearings for a formal hearing. See Greseth v.

Department of Health and Rehabilitative Services , 604 So. 2d 530,

at 532 (Fla. 4th DCA 1992) and Tuchman v. Florida State

University , 489 So. 2d 133, 134-35 (Fla. 1st DCA 1986).

51. Whether the Board properly determined that the

Petitioner has failed to raise a disputed issue of fact is an

adjudicatory process governed by Chapter 120 and is the subject

of an appeal to the First District Court of Appeal. This

tribunal is without authority to rule on that issue. What

constitutes a dispute of material fact or whether the Petitioner

has adequately raised a disputed issue of material fact are

different issues than who, by law, makes the initial

determination.

52. By making the determination of whether a dispute of

material fact has been raised, the Board is applying the law, not

implementing it or interpreting it in the sense of Section

120.52(15), Florida Statutes. The Board is not prescribing law

or policy; the law and policy exist in the statutes and the case

law interpreting the statutes. The law, not a Board policy,

requires the Board to make this determination. If the applicant

disagrees with the determination, the applicant is entitled to

appeal that decision. This applicant has in fact appealed that

decision.

53. None of the applicable provisions grant the Board

authority to adopt rules concerning the hearing procedures in

licensure issues. The Board is bound by the Uniform Rules

promulgated by the Administration Commission pursuant to Section

120.54(5), Florida Statutes (1997). The adoption by the Board of

a rule stating that petitioners who do not raise disputed issues

of fact are not entitled to a hearing pursuant to Section

120.57(1), Florida Statutes, would not constitute implementation

or interpretation of law or policy, nor would it prescribe law or

policy or describe procedure or practice requirements.

FINAL ORDER

Based on the foregoing findings of fact and conclusions of

law,

ORDERED that Petitioner has failed to demonstrate that Rule

59P-21.007, Florida Administrative Code, is an invalid exercise

of delegated legislative authority, and the Petition is

DISMISSED.

It is further,

ORDERED that Petitioner has failed to demonstrate that the

Board's implementation of Section 120.569, Florida Statutes, is

an agency statement that constitutes a rule, and the Petition is

DISMISSED.

DONE AND ORDERED this 21st day of May, 1998, in Tallahassee,

Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Di vision of Administrative Hearings

this 21st day of May, 1998.

ENDNOTE

1/ In 1997, Uniform Rules of Procedure were promulgated, which

all agencies are required to adopt. Section 120.54(5), Florida

Statutes. Rule 28-106.201(2) mandates that petitions for hearing

involving disputed issues of material fact must contain a

statement of all disputed issues of material fact. The

suggestive language of the former rule, that the petition

"should" state the facts disputed, has been replaced.

COPIES FURNISHED:

Eric B. Tilton, Esquire

Gustafson, Tilton, Henning &

Metzger, P.A.

204 South Monroe, Suite 200

Tallahassee, Florida 32301

Lee Ann Gustafson

Assistant Attorney General

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Angela T. Hall, Agency Clerk

Department of Health

1317 Winewood Boulevard

Building 6, Room 136

Tallahassee, Florida 32399-0700

Pete Peterson, General Counsel

Department of Health

1317 Winewood Boulevard

Building 6, Room 102-E

Tallahassee, Florida 32399-0700

Dr. James Howell, Secretary

Department of Health

1317 Winewood Boulevard

Building 6, Room 306

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO APPEAL

A Party who is adversely affected by this final order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing one copy of

the notice of appeal with the Agency Clerk of the Division of

Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First

District, or with the District Court of Appeal in the Appellate

District where the party resides. The notice of appeal must be

filed within 30 days of rendition of the order to be reviewed.