00-004199RU Phillip J. Stoddard vs. Department Of State, Division Of Licensing Status: Closed DOAH Final Order on Thursday, November 2, 2000.

Summary: Petitioner`s challenge to agency statements as rules that have not been adopted is dismissed; Respondent did not rely on unpromulgated rules in denying Petitioner`s application for licensure as a private investigator.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILIP J. STODDARD, )

)

Petitioner, )

)

vs. ) Case No. 00-4199RU

)

DEPARTMENT OF STATE, DIVISION )

OF LICENSING, )

)

Respondent. )

_______________________________)

FINAL ORDER OF DISMISSAL

This matter came on for consideration of Respondent's

Motion to Dismiss Petition or for Summary Final Order Dismissing

Rule Challenge Petition for Failure to Constitute a Cause of

Action and for Lack of Standing filed on October 20, 2000,

before the Division of Administrative Hearings, by its

Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Philip J. Stoddard, pro se

288 St. George Street

St. Augustine, Florida 32084

For Respondent: H. Wayne Mitchell, Esquire

Department of State

Division of Licensing

The Capitol, Mail Station 4

Tallahassee, Florida 32399-0250

STATEMENT OF THE ISSUES

The issues are whether Petitioner's rule challenge petiti on

should be dismissed for failure to present issues that meet the

requirements of Sections 120.56(1), 120.56(3), and 120.56(4),

Florida Statutes, and if so, whether Respondent is entitled to

an award of costs and attorneys' fees pursuant to Sections

120.569(2)(e), 120.595(3), and 120.595(4), Florida Statutes.

PRELIMINARY STATEMENT

On October 10, 2000, Petitioner Philip J. Stoddard

(Petitioner) filed a Request for Formal Administrative Hearing.

Petitioner's request challenged one of Respondent Department of

State, Division of Licensing's (Respondent) existing rules, Rule

1C-3.100(3)(a), Florida Administrative Code, as an invalid

exercise of delegated legislative authority. Petitioner also

alleged that certain of Respondent's statements were rules and

that Respondent had not adopted them as required by Section

120.54, Florida Statutes.

On October 17, 2000, the Division of Administrative

Hearings issued an Order of Assignment. This order advised the

parties that the case was assigned to Administrative Law Judge

Harry L. Hooper.

On October 20, 2000, Respondent filed a Motion to Dismiss

Petition or for Summary Final Order Dismissing Rule Challenge

Petition for Failure to Constitute a Cause of Action and for

Lack of Standing.

On October 23, 2000, the Divisio n of Administrative

Hearings transferred the case to the undersigned.

Petitioner filed a Motion for Leave to Amend on October 23,

2000. Petitioner simultaneously filed an Amended Request for

Formal Administrative Hearing in the instant case.

On October 24, 2000, the undersigned issued a Notice of

Hearing, scheduling the formal hearing for November 6, 2000.

The hearing is hereby cancelled for the reasons set forth below.

On October 25, 2000, Petitioner filed a Motion to Shorten Time

for Discovery. That same day, Respondent filed a Motion to

Abate Further Motion/Discovery Practice Pending Ruling on

Dispositive Motion to Dismiss.

On October 25, 2000, Respondent filed its response in

opposition to Petitioner's Motion for Leave to Amend.

Petitioner's Motion for Leave to Amend is denied for the reasons

set forth below in the Conclusions of Law.

On October 26, 2000, Petitioner filed an Amended Motion to

Shorten Time for Discovery.

On October 27, 2000, Petitioner filed a Memorandum of Law

in Opposition to Respondent's Motion to Dismiss or for Summary

Final Order.

On October 27, 2000, the undersigned heard oral argument in

a telephone conference on all pending motions. During that

conference, the undersigned granted Respondent's Motion to Abate

Further Motion/Discovery practice Pending Ruling on Dispositive

Motion to Dismiss.

After the telephone conference on October 27, 2000,

Petitioner filed a Notice of Withdrawal of: (1) Petitioner's

Motion to Shorten Time for Discovery; and (2) Petitioner's

Challenge to Rule 1-C3.100(3)(a), Florida Administrative Code.

FINDINGS OF FACT

1. Petitioner filed an application for a Class "C" private

investigator license on or about May 15, 2000.

2. By letter dated September 5, 2000, Respondent advised

Petitioner that his application for a Class "C" license as a

private investigator was denied. The letter stated as follows

in relevant part:

Failure to qualify under Section 493.6203,

Florida Statutes. You have not demonstrated

the necessary lawfully gained, verifiable,

full-time experience or appropriate

training. Your application is therefore

being denied.

3. Petitioner filed a request for an administrative

hearing with Respondent on or about September 13, 2000. He

filed an amended request for hearing with Respondent on or about

September 15, 2000.

4. On September 27, 2000, Respondent issued an Order

Dismissing Petition with Leave to Amend. This order referenced

Rule 28-106.201(2), Florida Administrative Code, and found that

Petitioner's hearing request was substantially deficient because

it did not contain the following:

(a) An explanation of how the petitioner's

substantial interest will be affected by the

agency determination;

(b) A statement of disputed issues of

material fact. The Petitioner has not

disputed the material facts at issue in this

case; which is whether the Petitioner

provided the Division with information which

the Division could then verify.

Verification is achieved by actually

speaking with the persons provided by an

applicant to obtain information as to what

duties were performed and to obtain a

percentage of the time worked which involved

investigative work. Petitioner provided

information concerning former employers in

the Affidavit of Experience section of the

application. After submitting the

application, Petitioner submitted an

affidavit from an investigator, however that

investigator was not Petitioner's employer

and therefore not in the position to verify

Petitioner's experience. For the first

time , in Petitioner's requests for a

hearing, Petitioner submits information

concerning a former career in executive

recruiting consisting of an affidavit,

notarized in Maryland, of a former co-

worker. This information was never provided

to the Division and is not listed anywhere

on the application submitted by Petitioner

nor is there any way to verify any of the

information in that affidavit as the

affiant's address and telephone number are

not provided. In his petitions for hearing

Petitioner has raised only legal issues

which are not legally the forum of a formal

administrative hearing. Section 120.569(1),

Florida Statutes . . . .

(c) A concise statement of the ultimate

facts alleged, including the specific facts

the petitioner contends warrant reversal or

modification of the agency's proposed

action;

(d) A statement of the specific rules or

statutes the petitioner contends require

reversal or modification of the agency's

proposed action . . . . (Emphasis added)

5. Respondent's Order Dismissing Petition with Leave to

Amend also determined that: (a) Petitioner's hearing requests

improperly mixed rule validity challenge arguments for Section

120.56, Florida Statutes, proceedings with disputed material

fact arguments for proceedings under Sections 120.569 and

120.57, Florida Statutes; (b) Petitioner's argument that his

Juris Doctorate training and related legal work experience met

the statutory requirements of Section 493.6203(4), Florida

Statutes, was a statutory construction/legal argument presented

in the guise of factual issues; (c) The Division of

Administrative Hearings does not have jurisdiction to decide

constitutional validity arguments in a Section 120.57(1),

Florida Statutes, proceeding; and (d) Petitioner's argument that

he is entitled to licensure by default due to the failure of the

agency to meet the 90-day time requirement of Section 120.60,

Florida Statutes, is a legal issue in light of the tolling

provision of Section 493.6108, Florida Statutes.

6. In a footnote to the Order Dismissing Petition with

Leave to Amend, Respondent referred to two documents that

Respondent attached as a courtesy to Petitioner. The first

document was Respondent's Opinion Letter No. 92-50. This letter

responded to a specific inquiry, determining that an attorney,

who was not a member of the Florida Bar and who wanted to

perform sub-contract investigative work for a licensed private

investigation agency, was not exempt under Section 493.6102(6),

Florida Statutes, from having to separately qualify for "C"

licensure requirements.

7. The second document was Respondent's internal

memorandum, identified herein as Opinion No. 92-4. This

memorandum determined that legal training and work experience of

attorneys do not automatically qualify them for a Class "C"

license. Instead, each application should be considered on a

case-by-case basis.

8. On October 10, 2000, Petitioner filed his Request for

Formal Administrative Hearing, citing Section 120.54, Florida

Statutes, as authority to challenge certain of Respondent's

rules and statements defined as rules. Petitioner claims that

Respondent routinely applies heightened scrutiny to applications

submitted by attorneys, persons who are qualified to be

attorneys, or others who have research and investigative skills

but no actual police or criminal justice experience.

9. Petitioner's hearing request first argues that

Respondent's Order Dismissing Petition with Leave to Amend,

together with its attachments, all of which are referenced

above, set forth policies having the effect of rules.

10. In Petitioner's "First Rule Challenge," he argues that

Respondent's interpretation of the time limitations for

processing license applications in Section 120.60, Florida

Statutes, together with Respondent's interpretation of the

tolling provisions of Section 493.6108(1), Florida Statutes,

constitute a rule. Petitioner concludes that Respondent is

without delegated legislative authority to extend the 90-day

application processing time of Section 120.60, Florida Statutes,

unless Respondent does not receive the fingerprint investigation

report required by Section 493.6108(1), Florida Statutes, prior

to the expiration of the 90-day processing period.

11. Petitioner's "Second Rule Challenge" argues that

Respondent's Opinion No. 92-4, a memorandum dated January 23,

1992, constitutes a rule because: (a) Respondent uses the

opinion to define the "practice of law"; and (b) Respondent

relies on the opinion in refusing to recognize experience gained

by lawyers in the practice of their profession unless the lawyer

was engaged in "full-time investigative work." However,

Respondent concludes by acknowledging that the opinion

recommends a case-by-case analysis of each attorney's

application to determine whether the attorney has the experience

and training required by Section 493.6203(4), Florida Statutes.

12. Petitioner's "Third Rule Challenge" also argues that

Respondent's Opinion No. 92-4 constitutes a rule. According to

Petitioner, Respondent relies on the opinion to find that an

attorney, even if a member of the Florida Bar, lacks creditable

"college coursework related to criminal justice, criminology, or

law enforcement administration." See Section 493.6203(4)(b),

Florida Statutes. Petitioner concludes that Respondent does not

have authority to interpret the meaning of the statutory term,

"related to," so narrowly.

13. Petitioner's hearing request did not include a "Fourth

Rule Challenge."

14. Petitioner's "Fifth Rule Challenge" states that

Respondent's Opinion Letter No. 92-50, dated October 20, 1992,

is an unpromulgated rule. Petitioner claims that Respondent

relies on this opinion to set broad policy concerning the

agency's treatment of the experience and educational

qualification of unlicensed attorneys. Petitioner states that

the opinion infringes on the regulatory jurisdiction of the

Florida Bar. Petitioner asserts that he is substantially

affected because he is an unlicensed attorney.

15. Petitioner's "Sixth Rule Challenge" states that

Respondent's Order Dismissing Petition with Leave to Amend is an

unpromulgated rule. Specifically, Petitioner claims Respondent

created a rule by refusing to credit applicants with work

experience that is not "verifiable by actually speaking with the

persons provided by an applicant to obtain information as to

what duties were performed and to obtain a percentage of the

time worked which involved investigative work." According to

Petitioner, Respondent has no authority to establish such an

agency specific meaning of the common term, "verifiable

experience."

16. Petitioner's "Seventh Rule Challenge" argues that

Respondent has adopted a special meaning for the term "private

investigation" which contravenes the statute. Petitioner takes

issue with Respondent's interpretation of "private

investigation" as defined in Section 493.6101(17), Florida

Statutes. Petitioner also challenges Respondent's

interpretation of the experience requirement of Section

493.6203(4), Florida Statutes.

17. Petitioner has withdrawn his "Eighth Rule challenge"

regarding the validity of Rule 1C-3.100(3)(a), Florida

Administrative.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this

proceeding. Sections 120.54 and 120.56, Florida Statutes.

19. Petitioner's request for hearing pursuant to Section

120.56(4)(b), Florida Statutes, must show that he is

substantially affected by agency statements meeting the

definition of a rule and that Respondent has not adopted the

statements as rules. Petitioner has not met this burden in his

Request for Formal Administrative Hearing filed with the

Division of Administrative Hearings on October 10, 2000, or his

proposed Amended Request for Formal Administrative Hearing filed

with the Division of Administrative Hearings on October 23,

2000.

20. Section 120.52(15), Florida Statutes, defines a "rule"

as follows in pertinent part:

(15) "Rule" means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirement of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

The term also includes the amendment or

repeal of a rule. The term does not

include:

(a) Internal management memoranda which do

not affect either the private interests of

any person or any plan or procedure

important to the public and which have no

application outside the agency issuing the

memorandum.

(b) Legal memoranda or opinions issued to

an agency by the Attorney General or agency

legal opinions prior to their use in

connection with an agency action.

21. Section 120.54, Florida Statutes, provides as follows

in relevant part:

120.54 Rulemaking

(1) GENERAL PROVISIONS APPLICABLE TO ALL

RULES OTHER THAN EMERGENCY RULES.--

(a) Rulemaking is not a matter of agency

discretion. Each agency statement defined

as a ruled by s. 120.52 shall be adopted by

the rulemaking procedure provided by this

section as soon as feasible and practicable.

* * *

(e) No agency has inherent rulemaking

authority . . . .

* * *

(5) UNIFORM RULES.--

(a)1. By July 1, 1997, the Administration

Commission shall adopt one or more sets of

uniform rules of procedure which shall be

reviewed by the committee and filed with the

Department of State. Agencies must comply

with the uniform rules by July 1, 1998. The

uniform rules shall establish procedures

that comply with the requirement of this

chapter. . . .

* * *

(b) The uniform rules of procedure adopted

by the commission pursuant to this

subsection shall include, but not be limited

to:

* * *

4. Uniform rules of procedure for the

filing of petitions for administrative

hearings pursuant to s. 120.569 or s.

120.57. Such rules shall include:

a. The identification of the petitioner.

b. A statement of when and how the

petitioner received notice of the agency's

action.

c. An explanation of how the petitioner's

substantial interests are or will be

affected by the action or proposed action.

d. A statement of all material facts

disputed by the petitioner or a statement of

the specific facts the petitioner contends

warrant reversal or modification of the

agency's proposed action.

f. A statement of the specific rules or

statutes the petitioner contends require

reversal or modification of the agency's

proposed action.

g. A statement of the relief sought by the

petitioner, stating precisely the action

petitioner wishes the agency to take with

respect to the proposed action.

22. Section 120.56, Florida Statutes, states as follows in

pertinent part:

120.56 Challenges to rules.--

(1) GENERAL PROCEDURES FOR CHALLENGING THE

VALIDITY OF A RULE OR A PROPOSED RULE.--

(a) Any person substantially affected by a

rule or a proposed rule may seek an

administrative determination of the

invalidity of the rule on the ground that

the rule is an invalid exercise of delegated

legislative authority.

(b) The petition seeking an administrative

determination must state with particularity

the provisions alleged to be invalid with

sufficient explanation of the facts or

grounds for the alleged invalidity and facts

sufficient to show that the person

challenging a rule is substantially affected

by it, or that the person challenging a

proposed rule would be substantially

affected by it.

(c) The petition shall be filed with the

division . . .

* * *

(e) Hearings held under this section shall

be conducted in the same manner as provided

by ss. 120.569 and 120.57, except that the

administrative law judge's order shall be

final agency action. . . .

* * *

(4) CHALLENGING AGENCY STATEMENTS DEFINED

AS RULES; SPECIAL PROVISIONS.--

(a) Any person substantially affected by an

agency statement may seek an administrative

determination that the statement violates s.

120.54(1)(a). The petitioner 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.

23. Section 120.569, Florida Statutes, states as follows

in relevant part:

120.569 Decisions which affect substantial

interests.--

(1) The provisions of this section apply in

all proceedings in which the substantial

interests of a party are determined by an

agency, unless the parties are proceeding

under s. 120.573 or s. 120.574. Unless

waived by all parties, s. 120.57(1) applies

whenever the proceeding involves a disputed

issue of material fact. Unless otherwise

agreed, s. 120.57(2) applies in all other

cases. . . .

(2)(a) Except for any proceeding conducted

as prescribed in s. 120.56, a petition or

request for a hearing under this section

shall be filed with the agency. If the

agency requests an administrative law judge

from the division, it shall so notify the

division within 15 days after receipt of the

petition or request. . . . .

* * *

(c) Unless otherwise provided by law, a

petition or request for hearing shall

include those items required by the uniform

rules adopted pursuant to s. 120.54(5)(b)4.

Upon the receipt of a petition or request

for hearing, the agency shall carefully

review the petition to determine if it

contains all of the required information. A

petition shall be dismissed if it is not in

substantial compliance with these

requirements or it has been untimely filed.

Dismissal of a petition shall, at least

once, be without prejudice to the

petitioner's filing a timely amended

petition curing the defect, unless it

conclusively appears from the face of the

petition that the defect cannot be cured.

The agency shall promptly give written

notice to all parties of the action taken on

the petition, shall state with particularity

its reason if the petition is not granted,

and shall state the deadline for filing an

amended petition if applicable.

(d) The agency may refer a petition to the

division for the assignment of an

administrative law judge only if the

petition is in substantial compliance with

the requirement of paragraph (c).

24. Section 120.60, Florida Statutes, states as follows in

relevant part:

120.60 Licensing.--

(1) Upon receipt of an application for a

license, an agency shall examine the

application and, within 30 days after such

receipt, notify the applicant of any

apparent errors or omissions and request any

additional information the agency is

permitted by law to require. An agency

shall not deny a license for failure to

correct an error or omission or to supply

additional information unless the agency

timely notified the applicant within this 30

day period. An application shall be

considered complete upon receipt of all

requested information and correction of any

error or omission for which the applicant

was timely notified or when the time for

such notification has expired. Every

application for a license shall be approved

or denied within 90 days after receipt of a

completed application unless a shorter

period of time for agency action is provided

by law. The 90-day time period shall be

tolled by the initiation of a proceeding

under ss. 120.569 and 120.57. An

application for a license must be approved

or denied within the 90-day or shorter time

period, within 15 days after the conclusion

of a public hearing hold on the application,

or within 45 days after a recommended order

is submitted to the agency and the parties,

whichever is later. The agency must approve

any application for a license or for an

examination required for licensure if the

agency has not approved or denied the

application within the time periods

prescribed by this subsection.

25. Section 493.6101, Florida Statutes, states as follows

in relevant part:

(16) "Private investigator" means any

individual who, for consideration,

advertises as providing or performs private

investigation. . . .

(17) "Private investigation" means the

investigation by a person or persons for the

purpose of obtaining information with

reference to any of the following matters:

(a) Crime or wrongs done or threatened

against the United States or any state or

territory of the United States, when

operating under express written authority of

the governmental official responsible for

authorizing such investigation.

(b) The identity, habits, conduct,

movements, whereabouts, affiliations,

associations, transactions, reputation, or

character of any society, person, or group

of persons.

(c) The credibility of witnesses or other

persons.

(d) The whereabouts of missing persons,

owners of abandoned property or escheated

property, or heirs to estates.

(e) The location or recovery of lost or

stolen property.

26. Section 493.6102, Florida Statutes, states as follows

in pertinent part:

493.6102 Inapplicability of parts I through

IV of this chapter.--This chapter shall not

apply to:

* * *

(6) Any attorney in the regular practice of

her or his profession.

Rule 1C-3.100(3)(c), Florida Administrative Code, which was not

challenged by Petitioner, states that "[t]he term 'attorney'

means a member of the Florida Bar engaged in the practice of law

in this state."

27. Section 493.6203(4), Florida Statutes, states as

follows in relevant part:

(4) An applicant for a Class "C" license

shall have 2 years of lawfully gained,

verifiable, full-time experience, or

training in one, or a combination of more

than one, of the following:

(a) Private investigative work or related

fields of work that provided equivalent

experience or training.

(b) College coursework related to criminal

justice, criminology, or law enforcement

administration, or successful completion of

any law enforcement-related training

received from any federal, state, county, or

municipal agency, except that no more than 1

year may be used from this category.

28. Section 493.6105, Florida Statutes, provides as

follows in pertinent part:

493.6105 Initial application for license.--

(1) Each individual, partner, or principal

officer in a corporation, shall file with

the department of a complete

application . . . .

* * *

(3) The application shall contain the

following information concerning the

individual signing same:

* * *

(j) A full set of fingerprints on a card

provided by the department and a fingerprint

fee to be established by rule of the

department based upon costs determined by

state and federal agency charges and

department processing costs. . . .

29. Section 493.6108, Florida Statutes, provides as

follows in relevant part:

493.6108 Investigation of applicants by

Department of State.--

(1) Except as otherwise provided, prior to

the issuance of a license under this

chapter, the department shall make an

investigation of the applicant for a

license. The investigation shall include:

(a)1. An examination of fingerprint records

and police records. When a criminal history

analysis of any applicant under this chapter

is performed by means of fingerprint card

identification, the time limitations

prescribed by s. 120.60(1) shall be tolled

during the time the applicant's fingerprint

card is under review by the Department of

Law Enforcement or the United States

Department of Justice, Federal Bureau of

Investigation.

Petitioner's Motion for Leave to Amend

30. Petitioner's amended hearing request refers to

Respondent's October 17, 2000, Order Denying Formal Hearing and

Referring to Informal Hearing. In this order, Respondent denied

Petitioner's request for a formal hearing pursuant to Section

120.57(1), Florida Statutes, relative to the denial of

Petitioner's private investigator license application, and

determined that Petitioner could only challenge the denial of

licensure in an informal proceeding under Section 120.57(2),

Florida Statutes.

31. The amended hearing request also adds a "Ninth Rule

Challenge," asserting that Respondent has no authority to

determine whether allegations in a request for a hearing

pursuant to Section 120.57(1), Florida Statutes, present

disputed issues of material fact or whether the issues raised by

a party should be heard as issues of law pursuant to Section

120.57(2), Florida Statutes.

32. Petitioner's Motion for Leave to Amend is denied for

two reasons. First, Respondent has jurisdiction to determine

whether a request for hearing presents disputed issues of

material fact, and if not, to offer the requesting party an

opportunity for an informal proceeding. Sections 120.569 and

120.57, Florida Statutes. An agency may retain jurisdiction and

proceed with an informal hearing, when the agency concludes that

no disputed material issues of fact have been demonstrated.

Village Salon, Inc. v. Division of Alcoholic Beverage and

Tobacco , 463 So. 2d 278 (Fla. 1st DCA 1984). Any alleged errors

from such a ruling, and any alleged errors in the conduct of

informal proceedings in lieu of a requested formal proceeding,

are matters that are subject to appeal following the issuance of

a final order in that proceeding. Nicolitz v. Division of

Opticianry , 609 So. 2d 92 (Fla. 1st DCA 1992). On the other

hand, the Division of Administrative Hearings has no

jurisdiction to require Respondent to refer cases for formal

hearing pursuant to Section 120.57(1), Florida Statutes.

33. Second, the additional facts presented and new issues

raised in Petitioner's amended hearing request are not

appropriate for resolution in a proceeding brought pursuant to

Sections 120.56(3) and 120.56(4), Florida Statutes.

Petitioner's argument that Respondent's October 17, 2000, order

constitutes a rule merely reflects Petitioner's disagreement

with Respondent's exercise of discretion under Sections 120.569

and 120.57, Florida Statutes. Petitioner is attempting to

present an improper legal argument on a procedural issue within

Respondent's jurisdiction.

Motion to Dismiss or for Summary Final Order

34. For purposes of the pending Motion to Dismiss Petition

or for Summary Final Order Dismissing Rule Challenge Petition,

all of Petitioner's factual allegations have been taken as true.

It conclusively appears from the face of the petition that the

defects in the petition cannot be cured.

35. Respondent's September 27, 2000, Order Dismissing

Petition with Leave to Amend pursuant to Rule 28-106.201,

Florida Administrative Code, is not a "rule" as defined in

Section 120.52(15), Florida Statutes. Sections 120.54(5)(a)1.,

120.54(5)(b)4., and 120.569(2)(c), Florida Statutes, required

Respondent to apply the procedural rule to determine whether

Petitioner's initial hearing requests contained all the required

information. Finding that the petitions were not in substantial

compliance with the rule, Respondent stated its reasons with

particularity and gave Petitioner a deadline for filing an

amended petition. See Section 120.569(2)(c), Florida Statutes.

36. Respondent's Order Dismissing Petition with Leave to

Amend essentially determined that Petitioner's initial hearing

requests presented only legal arguments involving matters of

statutory interpretation. As stated above, Petitioner's only

recourse to challenge this determination is by appeal from the

final order to be issued in the case pending before Respondent.

37. Respondent attached an agency opinion letter and an

interoffice memorandum to its September 27, 2000, Order

Dismissing Petition with Leave to Amend. Respondent did not

rely on these opinions in making its decision about Petitioner's

initial hearing requests. They were furnished to Petitioner as

a courtesy, illustrating Respondent's direct application of the

licensing criteria under Section 493.6203(4), Florida Statutes,

in response to other inquiries. Moreover, Section 120.52(15),

Florida Statutes, specifically exempts these documents from the

definition of a rule.

38. Respondent denied Petitioner's license application

based solely on his failure to meet the requirements of Section

493.6203(4), Florida Statutes. Respondent's interpretation of

that statute in this case simply followed the plain language of

the law. Respondent's interpretation of the statutory terms was

reasonable and not unduly restrictive. It did not create any

additional requirements or depart from the common understanding

of the terms used in the statute. An agency's interpretation of

the law that it is required to interpret and enforce is entitled

to great weight and deference. P.W. Ventures Inc. v. Nicols ,

533 So. 2d 281, 283 (Fla. 1988).

39. Section 493.6108(1), Florida Statutes, clearly states

that the 90-day time period for processing license applications

set forth in Section 120.60(1), Florida Statutes, is tolled

during the time fingerprint cards are being analyzed by law

enforcement agencies. Respondent did not create a rule by

interpreting these statutes to mean that the 90-day time period

for processing Petitioner's application was suspended or

temporarily stopped while his fingerprint card was being

analyzed. The agency is not required to accept Petitioner's

interpretation that the tolling provisions of Section

493.6109(1), Florida Statutes, do not apply if the fingerprint

card is received by Respondent within the 90-day time frame.

Consequently, there is no merit to Petitioner's first rule

challenge.

40. Opinion 92-4 is not an unpromulgated rule that defines

the "practice of law to exclude experience gained by lawyers in

the practice of their profession unless the lawyer proves he was

engaged in full-time investigative work." Additionally, Opinion

92-4 is not an unadopted rule that prevents an attorney from

receiving credit for "college coursework related to criminal

justice, criminology, or law enforcement administration."

Likewise, Opinion Letter 92-50 does not constitute a rule that

has not been adopted by concluding that "[a]n attorney who is

not licensed to practice law within the state . . . and who is

working as an investigator for various law firms is not exempt

from the licensure requirements for a private investigator under

Chapter 493, Florida Statutes." To the contrary, both opinions

specifically track the legislative intent of Sections

493.6102(6) and 493.6203(4), Florida Statutes, read in pari

materia , in concluding that an attorney is entitled, on a case-

by-case basis, to credit for verified full-time investigative

experience or for a combination of that full-time work and any

credible college coursework, but not entitled to credit for

experience in the practice of law as that term is commonly

understood or based solely on training as an attorney.

Accordingly, Petitioner's second, third and fifth rule

challenges are without merit.

41. Respondent has not created an unpromulgated rule by

interpreting the term "verifiable" in Section 493.6203(4),

Florida Statutes, as meaning capable of being verified by

speaking with persons provided by an applicant to obtain that

information. Instead, Respondent's statutory interpretation of

"verifiable" is consistent with the obvious legislative intent

for Respondent to confirm or substantiate the accuracy of any

sworn statement about an applicant's experience and training.

Therefore, Petitioner's sixth rule challenge is without merit.

42. Similarly, Respondent did not rely on an unadopted

rule in interpreting the term private investigation as defined

in Section 493.6101(17), Florida Statutes. Respondent does not

have a policy that excludes applicants who do not have law

enforcement experience unless they prove that they have full-

time experience in "investigative activity," which is the

equivalent of police experience.

43. Under Section 493.6203(4), Florida Statutes,

Respondent may evaluate an applicant's private investigative

work or related fields of work that provide equivalent

experience or training. Rule 1C-3.100(3)(3), Florida

Administrative Code, defines equivalent experience and

specifically states that equivalent experience includes, but is

not limited to, detectives, law enforcement officers, insurance

investigators or adjustors, etc. Petitioner withdrew his

challenge to this existing rule because he was not adversely

affected by it.

44. Respondent is not required to accept Petitioner's

interpretation of Sections 493.6101(17) and 493.6203(4), Florida

Statutes, as providing nothing more than a guide for the agency.

For these reasons, there is no merit to Petitioner's seventh

rule challenge.

45. Petitioner admits that he is an unlicensed attorney.

He also admits that he seeks a license as a private investigator

as defined in Section 493.6101(16), Florida Statutes, in order

to perform private investigations under Section 493.6101(17),

Florida Statutes, and to file claims for abandoned property

claimants under Chapter 717, Florida Statutes, Disposition of

Unclaimed Property.

46. Petitioner's hearing request does not show that

Respondent applied unpromulgated rules in denying his license

application. Rather, it shows that Petitioner does not agree

with Respondent's direct application of the law it is required

to enforce.

47. Respondent's Motion to Dismiss or for Summary Final

Order seeks attorney fees and cost under Sections 120.569(2)(e),

120.595(3), and 120.595(4), Florida Statutes. Section

120.595(3), Florida Statutes, no longer applies because

Petitioner withdrew his challenge under Section 120.56(3),

Florida Statutes. Section 120.595(4), Florida Statutes, does

not provide authority for an award of fees and cost where, as

here, the agency is the prevailing party in a challenge to

agency action pursuant to Section 120.56(4), Florida Statutes.

Finally, Respondent is not entitled to fees and costs under

Section 120.569, Florida Statutes, because Petitioner did not

file his hearing request for any "improper purposes, such as to

harass or to cause unnecessary delay, or for frivolous purpose

or needless increase in the cost of litigation."

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

That Petitioner's Request for Formal Administrative Hearing

is dismissed.

DONE AND ORDERED this 2nd day of November, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of November, 2000.

COPIES FURNISHED:

Philip J. Stoddard

288 St. George Street

St. Augustine, Florida 32084

H. Wayne Mitchell, Esquire

Department of State

Division of Licensing

The Capitol, Mail Station 4

Tallahassee, Florida 32399-0250

Deborah K. Kearney, General Counsel

Department of State

The Capitol, Lower Level 10

Tallahassee, Florida 32399-0250

Honorable Katherine Harris

Secretary of State

Department of State

The Capitol, Plaza Level 02

Tallahassee, Florida 32399-0250

Liz Cloud, Chief

Bureau of Administrative Code

The Elliott Building

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director

Joint Administrative Procedure Committee

120 Holland Building

Tallahassee, Florida 32399-1300

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.