00-000364RP Bink F. Williams vs. Department Of Health Status: Closed DOAH Final Order on Wednesday, April 19, 2000.

Summary: Department of Health has the authority to adopt a rule requiring that body piercers wear sterile gloves.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BINK F. WILLIAMS, )

)

Petitioner, )

)

vs. ) Case No. 00-0364RP

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

__________________________________)

FINAL ORDER

Pursuant to notice, a final hearing was held in this case

on March 20, 2000, at Tallahassee, Florida, before Claude B.

Arrington, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bink F. Williams, pro se

5163 Velda Dairy Road

Tallahassee, Florida 32308

For Respondent: Richard P. McNelis, Esquire

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

Whether Respondent exceeded its statutory authority by

requiring use of disposable sterile medical gloves during body-

piercing procedures. 1/ The rule at issue is Rule 64E-

19.006(2), Florida Administrative Code.

PRELIMINARY STATEMENT

Prior to the beginning of the final hearing, the parties

stipulated to certain facts, which have been adopted by the

undersigned in the findings of fact portion of this Final Order.

Some of those stipulated facts have been adopted verbatim while

others have been reworded.

Petitioner argued his position in this matter and cross-

examined the witnesses called by Respondent, but he did not

testify or present any exhibits.

Respondent called as witnesses Leslie Harris and Dr. Landis

Crockett, both of whom are employed by Respondent. Mr. Harris

coordinated the drafting of the rule at issue in this

proceeding. Dr. Crockett is a medical doctor who was allowed to

express opinions within the scope of his expertise. Respondent

offered five exhibits, each of which was admitted into evidence.

Petitioner stipulated to the admissibility of each of these

exhibits.

No transcript of the proceedings has been filed.

Respondent filed a Proposed Final Order, which has been duly-

considered by the undersigned in the preparation of this Final

Order. Petitioner did not file a post-hearing submittal.

FINDINGS OF FACT

1. Chapter 99-176, Laws of Florida, created Section

381.0075, Florida Statutes, to regulate body-piercing. Section

381.0075(1), Florida Statutes, provides as follows:

(1) Legislative intent.--It is the

intent of the Legislature to protect the

health, safety, and welfare of the public

from the spread of infectious diseases from

practices that prick, pierce, or scar the

skin and therefore, to that end, to regulate

body-piercing salons.

2. Respondent is the agency of the State of Florida

charged with licensing and regulating body-piercing pursuant to

Section 381.0075, Florida Statutes.

3. Section 381.0075(2), Florida Statutes, provides certain

definitions, including the following:

(j) "Sanitization" means the effective

bactericidal treatment of surfaces of

equipment and devices by a product

registered by the United States

Environmental Protection Agency which

provides a sufficient concentration of

chemicals and enough time to reduce the

bacterial count, including pathogens, to a

safe level.

(k) "Sterilization" means the use of

procedures that destroy all microbial life,

including viruses, on the equipment or

device. . . .

4. Section 381.0075(11), Florida Statutes, sets forth

requirements for the operation of body-piercing salons,

including the following:

(11) Body-piercing salons; specific

requirements.--

(a) A body-piercing salon must:

1. Properly sterilize all instruments

that pierce the skin, directly aid in

piercing the skin, or may come in contact

with instruments that pierce the skin,

through such means as storage in trays with

other instruments or contact with forceps,

in accordance with the sterilization

procedures in this section.

2. Sanitize all equipment indirectly

used in body piercing, including any beds,

tables, headrests, armrests, legrests, or

handrails.

3. Use protective infection barriers

such as gloves and masks when serving a

customer. If the protective barriers are

contaminated, they must be properly disposed

of immediately. Protective barriers may

only be used once and only for one customer.

4. To the degree possible, thoroughly

cleanse the area to be pierced with an

antiseptic solution before and after the

piercing. . . .

5. Section 381.0075(10), Florida Statutes, authorizes

Respondent to enact rules, in pertinent part, as follows:

(10) Rules.--The department has

authority to adopt rules to implement this

section. Such rules may include sanitation

practices, sterilization requirements and

procedures. . . .

6. In reliance on the specific authority provided by

Section 381.0075(10), Florida Statutes, Respondent engaged in

rulemaking activities consistent with Chapter 120, Florida

Statutes, and prepared proposed Rule 64E-19, Florida

Administrative Code. This rule was filed with the Department of

State on January 4, 2000, and became effective on January 24,

2000.

7. On January 24, 2000, the Department received the

instant Petition challenging Rule 64E-19.006(2), Florida

Administrative Code. The only portion of the subject rule

challenged by Petitioner requires body-piercers to wear

disposable sterile medical gloves when performing body-piercing

procedures. Petitioner does not challenge the requirement that

body-piercers use disposable medical gloves, but he does

challenge the requirement in the rule that the gloves be

"sterile."

8. The parties stipulated that disposable sterile medical

gloves are significantly more expensive than non-sterile

disposable medical exam gloves. It is common practice among

body-piercers to use several pairs of gloves during the course

of a single body-piercing procedure.

9. Section 381.0075, Florida Statutes, does not explicitly

require that a body-piercer use sterile gloves when performing

body-piercing procedures.

10. Rule 64E-19.006(1), Florida Administrative Code,

requires that body-piercers use aseptic techniques and sterile

instruments.

11. The purpose of medical exam gloves is to protect the

wearer, whereas the purpose of sterile medical gloves is to

protect the patient. Medical exam gloves are typically left in

an open box, which exposes those gloves to airborne

contamination.

12. Gloves are likely to come in contact with either

sterile instruments or the piercing site, as contemplated by

Section 381.0075(11)(a)1., Florida Statutes. When compared to

non-sterile medical exam gloves, sterile gloves provide better

protection against the risk of infection to the person whose

body is being pierced.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

14. Section 120.52(8), Florida Statutes, defines the term

invalid exercise of delegated legislative authority as follows:

(8) "Invalid exercise of delegated

legislative authority" means action 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.

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 or interpret

the specific 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 or is within the agency's

class of powers and duties, 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 implementing or

interpreting the specific powers and duties

conferred by the same statute.

15. The Legislative intent in enacting Section 381.0075,

Florida Statutes, was clearly expressed in Section 381.0075(1),

Florida Statutes.

16. The grant of rulemaking authority was also clearly

expressed by the Legislature. Section 381.0075(10), Florida

Statutes, clearly authorizes Respondent to enact rules setting

sanitation practices and sterilization requirements and

procedures. That is sufficient authority for Respondent to

adopt the challenged rule.

17. Sterile gloves provide better protection to the

patient, which is consistent with the express legislative intent

to protect the health, safety, and welfare of the public from

the spread of infectious diseases during body-piercing

procedures.

ORDER

Based upon the foregoing Findings of Fact and Conclusions

of Law it is ORDERED that subject challenge to Rule 64E-19,

Florida Administrative Code, is DENIED.

DONE AND ORDERED this 19th day of April, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850 ) 488-9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of Ap ril, 2000.

ENDNOTE

1/ This phrasing of the issue is based on a stipulation of the

parties. The rule is not being challenged on any other basis.

COPIES FURNISHED:

Bink F. Williams

5163 Velda Dairy Road

Tallahassee, Florida 32308

Richard P. McNelis, Esquire

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

William Large, General Counsel

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

Liz Cloud, Chief

Bureau of Administrative Code

The Elliott Building

Tallahassee, Florida 32399-0250

Carroll Webb

Executive Director and General Counsel

Joint Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 a 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.