06-000427RU Bennett B. Richardson vs. Department Of Management Services, Division Of Retirement Status: Closed DOAH Final Order on Tuesday, September 19, 2006.

Summary: The unwritten rule that imposes a 50-percent test for primary duties and responsibilities and the proposed rule that imposes a quantitative standard for the same purpose each contitutes an invalid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BENNETT B. RICHARDSON , )

)

Petitioner , )

)

vs. ) Case Nos. 06 - 0427RU

) 06 - 1920RP

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT , )

)

Respondent . )

)

FINAL ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

formal hearing in this proceeding on July 10, 2006, in

Tallahassee, Florida, on behalf of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For P etitioner: Denise J. Beleau, Esquire

Buckingham, Doolittle,

& Burroughs, LLP

5355 Town Center Road, Suite 900

Boca Raton, Florida 33486

For Respondent: Larry D. Scott, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUES

The issues in this proceeding are whether Petitioner has

standing to challenge an u nwritten rule and a proposed rule and,

if so, whether either rule is an invalid exercise of delegated

legislative authority within the meaning of Subsections

120.56(4) and 120.56(1), Florida Statutes (2005), respectively.

PRELIMINARY STATEMENT

This proc eeding began on February 3, 2006, when Petitioner

challenged an agency statement of eligibility in the Special

Risk Class of the Florida Retirement System. Respondent began

rulemaking proceedings, and the undersigned issued an order on

March 28, 2006, whi ch stayed the original rule challenge

pursuant to Sub s ection 120.56(4)(e)2 . , Florida Statutes (2005).

Respondent developed a proposed rule, and Petitioner

challenged the proposed rule on May 26, 2006. On June 7, 2006,

the undersigned rescinded the stay because the proposed rule

addressed an agency statement that was different from the agency

statement challenged as an unpromulgated rule. On June 19,

2006, the undersigned consolidated the challenge to the proposed

rule with the original rule challenge.

At the formal hearing, Petitioner presented the testimony

of five witnesses and submitted 28 exhibits for admission into

evidence. Respondent called one witness and submitted nine

exhibits for admission into evidence.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the one - volume Transcript of the

hearing filed with DOAH on July 26, 2006. The undersigned

granted Petitioner's unopposed request for extension of time in

which to file proposed final orders (PFOs). The parties timely

filed their respective PFOs on August 17, 2006.

FINDINGS OF FACT

1. Respondent is the state agency responsible for

administering the Florida Retirement System (FRS). From June 1,

1994, through the present (the uncontested period), P etitioner

has been employed by Martin County, Florida (Martin County), as

a firefighter and has been a member of the Special Risk Class of

the FRS pursuant to the firefighter criteria in Subsection

121.0515(2)(b), Florida Statutes (2005).

2. In 1999, the legislature added Subsection

121.0515(2)(d), Florida Statutes (1999), to include in the

Special Risk Class those employed as an emergency medical

technician (EMT) by a licensed Advance Life Support (ALS) or

Basic Life Support (BLS) employer. In 2000, the legislature

authorized those employed as an EMT by an ALS or BLS to upgrade

prior creditable service earned as an EMT. 1

3. Sometime in December 2004, Petitioner requested credit

for prior service with Martin County that Petitioner rendered as

a n "EMT/Ocean Lifeguard" from February 26, 1989, through May 31,

1994 (the contested period). In a Final Summary Order issued on

April 19, 2006, Bennett Richardson v. Division of Retirement ,

Case No. R - 04 - 03631 - MIA (hereinafter, " Richardson I ), Respondent

de nied the request on the ground that the identical issue had

been fully litigated on October 15, 2001, and a final order

denying the request was issued on January 3, 2002, in Beckett et

al . v. Division of Retirement , Case No. ROO - 67 - MIA (hereinafter,

" Becke tt "). The Final Summary Order issued in Richardson I is

currently on appeal to the Fourth District Court of Appeal. 2

4. On February 3, 2006, Petitioner filed a petition

challenging an agency statement by Respondent as a rule that had

not been adopted in accordance with rulemaking procedures in

violation of Subsections 120.54(1)(a) and 120.56(4), Florida

Statutes (2005) (unwritten rule). The agency statement emerged

during the deposition of an employee of Respondent on

January 20, 2006.

5. On March 28, 2 006, the undersigned stayed the challenge

to the unwritten rule because Respondent proceeded to rulemaking

pursuant to Subsection 120.56(4)(e), Florida Statutes (2005)

(the proposed rule). On May 26, 2006, Petitioner filed a

petition challenging the propo sed rule pursuant to

Subsection 120.56(2), Florida Statutes (2005).

6. On June 7, 2006, the undersigned rescinded the previous

stay on the ground that the proposed rule addresses a statement

that is different from the statement in the unwritten rule. T he

undersigned consolidated the two rule challenges on June 19,

2006.

7. Petitioner has standing in each of the rule challenges

in this proceeding. The interests of Petitioner during the

contested period are within the zone of interests the

legislature s eeks to protect.

8. Petitioner's interests during the contested period are

evidenced by organizational charts maintained by Petitioner's

employer. Respondent relies, in relevant part, on

organizational charts of employers to determine whether

applicant s for membership in the Special Risk Class satisfy

relevant statutory criteria.

9. From the beginning of the contested period through the

present, Petitioner has been employed by the Emergency Services

Department of Martin County. The Emergency Service s Department

includes the Fire Rescue Division, in which Petitioner was

employed during the uncontested period, as well as the Marine

Safety Division, in which Petitioner was employed during the

contested period. 3

10. Petitioner's interests during the c ontested period are

evidenced by his job title. Respondent relies, in relevant

part, on job titles in position descriptions to determine

whether applicants for membership in the Special Risk Class

satisfy relevant statutory requirements.

11. Petitioner' s job title during the contested period was

"EMT/Ocean Lifeguard." Prior to the contested period,

Petitioner's job title was limited to "Lifeguard." From the

beginning of the contested period through the present,

Petitioner has been employed by the Emerg ency Services

Department of Martin County as a certified EMT in compliance

with relevant criteria in Subsection 121.0515(2)(d), Florida

Statutes (2005). 4

12. Petitioner's interests during the contested period are

evidenced by the job description for t he job title Petitioner

held during the contested period. Respondent relies, in

relevant part, on job descriptions developed by employers to

determine whether applicants for membership in the Special Risk

Class satisfy relevant statutory criteria.

13. A major function of the job Petitioner performed

during the contested period was to provide:

[S]killed protection of the lives, health,

safety and welfare of the public by

providing pre - hospital emergency medical

care including injury and drowning

prevention on Martin County beaches.

Petitioner's Exhibit 7. The refusal to provide on - site

emergency medical care during the contested period was a ground

for disciplinary action against Petitioner. The job description

required physical strength and agility suff icient to perform

rescue and medical duties. Those job requirements fall within

the scope of legislative intent in Subsection 121.0515(1),

Florida Statutes (2005).

14. The agency's denial of membership in the Special Risk

Class affects the substantial interests of Petitioner by

limiting the annual retirement benefit calculator (multiplier)

to 1.6 percent annually. Membership in the Special Risk Class

during the contested period would increase the annual multiplier

to 3.0 percent.

15. The agency statem ent challenged as an unwritten rule

is evidenced in the deposition testimony obtained during

discovery in Richardson I and in a written memorandum issued by

Respondent. The agency states that the statutory provision in

Subsection 121.0515(2)(d), Florida S tatutes (2005), which

requires the primary duties and responsibilities of an EMT to

include on - the - scene emergency medical care, is not satisfied

unless 50 percent or more of the duties performed by an EMT are

on - the - scene emergency medical care (the 50 pe rcent rule).

16. The challenged agency statement is a rule within the

meaning of Subsection 120.52(15), Florida Statutes (2005). The

statement satisfies the requirement of "general applicability."

The agency applies the statement to determine whether an y

applicant satisfies the criteria in Subsection 121.0515(2)(d),

Florida Statutes (2005). Respondent has applied the statement

in all such applications through the date of the hearing.

17. The agency statement "implements, interprets, or

prescribes" the statutory criteria in Subsection 121.0515(2)(d),

Florida Statutes (2005), within the meaning of Subsection

120.52(8), Florida Statutes. The agency statement does not fall

within any exception prescribed in Subsection 120.52(8)(a) - (c),

Florida Statutes (20 05).

18. The agency statement was not adopted by rulemaking

procedures in violation of Subsection 120.54(1)(a), Florida

Statutes (2005). Respondent stipulated during the formal

hearing that the 50 percent rule was not addressed in the

proposed rule.

19. The proposed rule and the 50 percent rule are

substantially similar statements within the meaning of

Subsection 120.56(4)(e), Florida Statutes (2005). Both rules

establish a quantitative or numerical standard for determining

whether the primary dutie s and responsibilities of an EMT

include on - the - scene emergency medical care.

20. The proposed rule would add the following language to

Florida Administrative Code Rule 60S - 1.0059(2):

Whenever the term "primary duties and

responsibilities" is used in R ule

60S - 1.0051, 60S - 1.0052, 60S - 1.0053, or

60S - 1.00535, F.A.C., it means those duties

of a position that:

(a) Are essential and prevalent for the

position and are the basic reasons for the

existence of the position;

(b) Occupy a substantial portion o f the

member's working time; and

(c) Are assigned on a regular and recurring

basis.

Duties and responsibilities that are of an

emergency, incidental, or temporary nature

are not "primary duties and

responsibilities."

The law implemented by the proposed rule includes Section

120.0515, Florida Statutes (2005).

21. The requirements that on - the - scene emergency medical

care must be "prevalent" and "occupy a substantial portion of

the member's working time" are substantially similar statements

to the unwrit ten 50 percent rule. Both impose quantitative

standards to determine whether on - the - scene emergency medical

care is a primary duty or responsibility of an EMT.

22. Quantitative standards in the proposed rule and the

unwritten rule enlarge or modify the specific provisions of the

law implemented within the meaning of Subsections 120.52(8)(c)

and 120.57(1)(e)2.b., Florida Statutes (2005). The law

implemented adopts a qualitative standard for determining

whether on - the - scene emergency medical care is a pr imary duty or

responsibility of an EMT.

23. The plain and ordinary meaning of the term "primary"

requires on - the - scene emergency medical care to be the

"principal" duty or responsibility; or the "first or highest in

rank, quality, or importance." The A merican Heritage Dictionary

of the English Language , at 1393 (4th ed. 2000; Houghton Mifflin

Company). On - the - scene emergency medical care was a principal

duty of first importance that Petitioner was required to perform

during the contested period, irresp ective of whether he

performed those duties 50 percent of his workday; irrespective

of whether those duties were "prevalent" each day; and

irrespective of whether on - the - scene emergency medical care

occupied a "substantial portion of the member's working t ime"

each day.

24. The record discloses no evidentiary basis for

deference to agency expertise that would justify a departure

from the plain and ordinary meaning of the term "primary."

Rather, the record shows that Respondent effectively grafted

onto t he proposed rule quantitative standards in federal

regulations applicable to certain federal employees as a means

of defining and implementing the term "primary duties" in the

state law criteria prescribed in Subsection 121.0515(2)(d),

Florida Statutes (20 05). 5

25. The legislature adopted a quantitative standard for

determining membership in the Special Risk Class in Subsection

121.0515(2)(f), Florida Statutes (2005). In relevant part, the

legislature required anyone seeking membership under that

provisi on to "spend at least 75 percent of his or her time"

performing qualifying duties.

26. The legislature could have adopted a similar

quantitative standard in Subsection 121.0515(2)(d), Florida

Statutes (2005), but did not do so. The quantitative provisi ons

in the proposed rule and unwritten 50 percent rule would

effectively amend or modify the relevant statutory criteria in

Subsection 121.0515(2)(d), Florida Statutes (2005), by imposing

a quantitative standard similar to that in Subsection

121.0515(2)(f) , Florida Statutes.

27. The proposed rule excludes emergency services from the

definition of "primary duties and responsibilities." That

exclusion modifies or contravenes the statutory requirement that

primary duties and responsibilities of an EMT must include

"emergency" medical care.

CONCLUSIONS OF LAW

28. DOAH has jurisdiction over the parties and the subject

matter in this proceeding. §§ 120.54(1)(a), 120.56(2), and

120.56(4), Fla. Stat. (2005). DOAH provided the parties with

adequate notice of the formal hearing.

29. Standing has been equated with subject matter

jurisdiction. Grand Dunes, Ltd. v. Walton County , 714 So. 2d

473, 475 (Fla. 1st DCA 1998). Petitioner established that the

proposed change to the existing rule would cause him to su ffer

an "injury in fact" and that the interest he seeks to protect is

within the "zone of interest" sought to be protected by the

statutory provisions to be implemented by the proposed change.

All Risk Corporation of Florida v. State, Department of Labor

and Employment Security , 413 So. 2d 1200, 1202 (Fla. 1st DCA

1982). See also Agrico Chemical Co. v. Department of

Environmental Regulation , 406 So. 2d 478, 482 (Fla. 2d DCA

1981); F lorida Department of Offender Rehabilitation v. Jerry ,

353 So. 2d 1230 (Fl a. 1st DCA 1978).

30. The 50 percent standard in the unwritten rule, the

quantitative standards in the proposed rule discussed in the

Findings of Fact, and the exclusion of emergency services in the

proposed rule constitute an invalid exercise of delegate d

legislative authority. Each enlarges, modifies, or contravenes

the specific provisions of the law in Subsection 121.0515(2)(d),

Florida Statutes.

31. Respondent is authorized to adopt only those 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. . . .

§ 120.52(8), Fla. Stat. (2005).

32. Respondent is an agency of the executive branch of

government and is constitutionally prohibited from exercising

powers reserved to the legislative branch of state government.

Art. II, § 3, Fla. Const. Nor may the legislature delegate

legislative powers to an agency of t he executive branch.

Rather, the legislature must provide statutory standards and

guidelines in an enactment that are ascertainable by reference

to the terms of the enactment. Bush v. Shiavo , 885 So. 2d 321

(Fla. 2004); B.H. v. State , 645 So. 2d 987, 992 - 994 (Fla. 1994);

Askew v. Cross Key Waterways , 372 So. 2d 913, 925 (Fla. 1978).

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that quantitative criteria in the unwritten

50 percent rule and the proposed rule, identi fied in the

Findings of Fact, constitute an invalid exercise of delegated

legislative authority within the meaning of Subsections

120.52(8)(c) and 120.57(1)(e)2.b., Florida Statutes (2005).

DONE AND ORDERED this 19th day of September , 2006 , in

Tallahasse e, Leon County, Florida.

S

DANIEL MANRY

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of September , 2006 .

ENDNOTES

1/ The legislative history is at Ch. 99 - 392, § 23, Laws of

Fla.; Chs. 2000 - 161, § 4, 2000 - 169, § 6, and 2000 - 347, § 4, Laws

of Fla.

2/ The scope of this proceeding does not reach the merits of

the issues addressed in Richardson I and Beckett but is limited

to the validity of the unwritten rule and the proposed rule.

3/ Neither the agency statement challeng ed as an unwritten rule

nor the proposed rule determine that the Emergency Services

Department of Martin County was not an ALS or BLS within the

meaning of § 121.0515(2)(d), Fla. Stat. (2005), and that

requirement is not at issue in this proceeding.

4/ T he disjunctive requirement for employment as either a

certified EMT or paramedic has remained unchanged from the time

the statute was first enacted in 1999.

5/ In relevant part, the federal regulations provide:

"Primary duties" are those duties of a

po sition that --

1. Are paramount in influence or weight;

that is, constitute the basic reasons for

the existence of the position;

2. Occupy a substantial portion of the

individual's working time over a typical

work cycle; and

3. Are assigned on a regu lar and recurring

basis.

Duties that are of an emergency, incidental,

or temporary nature cannot be considered

"primary" even if they meet the substantial

portion of time criterion.

In general, if an employee spends an average

of at least 50 percent of h is or her time

performing a duty or group of duties, they

are deemed to be his or her primary duties,

without the need for further evidence or

support.

Respondent's Exhibit 17.

COPIES FURNISHED :

Denise J. Bleau, Esquire

Buckingham, Doolittle & Burrough s, LLP

5355 Town Center Road, Suite 900

Boca Raton, Florida 33486

Larry D. Scott, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

Daniel P. Fernandez, Esquire

Fernandez Law Offices

14502 North Dal e Mabry Highway, Suite 200

Tampa, Florida 33618

Steven Ferst, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

Post O ffice Box 9000

Tallahassee, Florida 32315 - 9000

Scott Boyd, Executive Director

and General Counsel

Joint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399 - 1300

Liz Cloud, Program Administrator

Administrative Code

De partment of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

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 pr oceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed b y 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.