06-000597RU Florida Surety Agents Association, Inc. vs. Department Of Financial Services Status: Closed DOAH Final Order on Wednesday, April 19, 2006.

Summary: Petitioner did not prove that Respondent has policies to approve bail bond agent continuing education courses without a supervising instructor or a monitored examination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA SURETY AGENTS )

ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) Case No. 06 - 0597RU

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent, )

)

and )

)

ATHENA SOLUTIONS, LLC, )

)

Intervenor. )

)

FINAL ORDER

This cause came on for final hearing on March 6, 2006, in

Tallahassee, Florida, before Suzanne F. Hood, Administrative Law

Judge with the Division of Administrative Hearings.

APPE ARANCES

For Petitioner: Harold F. X. Purnell, Esquire

Rutledge, Ecenia, Purnell &

Hoffman, P.A.

Post Office Box 551

Tallahassee, Florida 32302 - 0551

For Responde nt: R. Terry Butler, Esquire

Department of Financial Services

200 East Gaines Street

Room 612, Larson Building

Tallahassee, Florida 32399

For Intervenor: D. Andrew Byrne, Esquire

Cooper & Byrne

3520 Thomasville Road

Tallahassee, Florida 32309

STATEMENT OF THE ISSUE

The issue is whether Respondent has a policy regarding the

approval of on - lin e continuing education courses for bail bond

agents, which are rules as defined in Section 120.52(15),

Florida Statutes, and which have not been promulgated as

required by Section 120.54(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

On February 15, 2006, Petitioner Florida Surety Agents

Association, Inc. (Petitioner) filed a Petition Challenging

Agency Statement Defined as a Rule. Petitioner alleged that

Respondent Department of Financial Services (Respondent) had

violated Section 120.54(1)(a), Florida S tatutes, by approving a

continuing education school that provides bail bond agents with

on - line courses, which do not have a supervising instructor or a

monitored exam.

On February 17, 2006, the undersigned issued a Notice of

Hearing, scheduling the hea ring for March 6, 2006.

On February 24, 2006, Respondent filed a Motion to Dismiss

for Lack of Evidence. On March 2, 2006, Petitioner filed an

Amended Response to Motion to Dismiss. The motion was denied on

the record during the hearing.

On March 3 , 2006, Intervenor Athena Solutions, LLC

(Athena), filed a Petition for Leave to Intervene and Motion for

Continuance. On March 6, 2006, the undersigned issued an Order

Granting Intervenor Status and Denying Motion to Continue.

On March 5, 2006, Respon dent filed a Motion to Dismiss for

Lack of Standing. The motion was denied on the record during

the hearing.

When the hearing commenced, Petitioner did not present the

testimony of any live witnesses. Petitioner offered 13

exhibits, P - A through P - M, whi ch were accepted as evidence.

Petitioner's Exhibit P - K was Hazel C. Muhammad's deposition in

lieu of live testimony at hearing. Petitioner's Exhibit P - L was

Dave Valentine's deposition in lieu of live testimony at

hearing.

Respondent presented the tes timony of one witness, Melissa

Villella. Respondent offered four exhibits, R - 1 through R - 4,

which were admitted into the record as evidence.

Athena did not present any witnesses or offer any exhibits

for admission into evidence.

The court reporter fil ed the hearing Transcript on

March 24, 2006.

The Petitioner filed its Proposed Final Order on April 3,

2006. Respondent and Intervenor filed a Joint Proposed Final

Order on April 4, 2006.

All citations hereinafter shall refer to Florida Statutes

(2005 ) unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner is a non - profit corporation that represents

the interest of bail bond agents within the State of Florida.

Petitioner is also a provider of continuing education courses

for bail bond agents. P etitioner's courses are classes with

supervising instructors, who ensure the quality of the course

material and who verify the identity of students at least two

times during each class. Petitioner's classes do not require an

examination.

2. Petitioner 's primary purpose is to advocate and

promote, on behalf of its members, the professionalism of bail

bond agents by improving, maintaining, and advancing the

standards for bail bond agents, including licensing and

educational requirements. Among the requi rements for licensure

renewal, bail bond agents must complete a minimum of 14 hours of

continuing education courses every two years. Therefore,

Petitioner has standing to bring this proceeding.

3. Respondent is a state agency with the duty and

respons ibility to regulate bail bond agents pursuant to Chapter

648, Florida Statutes, and related administrative rules.

Respondent must approve all continuing education course

providers and continuing education courses for bail bond agents.

4. On May 10, 20 05, Respondent approved Athena, as an on -

line provider of continuing education courses for bail bond

agents.

5. On May 10, 2005, Respondent approved Athena's

application for Melissa H. Villella to serve as the school

official.

6. On July 14 or 15, 2 005, Respondent approved the

following on - line courses provided by Athena: Bail Bond Rules

and Regs Refresher Course, Part I; Bail Bond Rules and Regs

Refresher Course, Part II; Bail Bond Ethics; The New Castle

Doctrine Laws; and Concealed Carry Rights an d Responsibilities.

The five applications for these courses did not refer to a

supervising instructor or a monitored examination.

7. The On - Line Training Course Checklist for each course

states as follows in relevant part:

Provider: Athena Solution s, LLC d/b/a

OnDemandCE

* * *

2. Information pertaining to subject:

a. On - Line Access Instructions: Go to:

http://ondemandce.coursehost.com/

* * *

c. Sample Exams: All exam questions are

provided in the text copy . . . of the

course. Two banks o f questions are provided

for each of the four quarterly exams. A

total of 50 questions are provided, 25 per

bank. However, the OnDemandCE learning

system ramdomizes all quizzes, including

question order and answer order, so that no

two quizzes are ever t he same. An unlimited

number of quizzes will be generated from the

questions written in this course.

* * *

g. Student Identity, Assessment and

Control:

When students enter the OnDemandCE learning

system, a login form must be filled out in

order to ent er any course. The system will

require the agent to provide his or her bail

license number, full name, address, email

address, and phone number. In addition,

each student must agree to the following

Terms of Use to enter the course:

"By accepting these terms of service, you

acknowledge your understanding that you must

complete this entire course and achieve a

passing grade of 70% or greater in order to

receive the defined credit hours. You also

agree to read the entire contents of this

course, including all corresponding laws and

rules. No partial credit will be given for

this course.

Throughout this course, you will be tested

for comprehension of course material through

graded quizzes. By accepting these terms of

service, you acknowledge your underst anding

that the on - line course testing must be

completed unassisted by any person, the

course material or other materials. You

also acknowledge understanding that

violation of the above said rule shall

result in the loss of course credit and

administrativ e sanction by the Florida

Department of Financial Services.

Upon completion of this course with a

passing grade of 70% or better and confirmed

payment of all applicable course fees, the

system administrator will submit earned

credit hours to the Departmen t of Financial

Services Agent Education Database within 30

days. You may verify your credit hours at:

https://dice.fldfs.com/public/pb index.asp

By accessing any information beyond this

page, you agree to these Terms of Use in

full."

Once the student in formation is submitted

and the terms of use are accepted, the

OnDemandCE learning system issues the

student a temporary license to take the

course. The temporary licensee is tracked

by the OnDemandCE learning system throughout

the entire course.

Studen ts have unlimited access to the course

during the temporary license term, but must

login each time to re - establish student

identity. The OnDemandCE learning system

will not allow students to advance to the

lesson assessment or to the next lesson

until the student has completed the current

lesson material.

Finally, the OnDemandCE learning system will

verify that the student has completed each

lesson assessment and achieved a passing

grade of 70% or greater before issuing a

certificate of completion. The course

administrator will review and evaluate each

student's course progress and test results

before his or her credit is submitted to the

DFS Education System.

3. Procedures for Marketing Course

a. Student identity is assessed and

controlled upon r egistration and throughout

the duration of the course. See explanation

under 2(g).

b. To respond to questions regarding course

requirements and materials, students will be

provided access to the School Official on a

ratio of 30:1. Through the OnDemandC E

learning system, course enrollment will be

limited to 30 students to ensure that the

instructor/student ratio is not exceeded.

c. Student progress is assessed through

quarterly quizzes. Upon completion of each

quiz, the OnDemandCE learning system will

notify the student of their score. Students

must score at least 70% in order to pass the

course and receive a certificate of

completion.

d. On - line testing: See 2(g), and student

acknowledgement: See 3(c).

8. The syllabus for each of Athena's on - l ine courses

includes the following statements in pertinent part:

Student Responsibilities

Students must complete this entire course

and achieve a passing grade of 70% or

greater on internal tests in order to

receive credit hours. Students must read

the e ntire contents of this course,

including corresponding laws. Throughout

this course, students will be tested for

comprehension of course material through

graded quizzes.

Students are required to acknowledge their

understanding that the on - line course

tes ting must be completed unassisted by any

person, the course material or other

materials. Each student must also

acknowledge understanding that a violation

of such standards shall result in the loss

of course credit and administrative sanction

by the Flori da Department of Financial

Services.

* * *

On - line Assistance

Course assistance is available to each

student registered and active in this

course. The course administrator may be

contacted through email available from the

On - Demand CE system and will receive

assistance during regular business hours.

Messages received after regular business

hours will be returned the following day.

Live customer service can be reached at

(850) 906 - 9111.

9. Neither the On - Line Training Course Checklist nor the

syll abus for any of Athena's courses refers to a supervising

instructor, a monitor, a monitor group, or a monitored

examination. The On - line Training Course Checklist states that

students have access to a school official for course assistance.

The On - line Tr aining Course Checklist refers to a system or

course administrator who will evaluate tests and report the

results to Respondent. The syllabus for each course states that

students have on - line access to the course administrator for

course assistance.

10. On July 25, 2005, Ms. Villella sent Respondent a

memorandum by e - mail. The purpose stated was to reassure

Respondent that Athena's on - line system was "a fully monitored

system." The letter explained that the "system monitors each

student's progress thr ough the course and through all exams."

Additionally, the letter asserts that Ms. Villella monitors "the

integrity of the OnDemandCE system to ensure that the

application remains stable, secure, and operational." Finally,

the letter states that "no other interactive on - line provider is

required to send their students outside of their on - line system

for testing, nor are bail agents required to take any quiz in a

classroom course."

11. On July 26, 2005, Ms. Villella sent Respondent a

memorandum by e - mai l. The memorandum refers to administrative

rules that Ms. Villella asserts support her position that the

on - line internal testing of an interactive on - line self - study

course is equal to a monitored exam.

12. Lisa Miller, Respondent's Chief of Staff, w rote a

letter dated September 7, 2005, to Janet Collins, president of

the Bail Agents Independent League of Florida. The letter

stated that Florida Administrative Code Rule 69B - 228.080 formed

the legal basis for approving on - line continuing education

cour ses for bail bond agents. Ms. Miller also indicated that

Ms. Villella was Athena's school official and not its

instructor. The September 7, 2005, letter does not contain any

reference to a supervisory instructor or monitored exams.

13. On January 9, 2006, Ms. Villella sent Respondent a

memorandum by e - mail. The memorandum cites to administrative

rules that, according to Ms. Villella, authorize the on - line

internal testing of an interactive on - line self - study course as

the equivalent of a monitored ex am.

14. In a letter to Petitioner's counsel dated January 10,

2006, Respondent's Chief of the Bureau of Licensing, Hazel

Muhammad, responded to a request for public records regarding

the name of an approved supervising instructor for Athena. The

lette r did not state that Athena was not required to have an

approved supervising instructor. Instead, the January 10, 2006,

letter stated that Respondent's records did not contain the name

of an approved supervising instructor for Athena's on - line

courses. A t that time, Athena had withdrawn an initial

application for a supervising instructor with the intent to file

another such application.

15. The January 10, 2006, letter from Ms. Muhammad stated

that Respondent did "not have any public records for monit ored

examinations for bail bond continuing education courses." The

letter did not state that such courses do not require a

monitored exam.

16. On January 25, 2006, Respondent approved the

application of Warren Eugene Stewart as the supervising

instruc tor for Athena's on - line continuing education courses.

17. Ms. Villella is the owner and operator of Athena. She

developed the course material that is contained in the on - line

courses. Prior to forming Athena in 2005, Ms. Villella worked

for Petitioner for over six years. During her employment with

Petitioner, Ms. Villella assisted in the development of

continuing education courses and coordinated the presentation of

the courses throughout the State of Florida.

18. Athena's on - line courses use the Learning Management

System. The system is offered through a vendor known as Mind

Flash.

19. When students go on - line to study the course material

or to take a quiz, Ms. Villella is able to observe the amount of

time spent on each page of content materi al and/or each test.

She is able to determine how the students answer the questions

on the tests. Ms. Villella stays in contact with students

through e - mail. She verifies that the students successfully

complete the course and advises Respondent of their passing

grades.

20. There is no documentation showing that Respondent has

approved Ms. Villella as a monitor or part of a monitor group

for Athena's on - line examinations. Ms. Villella believes that

she has Respondent's tacit approval as a monitor bas ed on her

communications with Respondent's staff regarding Athena's on -

line internal testing process.

21. A course provider of an interactive on - line course

with on - line internal testing, to include Athena, cannot confirm

the identity of the person tak ing an on - line examination. The

provider must except the student's on - line acknowledgement that

he or she is not being assisted by another person or using a

textbook or other material to answer test questions.

22. Athena's supervising instructor only becomes involved

if a student has a content question that Ms. Villella cannot

answer. The supervising instructor acts as a consultant with

expertise in content areas.

23. As of the date of the hearing, at least 51 bail bond

agents had received credit f or taking Athena's continuing

education courses.

24. On February 28, 2006, Petitioner took the deposition

of Hazel Muhammad, Respondent's Bureau Chief of Licensing. Her

deposition was accepted as deposition testimony in lieu of live

testimony at the he aring. The deposition, as a whole, creates

the impression that the witness was being interrogated to

establish her understanding of the rules related to supervising

instructors and monitored examinations for bail bond agent

continuing education courses. The deposition by its terms did

not elucidate preexisting agency policies on these topics, which

were not already established by statute or adopted rule.

25. When questioned about specific rules, Ms. Muhammad

stated that that a supervising instructor co uld monitor an on -

line continuing education course. According to Ms. Muhammad,

the rules allow Respondent to determine whether an on - line

course is monitored based on an applicant's outline that

describes the on - line monitoring process, including the

moni toring of the on - line tests. Ms. Muhammad would not agree

that the rules necessarily distinguish between a monitored

examination and an on - line examination depending on the physical

presence or absence of a monitor.

26. When questioned about Athena's a pplication,

Ms. Muhammad testified that Athena's on - line courses, as

initially approved by Respondent, did not reflect supervising

instructors. She also testified that the on - line checklists for

Athena's courses did not refer to monitored or unmonitored

e xaminations. Applying the rules as she interpreted them,

Ms. Muhammed concluded that Athena's courses met the

requirements for internal on - line testing and monitored

examinations.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

juris diction over the parties and subject matter of this

proceeding pursuant to Section 120.56(4), Florida Statutes,

which states as follows in relevant part:

(4) CHALLENGING AGENCY STATEMENTS

DEFINED AS RULES; SPECIAL PROVISIONS. --

(a) Any perso n 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.

(b) . . . If a hearing is held and the

petitioner proves the allegation s of the

petition, the agency shall have the burden

of proving that rulemaking is not feasible

and practicable under s. 120.54(1)(a).

28. Section 120.52(15), Florida Statutes, states as

follows:

(15) "Rule" means each agency statement of

general app licability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements 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. . . .

29. Section 120.54(1)(a), Florida Statutes, provides as

follows in relevant part:

(1) GENERAL PROVISION APPLICABLE TO ALL

RULES OTHER THAN EMERGENCY RULES. --

(a) Rule making is not a matter of agency

discretion. Each agency statement defined

as a rule by s. 120.52 shall be adopted by

the rulemaking procedure provided by this

section as soon as feasible and practicable.

30. Petitioner has standing to bring this pro ceeding. See

NAACP, Inc. v. Florida Board of Regents , 863 So. 2d 294 (Fla.

2004); Coalition of Mental Health Professions v. Department of

Professional Regulation , 546 So. 2d 27 (Fla. 1st DCA 1989);

Florida Home Builders Association v. Department of Labor and

Employment Security , 412 So. 2d 351 (Fla. 1982).

31. To understand the significance of the petition in this

case, resort is made to certain statutory provisions and rules

that deal with the subject. The first statute is Section

648.385, Florida St atutes, which states as follows in pertinent

part:

648.385 Continuing education required;

application; exceptions; requirements,

penalties. --

(1) The purpose of this section is to

establish requirements and standards for

continuing education co urses for persons

authorized to write bail bonds in this

state.

(2)(a) Each person subject to the

provisions of this chapter must complete a

minimum of 14 hours of continuing education

courses every 2 years in courses approved by

the department. . . .

* * *

(3)(a) Any bail - related course

developed or sponsored by any authorized

insurer or recognized bail bond agents'

association, or any independent study

program of instruction, subject to approval

by the department, qualifies for the

equivalen cy of the number of classroom hours

assigned to such course by the department.

However, unless otherwise provided in this

section, continuing education credit may not

be credited toward meeting the requirements

of this section unless the course is

provide d by classroom instruction or results

in a monitored examination.

32. Section 648.386, Florida Statutes, provides as follows

in relevant part:

(2) SCHOOLS AND CURRICULUM FOR

CONTINUING EDUCATION SCHOOLS. -- In order to

be considered for approval and c ertification

as an approved limited surety agent and

professional bail bond agent continuing

education school, such entity must:

(a) Provide a minimum of three

continuing education classes per calendar

year.

(b) Submit a course curriculum to th e

department for approval.

(c) Offer continuing education classes

which are comprised of a minimum of 2 hours

of approved coursework and are taught by an

approved supervising instructor or guest

lecturer approved by the entity or the

supervising inst ructor.

* * *

(4) INSTRUCTOR'S DUTIES AND

QUALIFICATIONS. --

(a) Each course must have a

supervising instructor who is approved by

the department. The supervising instructor

shall be present at all classes. The

supervising instructor is re sponsible for:

1. All course instructors.

2. All guest lecturers.

3. The course outlines and curriculum.

4. Certification of each attending

limited surety agent or professional bail

bond agent.

5. Completion of all required fo rms.

6. Assuring that the course is

approved.

Either the entity or the supervising

instructor may approve guest lecturers.

(b) In order to obtain department

approval as a supervising instructor, the

following qualification must be met:

1. During the past 15 years, the

person must have had at least 10 years'

experience as a manager or officer of a

managing general agent in this state as

prescribed in s. 648.388;

2. During the past 15 years, the

person must have had at least 10 years'

experience as a manager or officer of an

insurance company authorized to and actively

engaged in underwriting bail in this state,

provided there is a showing that the

manager's or officer's experience is

directly related to the bail bond industry;

or

3. The person has been a licensed bail

bond agent in this state for at least 10

years.

* * *

(c) In order to obtain department

approval as an instructor or guest lecturer,

the person must be qualified by education or

experience in the specific ar ea of

instruction as prescribed by department

rules.

* * *

(e) The department shall adopt rules

necessary to carry out the duties conferred

upon it under this section.

33. Florida Administrative Code Rule 69B - 228.010 states as

follows:

69B - 228.010 Purpose. The purpose of

this rule chapter is to establish

requirements and standards for continuing

education courses and records for persons:

(1) Licensed to solicit or sell

insurance or act as limited surety or bail

bond agents in t his state;

(2) Licensed to adjust insurance

claims in this state; and

(3) Authorized to offer or teach

related coursework in this state.

34. Florida Administrative Code Rule 69B - 228.020 states as

follows:

69B - 228.020 Scope.

(1) T his rule chapter shall apply to:

(a) All types and classes of agent and

customer representative licenses for which

an examination for licensure is required

before consideration of any examination

exception;

(b) All licensed adjusters;

(c) Bail bond agents; and

(d) All course providers, contact

persons, instructors, school officials,

supervising instructors, and monitors of

continuing education courses.

(2) This rule chapter shall govern the

implementation and enforcement of con tinuing

education requirements, pursuant to Sections

. . . 648.385, 648.386 . . . F.S.

35. Florida Administrative Code Rule 69B - 228.030 states as

follows, in relevant part:

69B - 228.030 Definitions. For purposes

of these rules, the following def initions

shall apply:

* * *

(5)(a) "Class" means the study method

of a course designed to be presented to a

group of licensees using lecture, video,

satellite, or other audio - visual

presentation material which has an approved

instructor, supervisin g instructor or other

approved means of oversight and delivery

present in the classroom during the

presentation.

* * *

(6) "Completion," when used in the

context of:

(a) Self - study, means a passing grade

of seventy percent (70%) or better on a

monitored examination.

(b) " Interactive On - line " means

achievement of seventy percent (70%) or

better on an internal testing program

administered by computer on line or via the

internet and that is certified by the

provider to the Department with e ach

application for course approval.

(c) Class, means attendance for the

full amount of time approved for each

course.

* * *

(9) "Course" shall mean any of the

following which have been approved by the

Department for the purpose of complying with

continuing education requirements:

(a) Any class or seminar for

* * *

5. Professional bail bond agents.

(b) Any self - study program for:

* * *

3. Professional bail bond agents,

* * *

(10) "Course Offering" mea ns a unique

offering of an approved classroom or seminar

course, or a monitored exam of a self - study

course, which includes a specific location,

date(s), and time for the course or exam to

be held; or a location, time and frequency

of a monitored exam.

* * *

(17) "Formal program of learning"

means:

(a)1. A structured class with an

instructor and detailed outline, or

2. A self - study course with text and

structured lesson plans or study guide and

exam.

3. Self - study may include vid eos or

cassette tapes.

* * *

(19)(a) "Hour" means sixty (60)

minutes of class or seminar time . . .

(b) For self - study courses, hour means

fifty (50) minutes of time that is

determined by the Department to be necessary

to study text materia l in order to

successfully complete the monitored final

examination or on - line internal testing .

* * *

(24) " Interactive On - line " means a

self - study course that is delivered to and

taken by a student through the use of

computer based technology with a connection

to either a host home - office computer or the

internet .

(25) "Monitor group" means a group

designated by a course provider in an

eligible occupational class, or an organized

eligible group of individuals with a central

coordinating person, approved by the

Department to monitor self - study exams for

approved course providers.

(26) "Monitored examination" means an

objective measurement of the comprehension

of a self - study program through a written or

computer based examination unassisted by any

person, textbooks, or other material under

the supervision of a monitor from an

approved monitor group.

* * *

(29) "On - line internal testing" means

objective assessment and measurement of the

comprehension of an interactive on - line

self - study program through examination

unassisted by any person, text book, access

to on - line study program materials, or other

materials during the exam .

* * *

(36) "School official" means a natural

person appointed by an approved course

p rovider for other than bail bond agent

courses . . . .

* * *

(38) "Self - study course" means a

course designed to be studied independent of

an instructor's presence through:

(a) Written, audio, or video

materials, or

(b) Computer tech nology, including

disks, on - line programs, or internet

programs .

(39) "Seminar" means a course designed

to be presented:

(a) Using lecture, video, satellite,

or other audio - visual presentation material

by individuals with special expertise th at

has an approved speaker or instructor

present during each presentation.

* * *

(41) "Supervising Instructor" means a

natural person who is:

(a) Approved by the Department,

(b) Appointed or employed by an

approved course provider of bail bond agent

continuing education courses, and

(c) Who may be responsible for one (1)

or more of the following activities of a

Bail Bond Agent Course:

1. Certification to the supervising

instructor of each attending bail bond

agent;

2. Assuring that the course is

approved prior to instruction;

3. Instruction of courses; and

4. Collection and transfer of course

completion and attendance records to the

supervising instructor. (Emphasis added).

36. Florida Administrative C ode Rule 69B - 228.040 states as

follows in pertinent part:

69B - 228.040 Course Providers.

* * *

(3) General requirements.

* * *

(c) Providers may have a policy of

providing a complimentary classroom course

for students who fail a monitored exam or

interactive on - line testing program .

* * *

(5) Course providers offering courses

for bail bond agents shall:

* * *

(d) Offer classes that are taught by

an approved supervising instructor . . . .

(Emphasis added).

37. Florida Administrative Code Rule 69B - 228.060 provides

as follows in pertinent part:

69B - 228.060 Instructors and

Supervising Instructors.

(1) Continuing Education Courses.

Instruction in continuing education courses

shall be provided by instructors wh o possess

the following qualifications:

* * *

(2)(a) Certification of the

instructor's experience or education shall

be furnished by the sponsoring course

provider or the instructor . . .

(b) Certification shall be received by

the Departmen t or its designee and approved

prior to the beginning of the course.

38. Florida Administrative Code Rule 69B - 228.080 states as

follows in pertinent part:

69B - 228.080 Course Approval;

Requirements; Guidelines.

(1)(a) Each course shall be a pproved

by the Department prior to the initial

course offering and before any advertisement

of the course.

* * *

(11) Self - Study Courses; Supplemental

Requirements.

(a) Course Approval.

* * *

3. Self - Study course applications, for

other than interactive on - line; software -

based or other computer - based courses , shall

include:

* * *

c. A copy of the detailed instructions

to staff, school official, students, and

monitor group for the monitoring process;

4. Interactive on - line, software -

based, or other computer based training

course application shall include :

a. On - line access for the Department

to review the course or a copy of course

software with instructions;

* * *

d. Details of how access is

control led;

e. For courses with monitored exams , a

copy of the detailed instructions to staff,

school officials, students, and monitor

group for the monitoring process.

f. For interactive on - line courses

without a monitored exam , information which

d emonstrates that:

(I) Student identity is assessed and

controlled upon registration and throughout

the duration of the course;

(II) Students are provided access to

qualified experts or other persons

authorized by the provider who can respond

to questions regarding course requirements

and material. Such qualified experts must

by available on a ratio of one (1) per every

thirty (30) students enrolled at any one

time;

(III) Student's progress is assessed

and feedback is provided to the stu dent upon

completion of approximately each quarter

(25%) of course material.

(IV) On - line testing is administered

to determine the level of the student's

comprehension of course material. Students

are required to acknowledge their

understanding that the on - line course

testing must be completed unassisted by any

person, the course material, or other

materials. The student acknowledgement

shall also include the student's

understanding that a violation of such

standards shall result in the loss of cour se

credit and administrative sanction by the

Florida Department of Financial Services.

(b) Monitor Group Approval.

1. For other than interactive on - line

self - study courses , the monitor group and

the course shall be submitted by the

provider t o the Department and shall be

approved by the Department, pursuant to Rule

69B - 228.080, F.A.C., prior to distribution

or advertisement of course material to

licensees.

* * *

4. The monitor shall:

a. Open the sealed examination envelop

and observe the student taking the

examination;

b. Complete a signed written document

from the provider stating:

* * *

(IV) The student did not use any study

material to complete the examination.,

(V) The student was not assisted by

the m onitor or anyone else.

(VI) That the monitor verified the

identification of the student.

(c) Self - study examinations.

1. Self - study examination questions

for other than interactive on - line courses

shall be referenced back to the text. . . .

* * *

3. A licensee must achieve a grade of

seventy percent (70%) or more on a monitored

examination taken through a monitoring

process approved by the Department or on the

internal testing approved for an interactive

on - line course .

4 . Instructions to resident licensees

of Florida shall be included and prominently

located in each course order form or packet

of course material sold for other than

interactive on - line courses including the

following information:

a. The location, dates, and times that

the monitored examination will be offered,

* * *

e. A statement of personal

responsibility for the student to sign

stating that the student completed the exam

without assistance.

* * *

5. Instructions to non - resident

licensees of Florida shall include:

* * *

f. A statement of the student's

personal responsibility that the student

would be required to sign and that would be

provided to the student and retained by the

approved course provider as part of the

cours e completion records.

g. The examination sealed with a

resistant seal or wrapping with

instructions:

(I) That the examination shall not be

opened by anyone other than the monitor,

(II) That the monitor shall send the

examination to the approved course provider.

6. Monitors for exams for other than

an interactive on - line shall:

a. Be present to observe the exam and

shall mail a monitor affidavit to the

provider or school official.

b. Collect the disk, CD, or other exam

d ocument for other than interactive on - line

programs and mail or deliver it to the

approved course provider, or school official

for grading certification.

7. Self - study examination may be given

in the student's place of business if the

approved course provider arranges for the

approved monitor group to provide a monitor

during the examination for other than

interactive on - line courses . (Emphasis

added).

39. Florida Administrative Code Rule 69B - 228.090 states as

follows in relevant part:

69B - 22 8.090 Course Offerings and

Attendance Records.

(1) Class or Seminar Offerings.

* * *

(2) Self - Study Exam Offerings.

(a) The provider of each self - study

course other than approved interactive on -

line courses shall furnish a completed Form

DFS - H2 - 397, Schedule of Course Offerings . .

. for each examination location in Florida.

(b) Examination locations:

1. Inside Florida.

* * *

2. Out - of - state for non - resident

licensees.

* * *

(4 ) Class, Seminar, or Examination

Attendance.

(a) The student's photo ID license or

driver's license shall be used for

verification of identity by the course

provider for each offering.

(b) A Roster submitted to the

Department that includes t he name of a

licensee who was not in attendance shall be

grounds for administrative action by the

Department. (Emphasis added).

40. Florida Administrative Code Rule 69B - 228.100 states as

follows in pertinent part:

69B - 228.100 Certification of Stu dents.

(2)(a) Classroom study method courses

shall be attended or completed in their

entirety in order for a licensee to receive

credit.

* * *

(3)(a) Seminar study method courses will be

evaluated for the total number of hours

credit possible at the event.

* * *

(7)(a) Each approved course provider

shall maintain accurate attendance records

containing:

1. The name, date, and location of the

offering;

2. Documentation that an ID was

checked;

3. Name and license ID number of

licensee;

4. Proof of at least two (2)

attendance checks for class and seminar

courses over four (4) hours; and

5. A statement signed by the

instructor or school official that the

attendance records are correct.

41. Florida Administrativ e Code Rule 69B - 228.110 states as

follows in pertinent part:

69B - 228.110 Textbooks.

* * *

(5) Each self - study course other than

approved interactive on - line or other on -

line or internet courses shall be sold with

the approved textbook and su pplemental

material. (Emphasis Added).

42. Florida Administrative Code Rule 69B - 228.130 states as

follows in relevant part:

69B - 228.130 Facilities.

(1) Each course, seminar, or self -

study examination shall be conducted in a

classroom or o ther facility which is

adequate to comfortably accommodate the

faculty and the number of participants.

Supervising Instructor

43. The first issue is whether Respondent has a policy to

approve on - line continuing education courses for bail bond

agents without a supervising instructor. There is no agency

statement, written or oral, to that effect.

44. Athena is the only entity that has applied to become

an on - line continuing education provider for bail bond agents.

Respondent approved Athena's appl ication to be a provider and

all of Athena' on - line courses before it approved Mr. Stewart as

the supervising instructor. However, the record indicates that

Respondent's approval of Athena's on - line courses prior to the

approval of the supervising instruc tor was an inadvertent

mistake, which was corrected prior to hearing.

45. Respondent's approach regarding supervising

instructors for on - line bail bond agent continuing education

courses is to follow the requirements of Florida Administrative

Code Rules 69B - 228.030(41), 69B - 228.040(5), 69B - 228.060(1)(b),

69B - 228.060(2)(a), and 69B - 228.060(2)(b).

Monitored Examination

46. The next issue is whether Respondent has a policy to

approve on - line continuing education courses for bail bond

agents without a mon itored examination. Once again, Respondent

has not made a written or verbal statement to that effect.

47. Florida Administrative Code Rule 69B - 228 deals with

self - study courses with monitored examinations and interactive

on - line self - study courses with on - line internal testing. The

former is a course presented through written, audio, or video

materials, or through computer technology, including computer

disks, on - line programs, or internet programs, all of which

require a monitored examination under th e personal supervision

of a monitor from an approved monitor group. See Fla. Admin.

Code R. 69B - 228.080(11)(a)4.e. The latter is a course presented

through an interactive on - line program with on - line internal

testing, which does not rely on the supervisi on of a monitor

from an approved monitor group. See Fla. Admin. Code R. 69B -

228.080(11)(a)4.f.

48. A monitored examination requires a monitor from an

approved monitor group to personally identify a student during

the examination and to confirm that the student is not receiving

help on the test from anyone or from any written material. See

Fla. Admin. Code R. 69B - 228.030(25), 69B - 228.030(26), 69B -

228.080(11)(b)4., and 69B - 228.080(11)(c)6.

49. On the other hand, internal testing approved for an

intera ctive on - line course does not require the presence of a

monitor during an examination but does require an on - line

acknowledgement by students that they are who they say they are

and that they are not receiving help on the test from anyone or

any written ma terial. See Fla. Admin. Code R. 69B - 228.030(7),

69B - 228.030(24), 69B - 228.030(29), and 69B - 228.080(11)(a)4.f.

50. In this case, Athena's internal testing process is

analogous to the requirements for interactive on - line courses

without a monitored exami nation. The rules clearly authorize

such courses. The problem here is that Respondent has attempted

to interpret its rules, and in doing so, has concluded that

Athena's internal testing program meets the requirements for

interactive on - line courses witho ut a monitored examination,

while also meeting the requirements for a monitored examination.

This interpretation does not establish a separate policy related

to unmonitored exams for bail bond agent continuing education

courses.

51. In Environmental Tr ust v. State Department of

Environmental Protection , 714 So. 2d 493, 498 (Fla. 1st DCA

1998), the court found:.

An agency statement explaining how an

existing rule of general applicability will

be applied in a particular set of facts is

not itself a rule. If that were true, the

agency would be forced to adopt a rule for

every possible variation on a theme, and

private entities could continuously attack

the government for its failure to have a

rule that precisely addresses the facts at

issue. Instead, thes e matters are left for

the adjudication process under section

120.56, Florida Statutes.

52. Respondent's explanation of its continuing education

rules in this case is drawn from Ms. Muhammed's testimony. She

stated that Athena's courses complied with th e rule requirements

for interactive on - line courses with internal on - line tests and

for monitored examinations. She never took the position that a

monitored examination was not required for bail bond agent

continuing education courses.

53. In summary, whether Athena's application could be

accepted based upon compliance with an internal on - line testing

process or a monitored examination is a matter to be determined

through the adjudicatory process. The agency response does not

constitute the establishme nt of substantive policy through an

unadopted rule. See § 120.57(1), Fla. Stat.; Environmental

Trust v. State Department of Environmental Protection , 714 So.

2d at 498.

54. Petitioner has not met its burden of proving that

Respondent has a policy, that meets the definition of a rule, to

approve bail bond agent continuing education courses without a

monitored exam.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that:

Respondent's Petition Challenging Agency State ment Defined

a Rule is dismissed.

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

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1 230 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 April, 2006.

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of April, 2006.

COPIES FURNISHED :

Harold F. X. Purnell, Esquire

Rutledge, Ecenia, Purnell &

Hoffman , P.A.

Post Office Box 551

Tallahassee, Florida 32302 - 0551

R. Terry Butler, Esquire

Department of Financial Services

200 East Gaines Street

Room 612 Larson Building

Tallahassee, Florida 32399

D. Andrew Byrne, Esquire

Cooper & Byrne

3520 Thomasville Roa d, Suite 200

Tallahassee, Florida 32309

Scott Boyd, Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

Liz Cloud, Program Administrator

Administrative Code

Departme nt of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

Carols G. Muniz, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Honorable Tom Gallagher

Chief Financial Officer

Departme nt of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

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.