06-001920RP
Bennett B. Richardson vs.
Department Of Management Services
Status: Closed
DOAH Final Order on Tuesday, September 19, 2006.
DOAH Final Order on Tuesday, September 19, 2006.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8BENNETT B. RICHARDSON , )
12)
13Petitioner , )
15)
16vs. ) Case Nos. 06 - 0427RU
23) 06 - 1920RP
27DEPARTMENT OF MANAGEMENT )
31SERVICES, DIVISION OF )
35RETIREMENT , )
37)
38Respondent . )
41)
42FINAL ORDER
44Administrative Law Judge (ALJ) Daniel Manry conducted the
52formal hearing in this proceeding on July 10, 2006, in
62Tallahassee, Florida, on behalf of the Division of
70Administrative Hearings (DOAH).
73APPEARANCES
74For P etitioner: Denise J. Beleau, Esquire
81Buckingham, Doolittle,
83& Burroughs, LLP
865355 Town Center Road, Suite 900
92Boca Raton, Florida 33486
96For Respondent: Larry D. Scott, Esquire
102Department of Management Services
1064050 Esplanade Way, Suite 160
111Tallahassee, Florida 32399 - 0950
116STATEMENT OF THE ISSUES
120The issues in this proceeding are whether Petitioner has
129standing to challenge an u nwritten rule and a proposed rule and,
141if so, whether either rule is an invalid exercise of delegated
152legislative authority within the meaning of Subsections
159120.56(4) and 120.56(1), Florida Statutes (2005), respectively.
166PRELIMINARY STATEMENT
168This proc eeding began on February 3, 2006, when Petitioner
178challenged an agency statement of eligibility in the Special
187Risk Class of the Florida Retirement System. Respondent began
196rulemaking proceedings, and the undersigned issued an order on
205March 28, 2006, whi ch stayed the original rule challenge
215pursuant to Sub s ection 120.56(4)(e)2 . , Florida Statutes (2005).
225Respondent developed a proposed rule, and Petitioner
232challenged the proposed rule on May 26, 2006. On June 7, 2006,
244the undersigned rescinded the stay because the proposed rule
253addressed an agency statement that was different from the agency
263statement challenged as an unpromulgated rule. On June 19,
2722006, the undersigned consolidated the challenge to the proposed
281rule with the original rule challenge.
287At the formal hearing, Petitioner presented the testimony
295of five witnesses and submitted 28 exhibits for admission into
305evidence. Respondent called one witness and submitted nine
313exhibits for admission into evidence.
318The identity of the witnesses and exhibits and the rulings
328regarding each are reported in the one - volume Transcript of the
340hearing filed with DOAH on July 26, 2006. The undersigned
350granted Petitioner's unopposed request for extension of time in
359which to file proposed final orders (PFOs). The parties timely
369filed their respective PFOs on August 17, 2006.
377FINDINGS OF FACT
3801. Respondent is the state agency responsible for
388administering the Florida Retirement System (FRS). From June 1,
3971994, through the present (the uncontested period), P etitioner
406has been employed by Martin County, Florida (Martin County), as
416a firefighter and has been a member of the Special Risk Class of
429the FRS pursuant to the firefighter criteria in Subsection
438121.0515(2)(b), Florida Statutes (2005).
4422. In 1999, the legislature added Subsection
449121.0515(2)(d), Florida Statutes (1999), to include in the
457Special Risk Class those employed as an emergency medical
466technician (EMT) by a licensed Advance Life Support (ALS) or
476Basic Life Support (BLS) employer. In 2000, the legislature
485authorized those employed as an EMT by an ALS or BLS to upgrade
498prior creditable service earned as an EMT. 1
5063. Sometime in December 2004, Petitioner requested credit
514for prior service with Martin County that Petitioner rendered as
524a n "EMT/Ocean Lifeguard" from February 26, 1989, through May 31,
5351994 (the contested period). In a Final Summary Order issued on
546April 19, 2006, Bennett Richardson v. Division of Retirement ,
555Case No. R - 04 - 03631 - MIA (hereinafter, " Richardson I ), Respondent
569de nied the request on the ground that the identical issue had
581been fully litigated on October 15, 2001, and a final order
592denying the request was issued on January 3, 2002, in Beckett et
604al . v. Division of Retirement , Case No. ROO - 67 - MIA (hereinafter,
" 618Becke tt "). The Final Summary Order issued in Richardson I is
630currently on appeal to the Fourth District Court of Appeal. 2
6414. On February 3, 2006, Petitioner filed a petition
650challenging an agency statement by Respondent as a rule that had
661not been adopted in accordance with rulemaking procedures in
670violation of Subsections 120.54(1)(a) and 120.56(4), Florida
677Statutes (2005) (unwritten rule). The agency statement emerged
685during the deposition of an employee of Respondent on
694January 20, 2006.
6975. On March 28, 2 006, the undersigned stayed the challenge
708to the unwritten rule because Respondent proceeded to rulemaking
717pursuant to Subsection 120.56(4)(e), Florida Statutes (2005)
724(the proposed rule). On May 26, 2006, Petitioner filed a
734petition challenging the propo sed rule pursuant to
742Subsection 120.56(2), Florida Statutes (2005).
7476. On June 7, 2006, the undersigned rescinded the previous
757stay on the ground that the proposed rule addresses a statement
768that is different from the statement in the unwritten rule. T he
780undersigned consolidated the two rule challenges on June 19,
7892006.
7907. Petitioner has standing in each of the rule challenges
800in this proceeding. The interests of Petitioner during the
809contested period are within the zone of interests the
818legislature s eeks to protect.
8238. Petitioner's interests during the contested period are
831evidenced by organizational charts maintained by Petitioner's
838employer. Respondent relies, in relevant part, on
845organizational charts of employers to determine whether
852applicant s for membership in the Special Risk Class satisfy
862relevant statutory criteria.
8659. From the beginning of the contested period through the
875present, Petitioner has been employed by the Emergency Services
884Department of Martin County. The Emergency Service s Department
893includes the Fire Rescue Division, in which Petitioner was
902employed during the uncontested period, as well as the Marine
912Safety Division, in which Petitioner was employed during the
921contested period. 3
92410. Petitioner's interests during the c ontested period are
933evidenced by his job title. Respondent relies, in relevant
942part, on job titles in position descriptions to determine
951whether applicants for membership in the Special Risk Class
960satisfy relevant statutory requirements.
96411. Petitioner' s job title during the contested period was
"974EMT/Ocean Lifeguard." Prior to the contested period,
981Petitioner's job title was limited to "Lifeguard." From the
990beginning of the contested period through the present,
998Petitioner has been employed by the Emerg ency Services
1007Department of Martin County as a certified EMT in compliance
1017with relevant criteria in Subsection 121.0515(2)(d), Florida
1024Statutes (2005). 4
102712. Petitioner's interests during the contested period are
1035evidenced by the job description for t he job title Petitioner
1046held during the contested period. Respondent relies, in
1054relevant part, on job descriptions developed by employers to
1063determine whether applicants for membership in the Special Risk
1072Class satisfy relevant statutory criteria.
107713. A major function of the job Petitioner performed
1086during the contested period was to provide:
1093[S]killed protection of the lives, health,
1099safety and welfare of the public by
1106providing pre - hospital emergency medical
1112care including injury and drowning
1117prevention on Martin County beaches.
1122Petitioner's Exhibit 7. The refusal to provide on - site
1132emergency medical care during the contested period was a ground
1142for disciplinary action against Petitioner. The job description
1150required physical strength and agility suff icient to perform
1159rescue and medical duties. Those job requirements fall within
1168the scope of legislative intent in Subsection 121.0515(1),
1176Florida Statutes (2005).
117914. The agency's denial of membership in the Special Risk
1189Class affects the substantial interests of Petitioner by
1197limiting the annual retirement benefit calculator (multiplier)
1204to 1.6 percent annually. Membership in the Special Risk Class
1214during the contested period would increase the annual multiplier
1223to 3.0 percent.
122615. The agency statem ent challenged as an unwritten rule
1236is evidenced in the deposition testimony obtained during
1244discovery in Richardson I and in a written memorandum issued by
1255Respondent. The agency states that the statutory provision in
1264Subsection 121.0515(2)(d), Florida S tatutes (2005), which
1271requires the primary duties and responsibilities of an EMT to
1281include on - the - scene emergency medical care, is not satisfied
1293unless 50 percent or more of the duties performed by an EMT are
1306on - the - scene emergency medical care (the 50 pe rcent rule).
131916. The challenged agency statement is a rule within the
1329meaning of Subsection 120.52(15), Florida Statutes (2005). The
1337statement satisfies the requirement of "general applicability."
1344The agency applies the statement to determine whether an y
1354applicant satisfies the criteria in Subsection 121.0515(2)(d),
1361Florida Statutes (2005). Respondent has applied the statement
1369in all such applications through the date of the hearing.
137917. The agency statement "implements, interprets, or
1386prescribes" the statutory criteria in Subsection 121.0515(2)(d),
1393Florida Statutes (2005), within the meaning of Subsection
1401120.52(8), Florida Statutes. The agency statement does not fall
1410within any exception prescribed in Subsection 120.52(8)(a) - (c),
1419Florida Statutes (20 05).
142318. The agency statement was not adopted by rulemaking
1432procedures in violation of Subsection 120.54(1)(a), Florida
1439Statutes (2005). Respondent stipulated during the formal
1446hearing that the 50 percent rule was not addressed in the
1457proposed rule.
145919. The proposed rule and the 50 percent rule are
1469substantially similar statements within the meaning of
1476Subsection 120.56(4)(e), Florida Statutes (2005). Both rules
1483establish a quantitative or numerical standard for determining
1491whether the primary dutie s and responsibilities of an EMT
1501include on - the - scene emergency medical care.
151020. The proposed rule would add the following language to
1520Florida Administrative Code Rule 60S - 1.0059(2):
1527Whenever the term "primary duties and
1533responsibilities" is used in R ule
153960S - 1.0051, 60S - 1.0052, 60S - 1.0053, or
154960S - 1.00535, F.A.C., it means those duties
1557of a position that:
1561(a) Are essential and prevalent for the
1568position and are the basic reasons for the
1576existence of the position;
1580(b) Occupy a substantial portion o f the
1588member's working time; and
1592(c) Are assigned on a regular and recurring
1600basis.
1601Duties and responsibilities that are of an
1608emergency, incidental, or temporary nature
1613are not "primary duties and
1618responsibilities."
1619The law implemented by the proposed rule includes Section
1628120.0515, Florida Statutes (2005).
163221. The requirements that on - the - scene emergency medical
1643care must be "prevalent" and "occupy a substantial portion of
1653the member's working time" are substantially similar statements
1661to the unwrit ten 50 percent rule. Both impose quantitative
1671standards to determine whether on - the - scene emergency medical
1682care is a primary duty or responsibility of an EMT.
169222. Quantitative standards in the proposed rule and the
1701unwritten rule enlarge or modify the specific provisions of the
1711law implemented within the meaning of Subsections 120.52(8)(c)
1719and 120.57(1)(e)2.b., Florida Statutes (2005). The law
1726implemented adopts a qualitative standard for determining
1733whether on - the - scene emergency medical care is a pr imary duty or
1748responsibility of an EMT.
175223. The plain and ordinary meaning of the term "primary"
1762requires on - the - scene emergency medical care to be the
"1774principal" duty or responsibility; or the "first or highest in
1784rank, quality, or importance." The A merican Heritage Dictionary
1793of the English Language , at 1393 (4th ed. 2000; Houghton Mifflin
1804Company). On - the - scene emergency medical care was a principal
1816duty of first importance that Petitioner was required to perform
1826during the contested period, irresp ective of whether he
1835performed those duties 50 percent of his workday; irrespective
1844of whether those duties were "prevalent" each day; and
1853irrespective of whether on - the - scene emergency medical care
1864occupied a "substantial portion of the member's working t ime"
1874each day.
187624. The record discloses no evidentiary basis for
1884deference to agency expertise that would justify a departure
1893from the plain and ordinary meaning of the term "primary."
1903Rather, the record shows that Respondent effectively grafted
1911onto t he proposed rule quantitative standards in federal
1920regulations applicable to certain federal employees as a means
1929of defining and implementing the term "primary duties" in the
1939state law criteria prescribed in Subsection 121.0515(2)(d),
1946Florida Statutes (20 05). 5
195125. The legislature adopted a quantitative standard for
1959determining membership in the Special Risk Class in Subsection
1968121.0515(2)(f), Florida Statutes (2005). In relevant part, the
1976legislature required anyone seeking membership under that
1983provisi on to "spend at least 75 percent of his or her time"
1996performing qualifying duties.
199926. The legislature could have adopted a similar
2007quantitative standard in Subsection 121.0515(2)(d), Florida
2013Statutes (2005), but did not do so. The quantitative provisi ons
2024in the proposed rule and unwritten 50 percent rule would
2034effectively amend or modify the relevant statutory criteria in
2043Subsection 121.0515(2)(d), Florida Statutes (2005), by imposing
2050a quantitative standard similar to that in Subsection
2058121.0515(2)(f) , Florida Statutes.
206127. The proposed rule excludes emergency services from the
2070definition of "primary duties and responsibilities." That
2077exclusion modifies or contravenes the statutory requirement that
2085primary duties and responsibilities of an EMT must include
"2094emergency" medical care.
2097CONCLUSIONS OF LAW
210028. DOAH has jurisdiction over the parties and the subject
2110matter in this proceeding. §§ 120.54(1)(a), 120.56(2), and
2118120.56(4), Fla. Stat. (2005). DOAH provided the parties with
2127adequate notice of the formal hearing.
213329. Standing has been equated with subject matter
2141jurisdiction. Grand Dunes, Ltd. v. Walton County , 714 So. 2d
2151473, 475 (Fla. 1st DCA 1998). Petitioner established that the
2161proposed change to the existing rule would cause him to su ffer
2173an "injury in fact" and that the interest he seeks to protect is
2186within the "zone of interest" sought to be protected by the
2197statutory provisions to be implemented by the proposed change.
2206All Risk Corporation of Florida v. State, Department of Labor
2216and Employment Security , 413 So. 2d 1200, 1202 (Fla. 1st DCA
22271982). See also Agrico Chemical Co. v. Department of
2236Environmental Regulation , 406 So. 2d 478, 482 (Fla. 2d DCA
22461981); F lorida Department of Offender Rehabilitation v. Jerry ,
2255353 So. 2d 1230 (Fl a. 1st DCA 1978).
226430. The 50 percent standard in the unwritten rule, the
2274quantitative standards in the proposed rule discussed in the
2283Findings of Fact, and the exclusion of emergency services in the
2294proposed rule constitute an invalid exercise of delegate d
2303legislative authority. Each enlarges, modifies, or contravenes
2310the specific provisions of the law in Subsection 121.0515(2)(d),
2319Florida Statutes.
232131. Respondent is authorized to adopt only those rules
2330that:
2331implement, interpret, or make specific the
2337particular powers and duties granted by the
2344enabling statute. No agency shall have
2350authority to adopt a rule only because it is
2359reasonably related to the purpose of the
2366enabling legislation. . . .
2371§ 120.52(8), Fla. Stat. (2005).
237632. Respondent is an agency of the executive branch of
2386government and is constitutionally prohibited from exercising
2393powers reserved to the legislative branch of state government.
2402Art. II, § 3, Fla. Const. Nor may the legislature delegate
2413legislative powers to an agency of t he executive branch.
2423Rather, the legislature must provide statutory standards and
2431guidelines in an enactment that are ascertainable by reference
2440to the terms of the enactment. Bush v. Shiavo , 885 So. 2d 321
2453(Fla. 2004); B.H. v. State , 645 So. 2d 987, 992 - 994 (Fla. 1994);
2467Askew v. Cross Key Waterways , 372 So. 2d 913, 925 (Fla. 1978).
2479ORDER
2480Based on the foregoing Findings of Fact and Conclusions of
2490Law, it is
2493ORDERED that quantitative criteria in the unwritten
250050 percent rule and the proposed rule, identi fied in the
2511Findings of Fact, constitute an invalid exercise of delegated
2520legislative authority within the meaning of Subsections
2527120.52(8)(c) and 120.57(1)(e)2.b., Florida Statutes (2005).
2533DONE AND ORDERED this 19th day of September , 2006 , in
2543Tallahasse e, Leon County, Florida.
2548S
2549DANIEL MANRY
2551Administrative Law Judge
2554Division of Administrative Hearings
2558The DeSoto Building
25611230 Apalachee Parkway
2564Tallahassee, Florida 32399 - 3060
2569(850) 488 - 9675 SUNCOM 278 - 9675
2577Fax Filing (850) 921 - 6847
2583www.doah.state.fl.us
2584Filed with the Clerk of the
2590Division of Administrative Hearings
2594this 19th day of September , 2006 .
2601ENDNOTES
26021/ The legislative history is at Ch. 99 - 392, § 23, Laws of
2616Fla.; Chs. 2000 - 161, § 4, 2000 - 169, § 6, and 2000 - 347, § 4, Laws
2635of Fla.
26372/ The scope of this proceeding does not reach the merits of
2649the issues addressed in Richardson I and Beckett but is limited
2660to the validity of the unwritten rule and the proposed rule.
26713/ Neither the agency statement challeng ed as an unwritten rule
2682nor the proposed rule determine that the Emergency Services
2691Department of Martin County was not an ALS or BLS within the
2703meaning of § 121.0515(2)(d), Fla. Stat. (2005), and that
2712requirement is not at issue in this proceeding.
27204/ T he disjunctive requirement for employment as either a
2730certified EMT or paramedic has remained unchanged from the time
2740the statute was first enacted in 1999.
27475/ In relevant part, the federal regulations provide:
"2755Primary duties" are those duties of a
2762po sition that --
27661. Are paramount in influence or weight;
2773that is, constitute the basic reasons for
2780the existence of the position;
27852. Occupy a substantial portion of the
2792individual's working time over a typical
2798work cycle; and
28013. Are assigned on a regu lar and recurring
2810basis.
2811Duties that are of an emergency, incidental,
2818or temporary nature cannot be considered
"2824primary" even if they meet the substantial
2831portion of time criterion.
2835In general, if an employee spends an average
2843of at least 50 percent of h is or her time
2854performing a duty or group of duties, they
2862are deemed to be his or her primary duties,
2871without the need for further evidence or
2878support.
2879Respondent's Exhibit 17.
2882COPIES FURNISHED :
2885Denise J. Bleau, Esquire
2889Buckingham, Doolittle & Burrough s, LLP
28955355 Town Center Road, Suite 900
2901Boca Raton, Florida 33486
2905Larry D. Scott, Esquire
2909Department of Management Services
29134050 Esplanade Way, Suite 160
2918Tallahassee, Florida 32399 - 0950
2923Daniel P. Fernandez, Esquire
2927Fernandez Law Offices
293014502 North Dal e Mabry Highway, Suite 200
2938Tampa, Florida 33618
2941Steven Ferst, General Counsel
2945Department of Management Services
29494050 Esplanade Way
2952Tallahassee, Florida 32399 - 0950
2957Sarabeth Snuggs, Director
2960Division of Retirement
2963Department of Management Services
2967Post O ffice Box 9000
2972Tallahassee, Florida 32315 - 9000
2977Scott Boyd, Executive Director
2981and General Counsel
2984Joint Administrative Procedures Committee
2988120 Holland Building
2991Tallahassee, Florida 32399 - 1300
2996Liz Cloud, Program Administrator
3000Administrative Code
3002De partment of State
3006R. A. Gray Building, Suite 101
3012Tallahassee, Florida 32399
3015NOTICE OF RIGHT TO JUDICIAL REVIEW
3021A party who is adversely affected by this Final Order is
3032entitled to judicial review pursuant to Section 120.68, Florida
3041Statutes. Review pr oceedings are governed by the Florida Rules
3051of Appellate Procedure. Such proceedings are commenced by
3059filing the original Notice of Appeal with the agency clerk of
3070the Division of Administrative Hearings and a copy, accompanied
3079by filing fees prescribed b y law, with the District Court of
3091Appeal, First District, or with the District Court of Appeal in
3102the Appellate District where the party resides. The notice of
3112appeal must be filed within 30 days of rendition of the order to
3125be reviewed.
- Date
- Proceedings
- PDF:
- Date: 09/13/2007
- Proceedings: Transmittal letter from Claudia Llado forwarding records to the agency.
- PDF:
- Date: 10/05/2006
- Proceedings: Petitioner`s Motion for Award of Attorney`s Fees and Costs under Section 120.595, Fla. Stat. filed. (DOAH CASE NO. 06-3822F ESTABLISHED)
- PDF:
- Date: 08/02/2006
- Proceedings: Order Granting Extension of Time (Proposed Final Orders to be filed by August 17, 2006).
- PDF:
- Date: 07/31/2006
- Proceedings: Petitioner`s Unopposed Motion for Extension of Time to Submit Proposed Orders filed.
- Date: 07/26/2006
- Proceedings: Transcript of Proceedings filed.
- Date: 07/10/2006
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 07/07/2006
- Proceedings: Letter to Judge Manry from Denise Bleau enclosing copy Petitioner`s Exhibits (not available for viewing) filed.
- PDF:
- Date: 07/06/2006
- Proceedings: Respondent`s Objection to Subpoena (filed in Case No. 06-1920RP).
- PDF:
- Date: 06/19/2006
- Proceedings: Order Consolidating Cases (DOAH Case Nos. 06-0427RU and 06-1920RP).
- PDF:
- Date: 06/19/2006
- Proceedings: Respondent`s Response to Petitioner`s First Request for Production filed.
- PDF:
- Date: 06/16/2006
- Proceedings: Order Cancelling Hearing (parties to advise status by July 17, 2006).
- PDF:
- Date: 06/09/2006
- Proceedings: Respondent`s Motion to Consolidate Cases (with DOAH Case No. 06-0427RP) filed.
- PDF:
- Date: 06/01/2006
- Proceedings: Notice of Hearing (hearing set for June 22 and 23, 2006; 9:00 a.m.; Tallahassee, FL).
Case Information
- Judge:
- DANIEL MANRY
- Date Filed:
- 05/26/2006
- Date Assignment:
- 06/19/2006
- Last Docket Entry:
- 09/13/2007
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Department of Management Services
- Suffix:
- RP
Counsels
-
Denise J. Bleau, Esquire
Address of Record -
Daniel P. Fernandez, Esquire
Address of Record -
Steven S. Ferst, Esquire
Address of Record -
Larry D. Scott, Esquire
Address of Record