07-004792RP Professional Licensure Services, Inc. vs. Department Of Business And Professional Regulation, Construction Industry Licensing Board Status: Closed DOAH Final Order on Thursday, January 10, 2008.

Summary: The Motion to Dismiss is granted. Petitioner does not have standing to bring challenge to the proposed rules in question.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL LICENSURE ) )

SERVICES, INC., )

)

Petitioner, )

) Case Nos. 07-4792RP

vs. ) 07-5370RP

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Respondent, )

FINAL ORDER ON MOTION TO DISMISS

Respondent, Department of Business and Professional

Regulation, Construction Industry Licensing Board (Board), filed

a Motion to Dismiss for Lack of Standing, seeking to dismiss the

Amended Petition for Determination of Invalidity of Proposed

Rules filed by Petitioner, Professional Licensure Services, Inc.

The primary basis for the Motion to Dismiss is that Petitioner

lacks standing to bring this rule challenge. Petitioner filed a

response in opposition.

Section 120.56(1)(a), Florida Statutes (2007), states that

any person substantially affected by a rule or a proposed rule

may seek an administrative determination of the rule on the

ground that the rule is an invalid exercise of delegated

legislative authority. In order to demonstrate that a party is

substantially affected by a rule, one must establish that

application of the rule will result in "a real and sufficiently

immediate injury in fact" and that "the alleged interest is

arguably within the zone of interest to be protected or

regulated." Florida Board of Medicine v. Florida Academy of

Cosmetic Surgery, Inc. , 808 So. 2d 243, 250 (Fla. 1st DCA 2002).

The Amended Petition includes the following allegations

regarding standing: 1/

Parties

2. Petitioner is a Florida corporation that

assists contractors and potential

contractors with navigating Florida’s

regulatory and licensure framework.

Petitioner assists its clients regarding

certified and registered license

applications and processes. Petitioner

assists in the submission of 100 to 150 of

the approximately 1,000 applications that

are submitted to the Board each month. The

proposed rules substantially affect

Petitioner by enlarging, modifying and

contravening the statutes which form the

basis of Petitioner’s services.

Additionally, the proposed rules provide

further restrictions for contractors, which

substantially affects Petitioner by reducing

the pool of licensure applicants in the

State of Florida. This reduction will

likewise reduce the number of people who

would seek Petitioner’s services. See Gold

Coast School of Construction v. DBPR , DOAH

Case No. 04-0692RP, ¶ 23 (2004). See also

Florida Board of Medicine v. Florida Academy

of Cosmetic Surgery, Inc. , 808 So.2d 243,

251 (Fla. 1st DCA 2002) (a party may

challenge a rule that has a “collateral

financial impact on the challenger’s

business”). Finally, Petitioner is

substantially affected because it regularly

attends Board meetings and generally

advocates for current and future clients.

In its Response to the Motion to Dismiss, Petitioner relies

on several cases which address the standing of trade or

professional associations in rule challenge proceedings.

Trade or professional associations have standing in certain

circumstances to challenge a rule:

To be permitted to do so, the trade or

professional association must demonstrate

that [1] a substantial number of its

members, although not necessarily a

majority, are 'substantially affected' by

the challenged rule[;]. . . [2] the subject

matter of the rule [is] within the

association's general scope of interest and

activity[;] and [3] the relief requested

[is] of the type appropriate for a trade

association to receive on behalf of its

members.'

Florida Board of Medicine v. Florida Academy of

Cosmetic Surgery, Inc., supra at 250 , quoting Florida

Home Builders Ass'n v. Department of Labor &

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

Respondent correctly points out that Petitioner is not an

association representing licensees or license applicants, but is

merely in the business of advising those persons who are

affected by regulations, including licensing rules. The cases

relied on by Petitioner which address associational standing are

distinguishable from the instant case and do not address

entities such as Petitioner. e.g. , NAACP v. Florida Board of

Regents , 863 So. 2d 294, 297-298 (Fla. 2003)(concluding that a

trade or professional association should be able to institute a

rule challenge if a substantial number of its members are

substantially affected, even though it is acting solely as the

representative of its members).

Petitioner further argues that the adoption of these

proposed rules would result in several collateral financial

impacts on Petitioner’s business, but relies on cases in which

the challenged rules directly regulate a litigant’s profession,

not a corporation acting as an applicant’s surrogate. e.g. ,

Televisual Communications, Inc., v. State Department of Labor &

Employment Security , 667 So. 2d 372 (Fla. 1st DCA 1995 (a

publishing company of educational video programs for medical

professions had standing to challenge a proposed rule that would

require the presence of an instructor when videos were used);

and Department of Professional Regulation v. Sherman College ,

682 So. 2d 559, 560-561 (Fla. 1st DCA 1995) (chiropractic

college had standing to challenge rules which required that

candidates for licensure received degree from college with both

regional and professional accreditation).

Petitioner challenges proposed Rules 61G4-15.005, 61G4-

15.006, 61G4-12.011, and 61G4-15.0021, which deal with

certification, registration and licensure of applicants

regulated by the Board. Petitioner acknowledges in paragraph 10

of its response to the Motion to Dismiss that the proposed rules

in question do not regulate Petitioner’s business directly. The

proposed rules which are the subject of this challenge regulate

applicants, not entities who help applicants.

Accordingly, the Petition does not sufficiently state

specific facts showing that Petitioner is substantially affected

in that the Petition does not include a specific showing of a

"real and sufficiently immediate injury in fact" that is within

the "zone of interest to be protected or regulated."

The undersigned is persuaded that, under the rationale of

established case law regarding standing in rule challenge

proceedings, Petitioner lacks standing to bring this rule

challenge.

Petitioner does not request that it be given an opportunity

to amend the Petition to assert and allege further facts which

evidence the substantial effect the proposed rules have on

Petitioners. Whether requested or not, the effect of the

proposed rules on Petitioner has been adequately pled and could

not be improved upon by amendment. Petitioner is simply not an

entity which is substantially affected by the proposed rules as

contemplated by Section 120.56(1)(a), Florida Statutes, and the

case law interpreting that section. Accordingly, the

undersigned finds that allowing amendment to the Petition on

this occasion would not allow Petitioner to state a cause of

action in this rule challenge proceeding. See Undereducated

Foster Children of Florida v. Florida Senate et al. , 700 So. 2d

66 (Fla. 1st DCA 1997).

Based upon the above, it is

ORDERED:

1. The Motion to Dismiss is granted.

2. The hearing scheduled for January 18, 2008, is hereby

canceled.

DONE AND ORDERED this 10th day of January, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of January, 2008.

ENDNOTE

1/ The case was proceeding under the Amended Petition for

Determination of Invalidity of Proposed Rules. A Second Amended

Petition for Determination of Invalidity of Proposed Rules was

filed but no ruling had been issued as yet. In any event, the

Amended and proposed Second Amended Petition contain the

identical allegations regarding Petitioner's standing as quoted

herein.

COPIES FURNISHED:

Daniel R. Biggins, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Timothy P. Atkinson, Esquire

Gavin D. Burgess, Esquire

Oertel, Fernandez, Cole & Bryant, P.A.

Post Office Box 1110

Tallahassee, Florida 32302-1110

Scott Boyd, Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

G. W. Harrell, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

Northwood Center

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Holly Benson, Secretary

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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 the original Notice of Appeal with the agency Clerk of

the Division of Administrative Hearings and a 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.