07-004783RU Thomas R. Filippi vs. Department Of Education Status: Closed DOAH Final Order on Friday, June 20, 2008.

Summary: Respondent`s revised application form is a valid rule, and the outdated form, which was mistakenly made available to online applicants for a time after the adoption of the revised form, was not an unlawful unadopted rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS FILIPPI, )

)

Petitioner, )

)

vs. )

) Case No. 07-4783RU

DEPARTMENT OF EDUCATION and )

STATE BOARD OF EDUCATION, )

)

Respondents. )

)

FINAL ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

February 15, March 24, and April 4, 2008, at sites in

Tallahassee, Miami, and Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Timothy P. Atkinson, Esquire

Gavin D. Burgess, Esquire

Oertel, Fernandez, Cole & Bryant

Post Office Box 1110

Tallahassee, Florida 32302-1110

For Respondent: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316-1924

STATEMENT OF THE ISSUES

The issues in this case are, first, whether a section of an

application form, which was adopted as a rule, is an invalid

exercise of delegated legislative authority; and, second,

whether portions of an outdated online version of the same

application form constituted an agency statement defined as a

rule, which was not adopted in accordance with (and thus

violated) Section 120.54(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

By a Notice of Re asons dated Ma y 30, 2006, Jo hn L. Winn, 1 as

Commissioner of Education, notifi ed Petitioner Th omas R. Filippi

that the Department of Education inte nded to deny his application

for a teaching certificate purs uant to Sectio n 1012.56(10),

Florida Statut es. As grounds for the denial, th e Commissioner

asserted that Fi lippi lacks the go od moral characte r required to

be eligible for a teac hing certificate and th at he had committed

acts which would author ize the Educatio n Practices Co mmission to

revoke a teaching ce rtificate. Fi lippi disputed the factual

allegations and timely requested a revi ew by the Education

Practices Comm ission. On Octobe r 9, 2007, the Ed ucation Pr actices

Commission referred the matter, for a formal hearing, to the

Division of Admini strative Hearings, where it was docketed as Case

No. 07-4628.

Meantime, on October 19, 2007 , Mr. Filippi fi led a petition

with the Division of Administrative Hearings seeking to nullify

certain provisio ns of the form s on which he had applied for

licensure, either as co nstituting an invalid exercise of delegated

legislative auth ority (which he al leged in relation to the form on

which he first applied) or as part of an unad opted rule (which he

claimed was the le gal status of th e form on whic h he made his

second, third, and four th applications ). This rule challenge,

brought against th e department and the Stat e Board of Education,

was docketed as Ca se No. 07-4783RU. On November 30, 2007, at the

parties' joint request, the undersigne d consolidated the two cases

for all purposes , including fina l hearing.

In the run-up to the final hearing, each side sought, and was

granted, leave to amen d its pleading. Conseq uently, Case No. 07-

4628 proceeded to hearing on the charges br ought in the

Commissioner's Third Am ended Notice of Reasons. In Case No. 07-

4 7 8 3 R U , t h e i s s u e s w e r e f r a m e d i n M r . F i l i p p i ' s Amended Petition

for Determination of Invalidity of Adopted and Unadopted Rules.

At the final hearin g of the consolidated cases, which was

h e l d o v e r t h e c o u r s e o f s e v e r a l d a y s , o n February 15; March 24;

and April 4, 2008, M r . F i l i p p i c a l l e d t h e f o l l o w i n g w i t n e s s e s ( i n

addition to hi mself): Father Enriqu e Estrada (whose video

deposition was received in lieu of a live appearance); Dr. Maria

Chelala; and Kevin S. Trim. In addi tion, Petitioner 's Exhibits 1-

8, 9(a)-(9d), 10(a)-10 (e), 11(a)-11(d), 12, 15, 17, 18, 19(k), 20,

21(b)-21(h), 22(a), 23 -27, 31(b), 31(k), 31 (l), 44, 49, 58, 62,

and 71 were admitt ed into evidence.

Respondents pr esented the foll owing witnesses: Beverly W.

Gregory, Ana Rasco, Heat her Deskins, Marian La mbeth, and Ronald G.

Stowers. Resp ondents' Exhibits 5-9, 13, 15 18, 18(b), 19, and 23

were received also, as were two depo sitions of Mr. Filippi, whose

prior testimony wa s admitted in ad dition to his ex tensive hearing

testimony.

The undersigned to ok official recogn ition of numerous

documents, as memorialized in the file.

The transcript of the final hear ing, comprising five volumes

(one of which is unnumb ered), was filed seriatim , over time, with

the final tranche arriving on Ma y 14, 2008. By Order dated

M a y 2 2 , 2 0 0 8 , t h e u n d e r s i g n e d s e v e r e d Case Nos. 07-4268 and 07-

4783RU, for disposition. T h e r e a f t e r , e a c h p a r t y t i m e l y s u b m i t t e d

a Proposed Final Order (in Case No. 07-4783RU) before the deadline

of May 27, 2008; th eir papers were duly considered.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2007 Florida Statutes.

FINDINGS OF FACT

1. Petitioner Thomas Filippi ("Filippi") desires to be

issued an Educator's Certificate authorizing him to teach in the

public schools in the State of Florida. Accordingly, on or

about March 1, 2005, Filippi filled out and signed an

Application for Florida Educator's Certificate. Through this

application, Filippi sought to become certified to teach

Chemistry (Grades 6-12) in the Florida public schools. Filippi

mailed his application to the Department of Education

("Department"), where it was received on March 7, 2005.

2. Question No. 22 of the application, on the subject of

professional sanctions, comprised four subparts, and asked the

following:

[1] Have you ever had any professional

license ( a driver's license is not a

professional license ) or professional

certificate, including a teaching

certificate, sanctioned by the issuing

agency in this or any state? Sanction is

defined to include: suspension; revocation;

discipline, such as issuance of a reprimand

or fine; or otherwise conditioned, such as

placed on any restriction or probation. [2]

Have you ever resigned, surrendered, or

otherwise relinquished a professional

license or certificate in this or any state?

[3] Is there any action pending in this or

any state against a professional license or

certificate that you hold or held? [4] Is

there any action pending in this or any

state against an application for a

professional license or certificate that you

have on file? (A determination of academic

ineligibility is not considered denial of a

license or certificate.)

(Bracketed numbers added.) Beneath these questions, for the

applicant whose answer would be "yes," were lines on which to

identify, with respect to any sanction(s) prompting the

affirmative response, the "State," "Year," "License or

Certificate," "Issuing Agency," and "Reason."

3. Over the next seven months, on April 12, 2005; May 16,

2005; and October 11, 2005, Filippi filed three additional

applications for licensure with the Department, each one seeking

certification in a different subject or subjects. Filippi's

second, third, and fourth applications (collectively, the

"Online Applications"), unlike his first, were completed and

submitted electronically via the internet.

4. The Online Applications were identical to each other in

form, but differed somewhat from Filippi's first application.

This was because, in December 2004, the State Board of Education

("SBE") had adopted an updated version of the application for a

teaching certificate, which form was duly incorporated by

reference into, and made a part of, Florida Administrative Code

Rule 6A-4.0012. Due to an oversight, however, the Department

had not revised the online application to reflect the most

recent changes to this form——and would not do so until October

2006, when it discovered the mistake. Consequently, Filippi's

first application was made on the then-current form; his Online

Applications, however, despite having been submitted later in

time, were made on an older version of the form.

5. There was a question in the Online Applications dealing

with professional sanctions. The inquiry, however, contained

only three subparts rather than four, as had Question No. 22 of

the first application Filippi had submitted. The following

shows the differences between the Online Applications (which the

Department inadvertently had neglected to update), on the one

hand, and Filippi's first application (which used the then-

current form), on the other, by underlining the language that

was not in the Online Applications (but should have been ), and

striking through a word ("denial") that was in the Online

Applications (but should not have been):

[1] Have you ever had any professional

license ( a driver's license is not a

professional license ) or professional

certificate , including a teaching

certificate, sanctioned by the issuing

agency in this or any state? Sanction is

defined to include: denial ; suspension;

revocation; discipline, such as issuance of

a reprimand or fine; or otherwise

conditioned, such as placed on any

restriction or probation. [2] Have you ever

resigned, surrendered, or otherwise

relinquished a professional license or

certificate in this or any state? Is there

any action pending in this or any state

against a professional license or

certificate that you hold or held? [3] Is

there any action pending in this or any

state against an application for a

professional license or certificate that you

have on file? (A determination of academic

ineligibility is not considered denial of a

license or certificate.)

A YES or NO answer is required by Florida

Law. If YES, you must give the information

requested for each sanction.

(Bracketed numbers added.)

6. The Commissioner of Education ("Commissioner"), as head

of the Department, decided that Filippi should not be permitted

to teach in Florida. Among the reasons for the Commissioner's

preliminary decision to deny Filippi's application for a

teaching certificate was the Commissioner's belief that Filippi

willfully had failed to disclose, in his applications for a

teaching certificate, certain material facts, including

information concerning the adverse actions that had been taken,

respectively, against his applications for licensure as a

teacher in the states of West Virginia and Pennsylvania.

7. In this proceeding, Filippi alleges that the question

regarding professional sanctions in the first application he

submitted was an invalid existing rule. Filippi asserts that

the question was invalid for several reasons. First, he argues

that the SBE lacks rulemaking authority to ask an applicant for

a teaching certificate about any previous professional sanctions

he might have suffered, much less about any adverse actions that

might be pending elsewhere against some other application(s) for

licensure of the applicant. Second, he contends that the

professional-sanctions question empowers the Department to deny

an application merely because of an action pending elsewhere

against another application of the applicant, even though such

pending action (of itself) would not authorize the Education

Practices Commission ("EPC") to revoke a teaching certificate.

Third, Filippi insists that the question regarding professional

sanctions was impermissibly vague.

8. With regard to the Online Applications, Filippi charges

that the SBE violated the rulemaking procedure prescribed in

Section 120.54, Florida Statutes, because (Filippi contends) the

question regarding professional sanctions in the Online

Applications constituted an agency statement meeting the legal

definition of the term "rule," which rule-by-definition (Filippi

claims) the SBE was required promptly to adopt formally as a

rule.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.56, 120.569, and 120.57(1), Florida Statutes, and

the parties have standing.

T HE E XISTING R ULE

10. In a challenge to an existing rule, the "petitioner

has [the] burden of proving by a preponderance of the evidence

that the existing rule is an invalid exercise of delegated

legislative authority as to the objections raised." See §

120.56(3)(a), Fla. Stat.

11. The Fundamental Rules of Decision 2

The starting point for determining whether an existing or

proposed rule is invalid is Section 120.52(8), Florida Statutes,

in which the legislature defined the term "invalid exercise of

delegated legislative authority." In this definition, the

legislature created a catalog of the salient defects which

distinguish rules that exceed an agency's delegated powers,

functions, and duties from those which do not. Pertinent to

this case are the following provisions:

A proposed or existing rule is an invalid

exercise of delegated legislative authority

if any one of the following applies:

* * *

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a)1; [or]

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

§ 120.52(8), Fla. Stat.

12. Also included in Section 120.52(8) is a concluding

the legislature expressed a clear intent to curb agency

rulemaking authority:

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agency's

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the same statute.

§ 120.52(8), Fla. Stat. The legislature enacted the very same

restrictions on rulemaking authority in Section 120.536(1),

Florida Statutes, apparently for emphasis.

13. The meaning of the flush-left paragraph was the

subject of a pair of influential appellate decisions, starting

with Southwest Fla. Water Mgmt. Dist. v. Save the Manatee Club,

Inc. , 773 So. 2d 594 (Fla. 1st DCA 2000). There, the First

District Court of Appeal considered a challenge to rule

provisions which granted exemptions to certain permitting

requirements based upon prior governmental approval. By

statute, the agency had been delegated the power to establish

exemptions, but the power was qualified: only exemptions that

did not "allow significant adverse [environmental] impacts to

occur" could be granted. Id. at 600.

14. Examining the then-recently revised flush-left

paragraph, the court found, as an initial matter, that the

language prohibiting agencies from adopting any rules except

those "that implement or interpret the specific powers and

duties granted by the enabling statute" is clear and

unambiguous. Id. at 599. The court observed that, "[i]n the

context of the entire sentence, it is clear that the authority

to adopt an administrative rule must be based on an explicit

power or duty identified in the enabling statute. Otherwise,

the rule is not a valid exercise of delegated legislative

authority." Id.

15. In the opinion's most memorable paragraph, the court

encapsulated its position as follows:

[T]he authority for an administrative rule

is not a matter of degree. The question is

whether the statute contains a specific

grant of legislative authority for the rule,

not whether the grant of authority is

specific enough. Either the enabling

statute authorizes the rule at issue or it

does not. [T]his question is one that must

be determined on a case-by-case basis.

Id. (underlining added). In other words, according to the

court, the relevant inquiry is whether the specific law being

implemented (the enabling statute) evinces a legislative intent

to grant the agency the specific power or specific duty behind

the subject rule. In answering this question, the specificity

of the enabling statute's terms is not the primary

consideration. (Obviously, however, specificity is a factor to

consider, inasmuch as a relative lack of specificity tends to

obscure legislative intent, whereas relative precision in

legislative draftsmanship tends to reveal such intent.)

16. Because, the court found, the exemptions at issue in

Manatee Club had been based "entirely on prior approval," and

because, moreover, the enabling statute did "not provide

specific authority for an exemption based on prior approval,"

the disputed rule provisions did "not implement or interpret any

specific power or duty granted in the applicable enabling

statute;" hence they were invalid. Id.

17. The first district revisited the flush-left paragraph

of Section 120.52(8), Florida Statutes, in Bd. of Trustees of

Internal Improvement Trust Fund v. Day Cruise Ass'n , 794 So. 2d

696 (Fla. 1st DCA 2001), clarified , rehr'g denied , question

certified , 798 So. 2d 847 (Fla. 1st DCA 2001), rev. denied , 823

So. 2d 123 (Fla. 2002). The proposed rule under attack in that

case would have forbidden the use of sovereignty submerged lands

for anchoring cruise ships engaged in carrying passengers on so-

called "cruises to nowhere"——legal gambling excursions. Id. at

697. A divided court held the challenged rule to be invalid on

two interrelated grounds, namely, that it (a) exceeded the

agency's rulemaking authority and (b) enlarged the specific

provisions of law purportedly implemented.

18. To make these determinations, the court defined the

specific power that the agency had exercised as being the

authority to "prohibit[] the use of sovereignty submerged lands

on account of lawful [gambling] activities on board ships at sea

which have no physical or environmental effect on sovereignty

submerged lands or adjacent waters." 794 So. 2d at 702. To

this the court added:

Although framed as a regulation of anchoring

or mooring, the proposed rule does not

regulate the mode or manner of mooring. It

does not govern the use of the bottom in any

way that protects its physical integrity or

fosters marine life. Instead it

deliberately and dramatically interferes

with certain kinds of commerce solely on

account of activities that occur many

leagues from any dock.

Id.

19. Upon examining the statutory grant of rulemaking

authority applicable specifically to sovereignty submerged

lands, the court concluded that a provision in the grant which

prohibited regulations that "interfere with commerce" qualified

the agency's power "in ways that are incompatible with the

adoption of the proposed rule." Id. at 702. Thus the proposed

rule was outside the agency's rulemaking authority.

20. The court next looked at the broad constitutional

grant of authority to the agency to acquire, administer, manage,

control, supervise, conserve, protect, and dispose of state

lands, including the sovereignty submerged lands. Id. at 703.

It found that "[n]one of the cited constitutional or statutory

provisions makes reference to, much less gives specific

instructions on the treatment of, the 'day cruise industry' or

contains any other specific directive that would provide the

support for the proposed rule that the [law] now requires." Id.

Driving this point home, the court continued that, despite the

breadth of the general language contained in the state

constitution,

[n]o provision listed as being implemented

in the proposed rule purports to authorize——

much less specifically to direct——the

[agency] to prohibit only certain vessels

from mooring on the basis of lawful

activities on board (possibly other) vessels

once they are on the high seas.

* * *

The provisions purportedly to be implemented

here are completely silent about day cruises

and about gambling and confer no authority

to bar day cruise vessels——or any other

vessels——from sovereignty submerged lands

based on lawful activities occurring outside

Florida’s territorial jurisdiction.

Id. at 703-04 (footnote omitted).

21. The court concluded, "In the absence of a specific

power or duty" which would enable or require "the [agency] to

regulate cruises to nowhere or to regulate gambling or to

regulate on the basis of activities occurring aboard vessels

after they leave sovereignty submerged lands and adjacent

waters, the [agency's] rule exceeds the [agency's] rulemaking

authority and is an invalid exercise of delegated legislative

authority as defined in section 120.52(8)(c) ." Id. at 704

(footnote omitted; emphasis in original).

22. Having studied the basic principles governing rule

challenges, it is time to look at the specific objections that

Filippi has raised.

23. On the Sufficiency of the SBE's Rulemaking Authority

Filippi complains that the professional-sanctions question

is ultra vires , that it is not within the scope of the

Department's rulemaking power. Before addressing the merits of

Filippi's position, it will be helpful first to structure a

decisional path based on the applicable legal principles, which

were reviewed above. Considering Section 120.52(8), subparts

(b) and (c), Florida Statutes, in conjunction with Manatee Club

and Day Cruise , supra , it is possible to articulate an

analytical framework for resolving questions regarding

rulemaking authority.

24. The threshold question is whether the agency has been

delegated the power to make rules. This issue will rarely be

disputed since most agencies have been granted general

rulemaking powers. See Day Cruise , 794 So. 2d at 702 (general

power to adopt rules "normally should be of little interest"

because almost all agencies have been given that). As both

Manatee Club and Day Cruise make clear, however, if the agency

has been empowered or directed specifically to make particular

rules or kinds of rules, it will be necessary, in determining

the specific powers or duties delegated to the agency, to pay

close attention to any pertinent restrictions or limitations on

the agency's rulemaking authority.

25. After it has been determined that the agency has the

necessary grant of rulemaking authority, the next question is:

What is the specific power or specific duty that the agency has

implemented or interpreted through the challenged rule?

Logically, one needs to know what to look for before searching

the enabling statute for the requisite grant.

26. The task of defining the specific power being

exercised is arguably the most crucial step in the process of

determining a rule's validity. How the exercised power is

defined will likely be outcome determinative in most cases . The

challenge is to define the power at the appropriate level of

generality, neither too narrowly nor too broadly, so that the

description of the exercised power accurately reflects the

rule's meaning and effect without transforming either. The

description of the power should be derived neutrally from the

rule's text, without considering (for this purpose) the

statutory grant of authority.

27. As an illustration of the importance——and potential

difficulty——of defining the specific agency power purportedly

being implemented, the case of Frandsen v. Dep't of Envtl.

Prot. , 829 So. 2d 267 (Fla. 1st DCA 2002), rev. denied , 845 So.

2d 889 (Fla. 2003), cert. denied , 540 U.S. 948, 124 S. Ct. 400,

157 L. Ed. 2d 279 (2003), is instructive. The rule at issue in

Frandsen regulated "free speech activities" (e.g. public

speaking, passing out pamphlets, performances, etc.) in public

parks. The agency had the authority to "'supervise, administer,

regulate, and control the operation of all public parks . . .'

and to 'preserve, manage, regulate, and protect all parks and

recreational areas held by the state . . . .'" Id. at 269

(quoting § 258.004, Fla. Stat. (1999)). The court found that

the rule "falls under [this] specific grant of authority and is

otherwise" valid. Id.

28. The court, however, did not expressly define the

specific power being exercised through the rule or otherwise

explain how the rule implemented or interpreted such a power.

(Most of its opinion concerns the First Amendment challenge to

the rule's constitutionality.) Yet the proper definition of the

power, at the level of generality that the rule's text warrants,

is not self-evident. By "zooming in" on the rule and defining

the power at a low level of generality, as was done in Day

Cruise (which decision the Frandsen court cited with approval),

the power that the agency implemented could reasonably be

described as the authority to regulate speech or other

expressive conduct occurring in a public park. Because the

enabling statue is silent about free speech activities, just as

the grants of authority examined in Day Cruise were silent about

"cruises to nowhere," defining the power thusly might drive a

decision that the free speech rule is invalid.

29. Or it might not. The conduct being regulated by the

rule in Frandsen is arguably distinguishable from the gambling

activities which the proposed rule in Day Cruise sought to

curtail. For the free speech rule, unlike the proposed gambling

ship regulation, only reaches activities taking place on the

lands within the agency's jurisdiction, whereas the proposed

rule directed at "cruises to nowhere" would have affected

conduct occurring outside of, and having no effect on, the lands

within the agency's jurisdiction. The difference between

regulating the properties and facilities comprising public

parks, on the one hand, and regulating free speech activities

in, on, or making use of such properties and facilities, on the

other, might fairly be considered a matter of degree. On that

basis, the decision in Frandsen can be squared with Day Cruise .

30. The question whether the free speech rule at issue in

Frandsen implemented a specific power delegated to the agency is

a closer one than the court's opinion suggests. The court made

the answer seem obvious by not stating the agency power being

exercised. As shown above, however, had the power been stated

at a level of generality supported by the rule's text, the rule

could conceivably have been invalidated on the authority of

Manatee Club and Day Cruise without doing violence to the

principles underlying either of those decisions. The point is

not to criticize Frandsen , for the decision in that case is

consistent, too, with Manatee Club and Day Cruise ; it is to

demonstrate the importance, which cannot be gainsaid, of

identifying and accurately stating the power being exercised

through the rule under review.

31. The next analytical step, once the specific power

being implemented has been defined, is to examine the enabling

statute to determine whether the specific power or duty, as

defined, is among the specific powers or duties delegated to the

agency by the legislature. This entails the "difficult task" of

identifying and defining "the kind of delegation that is

sufficient to support a rule." St. Johns River Water Mgmt.

Dist. v. Consolidated-Tomoka Land Co. , 717 So. 2d 72, 79 (Fla.

1st DCA 1998)(italics in original).

32. Unfortunately, less judicial attention has been paid

to defining the kind of enabling statute that is sufficient to

support a rule than to pointing out, with regard to enabling

statutes, that which is either insufficient or unnecessary.

Thus, for example, it is now axiomatic that a delegation is

insufficient to support a rule if it merely prescribes a class

of powers and duties. "An administrative rule must fall within

the class of powers and duties delegated to the agency, but that

alone will not make the rule a valid exercise of legislative

power." Manatee Club , 773 So. 2d 599.

33. A similarly well settled proposition holds that it is

unnecessary for an enabling statute to be detailed. The court

reached this conclusion in Manatee Club , just as it had in

Consolidated-Tomoka in a "part of [that] decision [which]

appears to have survived" subsequent legislation. See Manatee

Club , 773 So. 2d at 599. The surviving piece of Consolidated-

Tomoka provides in pertinent part as follows:

In our view, [the since-amended, 1996

version of the flush-left paragraph, which

is no longer the law,] restricts rulemaking

authority to subjects that are directly

within the class of powers and duties

identified in the enabling statute. It was

not designed to require a minimum level of

detail in the statutory language used to

describe the powers and duties.

Consolidated-Tomoka , 717 So. 2d at 79 (emphasis added).

34. Fortunately, the available guidance is not all

negative in nature. In Manatee Club , the court taught, in an

affirmative way, that the enabling statute "must contain a

specific grant of legislative authority for the rule . . . ."

773 So. 2d at 599 (emphasis added). Or, as the court put it

another way, "it is clear that the authority to adopt an

administrative rule must be based on an explicit power or duty

identified in the enabling statue." Id. (emphasis added).

Taking these positive statements together, which tell what is

required for a delegation of legislative authority to be

sufficient to support a rule, it is concluded that the flush-

left paragraph, in its present form, restricts rulemaking

authority to:

(a) specific (or explicit) powers and

duties

(b) whose distinguishing characteristics

(i.e. the features that make the power

specific and not merely categorical )

(c) are established ("identified"), that

is, actually present ("contained"), in the

enabling statute.

35. In this third stage of the analysis, then, having at

the second step defined the specific power being exercised (and,

in the process, revealed its distinguishing characteristics),

the question is whether the enabling statute either explicitly

or implicitly (if ordinary rules of statutory construction

permit such an inference) includes within its provisions the

characteristics that give the specific power its identity (or at

least enough of such characteristics to support the conclusion

that the delegated power and the exercised power are identical ),

thereby evincing an intent to confer the specific power on the

agency.

36. The last question, assuming the enabling statute

delegates the specific power or duty being exercised, is whether

the rule at issue actually implements or interprets such power

or duty, for a rule, to be valid, must implement or interpret

the specific powers granted. If, however, the specific power or

duty was properly defined earlier in the analysis, and if,

further, the specific power or duty, as defined, was properly

located in the enabling statute, then the conclusion here will

probably be foregone.

37. The foregoing legal frame of reference can now be used

to determine whether the question regarding professional

sanctions is within the Department's rulemaking authority.

38. The first question is whether the SBE has been granted

general rulemaking powers. The answer is yes . See , e.g. , §

1001.02(1), Fla. Stat. (The SBE "has authority to adopt rules

pursuant to ss. 120.536(1) and 120.54 to implement the

provisions of law conferring duties upon it . . . ."); §

1001.02(2)(n), Fla. Stat. (The SBE has the duty to "adopt

cohesive rules pursuant to ss. 120.536(1) and 120.54, within

statutory authority."); and § 1001.03(3), Fla. Stat. ("The State

Board of Education shall . . . establish competencies, including

. . . certification requirements for all school-based personnel,

and prescribe rules in accordance with which the professional,

temporary, and part-time certificates shall be issued by the

Department of Education to applicants who meet the standards

prescribed by such rules[.]"). Clearly the SBE possesses the

necessary general grant of rulemaking authority.

39. Consequently, it is necessary to take the second

analytical step, which entails defining the specific power or

duty being exercised through the professional-sanctions

question. Taking full account of the question's meaning and

effect, it is determined that the specific power which the SBE

has exercised is the power to ask each applicant for a teaching

certificate to disclose the existence of, and some basic facts

concerning: (a) any past disciplinary measures taken against

the applicant in his capacity as a professional licensee; (b)

any disciplinary proceedings currently pending against the

applicant in his capacity as a professional licensee; and (c)

any measures currently being taken in response to an application

of the applicant for a professional license, as a result of

which such application is in danger of being disapproved.

40. The next question, then, is whether this particular

power is among the specific powers and duties that the

legislature has granted to the SBE. In this regard, Section

1012.55(1), Florida Statutes, imposes on the SBE certain duties,

providing in pertinent part as follows:

The State Board of Education shall . . .

establish competencies, including . . .

certification requirements for all school-

based personnel, and adopt rules in

accordance with which the professional,

temporary, and part-time certificates shall

be issued by the Department of Education to

applicants who meet the standards prescribed

by such rules for their class of service.

41. In exercising its specific statutory duty to establish

certification requirements, the SBE must follow Section 1012.56,

Florida Statutes, which prescribes the minimum requirements for

obtaining a teaching certificate. This statute provides, in

relevant part, as follows:

(2) ELIGIBILITY CRITERIA.--To be eligible

to seek certification, a person must:

(a) Be at least 18 years of age.

(b) File an affidavit that the applicant

subscribes to and will uphold the principles

incorporated in the Constitution of the

United States and the Constitution of the

State of Florida and that the information

provided in the application is true,

accurate, and complete. The affidavit shall

be by original signature or by electronic

authentication. The affidavit shall include

substantially the following warning:

WARNING: Giving false information in order

to obtain or renew a Florida educator's

certificate is a criminal offense under

Florida law. Anyone giving false

information on this affidavit is subject to

criminal prosecution as well as disciplinary

action by the Education Practices

Commission.

(c) Document receipt of a bachelor's or

higher degree from an accredited institution

of higher learning, or a nonaccredited

institution of higher learning that the

Department of Education has identified as

having a quality program resulting in a

bachelor's degree, or higher. Each

applicant seeking initial certification must

have attained at least a 2.5 overall grade

point average on a 4.0 scale in the

applicant's major field of study. The

applicant may document the required

education by submitting official transcripts

from institutions of higher education or by

authorizing the direct submission of such

official transcripts through established

electronic network systems. The bachelor's

or higher degree may not be required in

areas approved in rule by the State Board of

Education as nondegreed areas.

(d) Submit to background screening in

accordance with subsection (9). If the

background screening indicates a criminal

history or if the applicant acknowledges a

criminal history, the applicant's records

shall be referred to the investigative

section in the Department of Education for

review and determination of eligibility for

certification. If the applicant fails to

provide the necessary documentation

requested by the department within 90 days

after the date of the receipt of the

certified mail request, the statement of

eligibility and pending application shall

become invalid.

(e) Be of good moral character.

(f) Be competent and capable of performing

the duties, functions, and responsibilities

of an educator.

(g) Demonstrate mastery of general

knowledge, pursuant to subsection (3).

(h) Demonstrate mastery of subject area

knowledge, pursuant to subsection (4).

(i) Demonstrate mastery of professional

preparation and education competence,

pursuant to subsection (5).

§ 1012.56(2), Fla. Stat.

42. In addition to setting forth eligibility criteria,

Section 1012.56 specifies grounds for denying an application, as

follows:

The Department of Education may deny an

applicant a certificate if the department

possesses evidence satisfactory to it that

the applicant has committed an act or acts,

or that a situation exists, for which the

Education Practices Commission would be

authorized to revoke a teaching certificate.

§ 1012.56(11)(a), Fla. Stat.

43. The acts or situations for which the EPC is authorized

to revoke a teaching certificate are enumerated in Section

1012.795(1), Florida Statutes, which authorizes the EPC to take

disciplinary action (including revocation of a guilty teacher's

certificate) against a certified teacher who:

(a) Obtained or attempted to obtain an

educator certificate by fraudulent means.

(b) Has proved to be incompetent to teach

or to perform duties as an employee of the

public school system or to teach in or to

operate a private school.

(c) Has been guilty of gross immorality or

an act involving moral turpitude.

(d) Has had an educator certificate

sanctioned by revocation, suspension, or

surrender in another state.

(e) Has been convicted of a misdemeanor,

felony, or any other criminal charge, other

than a minor traffic violation.

(f) Upon investigation, has been found

guilty of personal conduct which seriously

reduces that person's effectiveness as an

employee of the district school board.

(g) Has breached a contract, as provided in

s. 1012.33(2).

(h) Has been the subject of a court order

directing the Education Practices Commission

to suspend the certificate as a result of a

delinquent child support obligation.

(i) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

(j) Has otherwise violated the provisions

of law, the penalty for which is the

revocation of the educator certificate.

(k) Has violated any order of the Education

Practices Commission.

(l) Has been the subject of a court order

or plea agreement in any jurisdiction which

requires the certificateholder to surrender

or otherwise relinquish his or her

educator's certificate. A surrender or

relinquishment shall be for permanent

revocation of the certificate. A person may

not surrender or otherwise relinquish his or

her certificate prior to a finding of

probable cause by the commissioner as

provided in s. 1012.796.

44. The SBE's specific authority with regard to the

establishment of certification requirements must be determined

based on a reading together of Sections 1012.55, 1012.56, and

1012.795, Florida Statutes, which are, on the common subject of

such requirements, in pari materia ; 3 these enabling statutes,

taken as a whole, either authorize the professional-sanctions

question, or they do not.

45. There can be no reasonable disagreement with the

proposition that, in exercising its specific duty to establish

certification requirements, the SBE is authorized (indeed

required) to create an application designed to identify

applicants who meet such requirements——and to weed out those who

do not. See § 1012.56(1), Fla. Stat. (requiring each person

seeking a teaching certificate to submit a completed application

therefor). As a matter of logic, therefore, it follows that the

SBE is specifically empowered to ask applicants, in the

application, not only about any of the statutory eligibility

criteria, but also about acts or situations which, if known to

the Department, would afford a basis for denial of an

application.

46. Some of the eligibility (and disqualifying) criteria

lend themselves to straightforward questions. For example, an

application may be denied if the applicant has had a teaching

certificate "sanctioned by revocation, suspension, or surrender

Stat. To the extent the professional-sanctions question merely

asks the applicant to disclose a direct basis for denial , such

as whether he has had a teaching certificate sanctioned by

revocation, suspension, or surrender in another state, the

question is clearly within the SBE's specific powers and duties.

47. Other eligibility (and disqualifying) criteria are

less amenable to direct questions. Asking an applicant directly

whether he is of good moral character, for example, or competent

and capable of performing the duties, functions and

responsibilities of a teacher, is unlikely to uncover any useful

information; after all, few applicants (one hopes) believe they

themselves are immoral or incompetent, and very few (if any) of

those who do would honestly admit to being either. Obviously,

in reference to matters, such as character and competence, which

require the Department to make judgment calls about an

applicant, what must be learned through the application are

basic objective facts from which ultimate determinations (e.g.

the applicant appears to be of good moral character) can be

made.

48. In complaining that the SBE has exercised authority it

doesn't have in asking about professional sanctions, Filippi has

completely overlooked that some matters simply must be inquired

about indirectly, if useful information is to be obtained. The

undersigned concludes that just as the SBE is specifically

empowered to ask directly about any matter that is statutorily

required for certification, or that would be a direct basis for

denial of an application, so too is the SBE authorized

specifically to inquire indirectly about all such matters, at

least to the extent such indirect questions are calculated to

discover markers for the presence of eligibility (or

disqualifying) criteria.

49. As it happens, this case does not present any close or

difficult issues, for the professional-sanctions question is

safely within the limits of the SBE's authority to inquire. 4

This is because, insofar as the matters inquired about in the

professional-sanctions question are not direct grounds for

denial, they are clearly markers for such grounds. Past

discipline or a pending disciplinary action, for example,

reveals at a minimum that the applicant has gotten into

sufficient trouble to draw the attention of a regulatory agency,

which is the sort of thing that marks a person as possibly

having c haracterological defects that ought to be investigated.

And apart from that, the underlying acts or situations that led

to the prior discipline or pending disciplinary proceeding,

about which the Department might not learn without posing the

professional-sanctions question (or something like it), could be

grounds themselves for denial of the application.

50. The same can be said about the specific query

involving actions pending against an application. The very fact

that another licensing authority has singled out an applicant's

application for the purpose of taking some adverse action

signals that something about the applicant's background or

credentials is possibly amiss. Whatever that something is ought

to be investigated, because persons whose other applications

have been marked for disapproval might have problems that would

counsel against the issuance of a Florida teaching certificate

as well.

51. In summary, the undersigned concludes, based on a

reading together of Sections 1012.55, 1012.56, and 1012.795,

Florida Statutes, that the legislature intended to empower the

SBE with the specific authority to ask teaching-certificate

applicants to disclose any past professional sanctions, pending

disciplinary proceedings, and any actions pending in response to

an application for professional licensure which reflect a

negative view of such application.

52. It is concluded, finally, that the professional-

sanctions question does implement a specific power or duty

delegated by the enabling statutes. Accordingly, because the

question meets the criteria specified in the flush-left

paragraph, it comes within the SBE's rulemaking authority.

On Whether the Professional-Sanctions

Question Enlarges or Modifies the Law Implemented

53. Filippi argues that the professional-sanctions

question provides the Department with authority to deny an

application if the applicant either (a) has had a professional

license "merely reprimanded or conditioned" in another state, or

(b) is currently a party to an action against an application for

a professional license. This alleged authority, according to

Filippi, enlarges or modifies Section 1012.795(1)(d), Florida

Statutes, which authorizes the EPC to revoke a teaching

certificate if the holder has surrendered a similar certificate

in another state, or had one revoked or suspended——but not for

any lesser or different sanctions, and not on the basis of

actions taken against applications (as opposed to certificates

or licenses).

54. Contrary to Filippi's argument, however, the

professional-sanctions question does not confer any authority on

the Department, either expressly or by necessary implication, to

deny an application on the basis of matters not specified in the

statutes. The question, rather, merely asks for information

that, while not necessarily disqualifying per se, usually would

suggest the presence of a possibly disqualifying problem.

55. To illustrate, the fact that an action is pending in

another state against the applicant's application in that state

for a professional license would not , of itself, be a basis for

the Department to deny his Florida application, and nothing in

the professional-sanctions question provides otherwise. On the

other hand, the reason for that action might be. (Suppose, for

example, the other state's licensing authority believes the

applicant is not competent to teach. If the Department agrees

with that assessment, after independently reviewing the

situation, then it should deny the application, not because of

the other state's action, but because the applicant is

incompetent.) In short, the Department is trying to discover

facts which, having previously come to the attention of another

licensing agency, have caused concern about the applicant.

Facts that have caused such concern elsewhere obviously are (and

should be) of interest to the Department.

56. It is concluded that the professional-sanctions

question does not enlarge or modify any of the provisions of law

implemented.

On Whether the Professional-Sanctions Question Is Vague

57. Filippi advances a number of arguments in support of

his contention that the professional-sanctions question——and

particularly the subpart thereof which asks about "any action

pending . . . against an application" (the "Troubled Application

Question")——was vague, ambiguous, and confusing. It is not

necessary here to examine in detail Filippi's contentions

regarding the alleged opacity of the Troubled Application

Question or the professional-sanctions question as a whole.

Suffice to say that while the professional-sanctions question is

not an example of skillful draftsmanship, neither is it

incomprehensible. Filippi has a point, in other words, but he

tries to make entirely too much of it.

58. Upon being read for the first time, for example, the

Troubled Application Question could cause a reasonable applicant

who has applied previously for a certificate or has such an

application pending somewhere to pause and think about what is

being asked. It is conceivable too that, as Filippi argues, an

applicant might ponder whether an action pending against an

application——or even the denial thereof——constitutes a

"sanction." (Although it is conceivable , the undersigned

believes that very few ordinary applicants actually would draw

the technical legal distinction between a disciplinary sanction

against a license, on the one hand, and the regulatory denial of

an application, on the other. The undersigned is fairly

confident that the term "sanction," as used in everyday

discourse, is broad enough to include the denial of an

application for professional licensure within its range of

customary meanings.) Or, as Filippi also insists, an applicant

might possibly stumble over the "compound" nature of the

professional-sanctions question, with its several subparts.

59. It is difficult to imagine, however, that a reasonable

applicant ultimately would be stymied by the professional-

sanctions question, after giving it some careful attention and

thought. At bottom, given a fair reading, the Troubled

Application Question requires an affirmative answer if any

application of the applicant, owing to a potentially fatal flaw,

has been culled from the batch of applications moving through

the pipeline towards approval and identified as problematic.

The key words are: (a) "action pending ," which reasonably

denotes both (i) a continuing, as yet unfinished proceeding

(e.g. an administrative appeal), and (ii) an impending act (e.g.

a decision expected to come soon); and (b) "action . . . against

an application," which reasonably means that the posture of the

ongoing proceeding or imminent decision is unfavorable (or in

opposition) to the application. (Emphasis added.) Any

application which is the object of a "pending" action that is

also "against" the application is, by any reasonable measure, an

application in trouble. A reasonable applicant should be able

to figure out, without too much difficulty, that such an

application must be disclosed.

60. The test for determining the vagueness of an

administrative rule is whether persons of common understanding

and intelligence must guess at its meaning. See State, Dep't of

Health & Rehabilitative Services v. Health Care & Retirement

Corp. , 593 So. 2d 539, 541 (Fla. 1st DCA 1992). The

professional-sanctions question, though it might be clumsily

worded, is yet not so obscure that ordinary people must guess at

its meaning. The question is not, therefore, invalid for

vagueness pursuant to Section 120.52(8)(d), Florida Statutes.

T HE A LLEGED U NADOPTED R ULE

61. Filippi alleges that the form he used for his Online

Applications was an unadopted rule because, in December 2004,

the SBE had amended Florida Administrative Code Rule 6A-

4.0012(1)(a) so as to incorporate by reference an updated

version of the application form, which updated form the

Department mistakenly failed to post online for nearly two

years. Pursuant to Section 120.56(4), Florida Statutes, Filippi

contends that the Department's failure to update the online

version of the teaching-certificate application violated Section

120.54(1)(a), Florida Statute, which provides that each agency

statement defined as a "rule" must be formally adopted as soon

as feasible and practicable.

62. The threshold question that Filippi's challenge raises

is whether the outdated online form was a "rule" as that term is

statutorily defined. The definition is found in Section

120.52(15), Florida Statutes, which provides in relevant part as

follows:

"Rule" means each agency statement of

general applicability 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.

(Emphasis added.)

63. As a form which solicits information not specifically

required by statute, the outdated application certainly could be

a rule-by-definition. But under the somewhat unusual facts of

this case, such a conclusion would be unwarranted, as will be

explained.

64. Suppose that an agency official in good faith informs

an applicant that, to be approved for licensure, he needs to do

"X." Suppose, however, that the official is mistaken: the

agency has an applicable rule which does not , in fact, require

X, and, moreover, it is undisputed that the agency never

intended to require X. It is clear to the undersigned that the

statement, "You must do X to obtain a license," while appearing

to be a rule-by-definition, is not a "rule" because it does not

declare law or agency policy. An erroneous statement should not

be elevated to the status of a rule unless the agency has

enforced the statement or otherwise knowingly allowed it to

operate as a rule, in which latter event the agency conduct, by

making the statement effective , would belie any subsequent

characterization of the statement as a "mistake."

65. Expanding the foregoing hypothetical will illustrate

the point. Suppose the same facts as above, except that, when

the time comes to make a decision, the agency announces its

intent to deny the application because the applicant did not

meet the requirement X. If the applicant requests a substantial

interests hearing and the agency thereafter insists that the

requirement to do X is a condition of licensure, then the agency

has taken ownership of the statement, at which point the

statement might well be found to constitute a rule-by-

definition, even if it were born of a mistake.

66. Suppose however that, in attempting to meet the

requirement X, the applicant intentionally lied to the agency

and represented that he had done X when in fact he had not. If

the agency discovers the deception and announces its intent to

deny the application because the applicant attempted to obtain a

license by fraudulent means, is its position tantamount to

adopting, as agency policy, the original, mistaken statement,

"You must do X"? Or could the agency, consistent with its

intended denial, nevertheless maintain that X was not actually a

requirement and hence the statement "do X" not a rule-by-

definition?

67. The undersigned concludes that there is no logical

inconsistency between (a) disowning the statement, "You must do

X," as an erroneous statement that does not reflect agency

policy, and (b) denying licensure to an applicant who, when

required (mistakenly) to do X, fraudulently reports that he has

done X when he has not. Position (a) would be logically

inconsistent, however, with (c) denying licensure to an

applicant for failing to do X. This is because position (c)

amounts to enforcement of the statement requiring X, which is

inconsistent with disowning the statement. In contrast,

position (b) does not amount to enforcing the statement

requiring X; rather, position (b) rests on the enforcement of a

separate and independent duty of the applicant: to tell the

truth (or, stated negatively, not to use fraudulent means to

obtain a license).

68. Here, the outdated online form remained available for

use by applicants such as Filippi because of a mistake. Neither

the SBE nor the Department intended that applicants should use

the old form. As soon as the mistake was discovered, the online

form was updated to conform to the then-current form, which had

been duly adopted as a formal rule.

69. The undersigned concludes that the outdated form, like

the hypothetical statement, "You must do X," in the first

example above, was merely a mistake——nothing more. The old form

did not declare law or agency policy. Indeed, the SBE would not

have adopted the old form in accordance with the rulemaking

mandate of Section 120.54(1)(a), Florida Statutes, had it known

the old form remained (erroneously) in use, because it did not

want the old form to be used any longer. The notion that the

SBE should have adopted its outdated form as a rule (which

underlies Filippi's challenge) is nonsensical.

70. There is, moreover, no evidence in the record

suggesting that either the SBE or the Department ever

deliberately took action to enforce or otherwise make operative

the challenged provisions (i.e. the professional-sanctions

question) of the outdated form, to the extent such provisions

differed from the corresponding provisions of the current,

adopted form. 5 (It is not clear that such enforcement could have

occurred, in any event, because the substantive difference

between the old professional-sanctions question and the new one

was the addition (in the new application) of a subpart that

asked about actions pending against a license. In other words,

the new application was more inquisitive than the old one, and

hence the Department's failure consistently to use the new form

was detrimental only to the Department.)

71. The upshot is that the outdated form was not a "rule."

For that reason, the Department's failure to update the online

application form did not violate Section 120.54(1)(a), Florida

Statutes.

72. That said, however, even if an erroneous statement,

which neither declared law or policy nor was given effect as

such, can be deemed a rule-by-definition, the undersigned still

would conclude that Section 120.54(1)(a) was not violated in

this instance, for the reasons which follow.

73. As a starting point, the undersigned believes it is

self-evident, and therefore he concludes, that the outdated form

could be an "unadopted" rule only to the extent that its terms

and/or meaning differed from the terms and/or meaning of the

updated, adopted form. For example, if the updated form

incorporated, say, 90 percent of the form it was intended to

replace, then only ten percent (or so) of the outdated form

could possibly be considered an "unadopted" rule.

74. Here, Filippi challenges only the professional-

sanctions question as an unadopted rule. The version of this

question that appears in the outdated form (the alleged

"unadopted" rule) is substantially similar to the version that

appears in the updated form. The one substantive difference

between the two, as mentioned above, is that the updated

professional-sanctions question contains an additional subpart,

making it more inquisitive. (The few other differences merely

fine-tune the language in ways that do not materially change the

substance of the professional-sanctions question.) Put another

way, the outdated form is different from the revised version,

not for what it says, but largely because of what it does not

say.

75. Consequently, applicants who applied online between

December 2004 and October 2006, unlike applicants who submitted

applications on paper during this period, were not asked about

actions pending against other licenses they might have held.

The Department's failure to ask some applicants this question,

which was in essence a failure to follow Rule 6A-4.0012(1)(a),

might have been unfair (to applicants who applied on paper) and

might have afforded an aggrieved applicant (presumably one who

had applied on paper) a basis for complaint. But under the

circumstances of this case, the undersigned concludes that the

Department's not asking online applicants the question about

pending disciplinary proceedings——this agency silence ——cannot be

viewed as an agency statement .

76. Because it was not an "agency statement," the

Department's failure to ask online applicants about actions

pending against other licenses they might have held was not a

"rule" under Section 120.52(15), Florida Statutes.

A TTORNEY ' S F EES AND C OSTS

77. Pursuant to Section 120.595(3), Florida Statutes, the

undersigned is required to award reasonable costs and reasonable

attorney's fees to the agency for successfully defending a

challenge to an existing rule if he determines that the opposing

party brought the rule challenge for an "improper purpose." See

§ 120.595(3), Fla. Stat. In this context, the term "improper

purpose" means "participation in a proceeding . . . primarily to

harass or to cause unnecessary delay or for frivolous purpose or

to needlessly increase the cost of litigation, licensing, or

securing the approval of an activity." § 120.595(1)(e)1., Fla.

Stat. (emphasis added).

78. The undersigned finds that Filippi brought the instant

action primarily for the purpose of increasing his chances of

obtaining a teaching certificate. Therefore, he did not

participate herein for an "improper purpose" as defined by

Section 120.595(1)(e), Florida Statutes. Accordingly,

attorney's fees and costs shall not be awarded to the Department

or the SBE.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the revised application, which was duly

adopted as a rule, is not an invalid exercise of delegated

legislative authority; and that the outdated application, which

was mistakenly made available to online applicants for a time

after the adoption of the revised form, was not an unlawful

unadopted rule.

DONE AND ORDERED this 20th day of June, 2008, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

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 20th day of June, 2008.

ENDNOTES

1 / While this proceeding was pe nding, Eric J. Smith, Ph.D.,

succeeded Mr. Winn as Florida's Co mmissioner of Education.

2 / An expanded discussion of this topic appears in Home Delivery

Incontinent Supplies Co., Inc. v. Agency For Health Care

Administration , No. 07-4167RX, 2008 Fla. Div. Adm. Hear. LEXIS

205, *11-*26 (Apr. 18, 2008).

3 / See , e.g. , Mehl v. State , 632 So. 2d 593, 595 (Fla.

1993)(separate statutory provisions that are in pari materia

should be construed to express a unified legislative purpose);

Lincoln v. Florida Parole Commission , 643 So. 2d 668, 671 (Fla.

1st DCA 1994)(statutes on same subject and having same general

purpose should be construed in pari materia ).

4 / To be sure, the undersigned can imagine questions that would

Suppose, for example, there was a question on the application

that asked: Do you look at pornography on the internet? If

yes, identify the sites that you visit, the frequency of your

visits, and the approximate number of hours per week you spend

engaged in this activity. Whether such a question would be

permissible the undersigned obviously need not decide in this

case, but the pornography inquiry is problematic in ways that

the professional-sanctions question is not. While an

applicant's consumption of internet pornography might be a

marker for the presence of eligibility or disqualifying criteria

( e.g. the ones relating to morality), inquiring into such a

matter would implicate privacy concerns that the professional-

sanctions question does not raise. The pornography question is

therefore a different kind of question, and deciding whether it

falls within the SBE's specific authority to inquire would be

much more difficult than is the resolution of the issues at

hand.

5 / The Department did allege (and prove), in Case No. 07-4628,

that Filippi had given false and fraudulent answers to the

Troubled Application Question. That, however, did not amount to

enforcement of the Troubled Application Question, but rather

vindicated the separate and independent duty, arising from §

1012.56(2)(b), Fla. Stat., of applicants to tell the whole

truth. Further, the Troubled Application Question is common to

both the outdated application and the revised (adopted)

application. Therefore, it was not in any meaningful sense

"unadopted."

COPIES FURNISHED:

Timothy P. Atkinson, Esquire

Gavin D. Burgess, Esquire

Oertel, Fernandez, Cole & Bryant

Post Office Box 1110

Tallahassee, Florida 32302-1110

Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316-1924

Deborah K. Kearney, General Counsel

Department of Education

1244 Turlington Building

Tallahassee, Florida 32399-0400

Scott Boyd, Executive Director/General Counsel

Joint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300

Dr. Eric J. Smith, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Liz Cloud, Program Administrator

Administrative Code

Department 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 proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the 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.