11-005078RX Michelle Hatley vs. Department Of Education Status: Closed DOAH Final Order on Friday, May 25, 2012.

Summary: Revised rule challenge petition failed to specify supportable grounds to invalidate existing rule 6A-4.0021(6)(c)1.; motion for summary final order granted and rule challenge dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELLE HATLEY , )

)

Petitioner , )

)

vs. ) Case No. 11 - 5078RX

)

DEPARTMENT OF EDUCATION , )

)

Respondent . )

)

SUMMARY FINAL ORDER OF DISMISSA L

Petitioner initiated this proceeding pursuant to section

120.56, Florida Statutes (2011), 1/ to challenge the validity of

Florida Administrative Code Rule 6A - 4.0021(6)(c)1. (Rule

Challenge). Respondent filed a motion for summary final order

(Motion) ass erting that there are no disputed issues of material

fact and that Respondent is entitled to a final order in its

favor as a matter of law. For the reasons stated herein, the

undersigned is persuaded by Respondent ' s unrefuted arguments.

APPEARANCES

For Pe titioner: Colleen C. Sachs, Esquire

Sachs and La Seur, P.A.

Building 4

1394 County Highway 283 South

Santa Rosa Beach, Florida 32459 - 5789

For Respondent: Brent McNeal, Esquire

Department of Education

Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

STATEMENT OF THE ISSUE

The issue in this case is whether rule 6A - 4.0021(6)(c)1. i s

invalid because Respondent exceeded its grant of rulemaking

authority, as alleged by Petitioner.

PRELIMINARY STATEMENT

On October 4, 2011, Petitioner, Michelle Hatley

(Petitioner), filed directly with the Division of Administrative

Hearings (DOAH) a 16 - page pleading entitled , " Petition for

Administrative Hearing Pursuant t o §120.57, Fla. Stat. "

(Petition). In large part, the focus of the Petition was on

allegations that Respondent, Department of Education

(Respondent), violated the Americans with Disabi lities Act (ADA)

by not making sufficient accommodations for Petitioner ' s visual

impairment disability when she took portions of the Florida

teacher ' s certification exam and did not pass one part. For

this alleged violation, the Petition sought remedies p ursuant to

section 760.11, Florida Statutes, including damages and

attorney ' s fees.

In addition, the Petition sought to challenge Respondent ' s

proposed agency action that addressed the accommodations

Respondent would provide in the future for Petitioner t o retake

the portion of the exam she did not pass. Respondent ' s proposed

agency action agreed to provide some, but not all , of the

accommodations requested by Petitioner.

The Petition also sought to challenge rule

6A - 4.0021(6)(c)1. 2/ " based on its inco nsistency with the [ADA],

and . . . the department ' s interpretation and application of

that rule. " The Petition did not contain allegations that the

challenged rule was an invalid exercise of delegated legislative

authority pursuant to any of the grounds enumerated in section

120.52(8).

Shortly after the Petition was filed, a telephone

conference was conducted with counsel for both parties to

address scheduling. In that telephone conference, the

undersigned expressed concern s that the Petition, filed di rectly

with DOAH as a Rule Challenge, appeared to be primarily drafted

to challenge past and proposed agency action. Counsel for

Petitioner represented that a separate petition challenging

agency action had been or was about to be filed with Respondent.

The parties agreed that the Rule Challenge should be held in

abeyance to allow the separate petition challenging agency

action to be forwarded to DOAH and that the two proceedings

should be consolidated for hearing.

The separate petition arrived at DOAH o n October 25, 2011,

and was assigned Case No. 11 - 5479. The cases were consolidated

and scheduled for hearing. However, a review of the files

revealed that Petitioner had filed the identical petition with

Respondent to challenge its proposed agency action (Proposed

Agency Action Challenge) as had been filed with DOAH to initiate

the Rule Challenge. As such, not only did the Rule Challenge

Petition include allegations challenging the proposed agency

action, but also the Proposed Agency Action Challenge Pet ition

included allegations challenging an existing rule. Moreover,

both petitions included extraneous allegations not material to

either the Rule Challenge or the Proposed Agency Action

Challenge.

To address these pleading matters, an Order to Petitioner

to Show Cause was issued on November 2, 2011 (Show Cause Order).

The Show Cause Order suggested that: (1) the Rule Challenge

Petition was insufficient to meet the pleading requirements of

section 120.56; (2) the Proposed Agency Action Challenge

Petition was confusing , because it was the same as the Rule

Challenge Petition, when it should instead focus on the grounds

for challenging Respondent ' s proposed agency action; and

(3) neither P etition should include extraneous allegations

purporting to invoke rem edies under chapter 760 for redress of

an alleged past failure to accommodate Petitioner ' s disability,

because th ose allegations ha ve to be presented first to the

Florida Commission on Human Relations for an initial

investigation and determination of whet her there is reasonable

cause to believe there wa s a violation , before Petitioner c an

seek an administrative hearing . See § 760.11. Petitioner was

ordered to respond and/or file amended separate petitions in

each of the two pending proceedings, excising from both

petitions the improperly presented " failure to accommodate "

complaint. Respondent was afforded an opportunity to reply

following Petitioner ' s response to the Show Cause Order.

On November 17, 2011, Petitioner belatedly filed a r esponse

to which Petitioner attached a revised consolidated petition

without any title, but with both case numbers appearing in the

caption (Revised Consolidated Petition). The Revised

Consolidated Petition continued to combine allegations

challenging the validity of an existing rule with allegations

challenging the proposed agency action, but revised the Rule

Challenge contents and added specific new allegations setting

forth the grounds for the Rule Challenge. Some, but not all, of

the extraneous allegations and prayer s for relief were removed.

Petitioner asserted the right to file a combined pleading based

on case authority authorizing a party to raise a challenge to an

existing rule within a challenge to the proposed agency action,

instead of initiating separate proc eedings. 3/

Respondent did not file a reply. While the Revised

Consolidated Petition remains confusing by combining allegations

for two separate proceedings and by retaining some extraneous

allegations not germane to either proceeding, the undersigned

cho se to not press the issue further, taking Respondent ' s

failure to reply as an indication that Respondent was able to

sort out the allegations sufficiently to proceed. Thus, the

Revised Consolidated Petition is considered the P etition

initiating both the R ule Challenge (DOAH Case No. 11 - 5078RX)

and the separate Proposed Agency Action Challenge (DOAH Case

No. 11 - 5479). This Order addresses only the Rule Challenge,

DOAH Case No. 11 - 5078RX.

Shortly before the consolidated cases were scheduled to go

to final hearing, Respondent filed its Motion in the Rule

Challenge seeking summary final order in its favor. The Motion

recited that Respondent had consulted with Petitioner and that

Petitioner oppose d the Motion. Petitioner did not thereafter

file a written re sponse or other materials explaining the

reasons for her opposition to the Motion, as provided by section

120.57(1)(h) and Florida Administrative Code Rule 28 - 106.204(1)

and (4). Separately, Respondent filed a motion to relinquish

jurisdiction in DOAH Cas e No. 11 - 5479, asserting that there were

no disputed issues of material fact; that motion is addressed by

separate order.

The parties then filed a Joint Motion for Continuance of

the consolidated final hearing in recognition of the fact that

motions filed by Respondent in each of the consolidated cases

" may have a significant impact on whether a hearing before the

Division of Administrative Hearings should occur[.] " Despite

acknowledging that the Motion in the Rule Challenge was

potentially dispositive, Petitioner still did not file a written

response or other material in opposition to the Motion, and the

response period is now long past.

Accordingly, the undersigned finds it appropriate to dispose

of the Motion on the basis of the written filings, as

contemplated by rule 28 - 106.204(1).

FINDING S OF FACT

1. Section II of the Revised Consolidated Petition is the

portion of the pleading directed to the Rule Challenge. The

entire Rule Challenge section is set forth verbatim here:

The Department ' s Adopti on of a Rule Broadly

Limiting Time to Complete an Exam Exceeds

its Grant of Legislative Authority

Section 120.52(8)(b) provides that a rule is

an invalid exercise of delegated legislative

authority if " the agency has exceeded its

grant of rulemaking autho rity. " An agency

may only adopt rules that implement or

interpret the specific powers and duties

granted by the enabling statute. Rules are

required to identify the specific authority

for adopting a rule, and the specific law

being implemented.

R ule 6A - 4. 0021, FAC identifies §§1012.55(1)

and 1012.56, Fla. Stat. as its rulemaking

authority and as the law being implemented.

Both statutes relate to the issuance of

teacher certifications, not to the criteria

for admission to upper - level teaching

programs lead ing to a bachelor ' s degree. To

the extent that the rule applies to students

taking the general knowledge portion of the

FCTE to obtain admission to a bachelor ' s

degree program, the rule would be

implementing §1007.265, Fla. Stat.,

regarding alternative st andards for

admission to upper - division classes for

students with disabilities. In order to

meet the criteria established in that

section, the rule would need to allow

alternative admission requirements if the

failure to meet the initial requirement is

re lated to a disability and the revised

requirement would not constitute a

fundamental alteration in the nature of the

program. §1007.265, Fla. Stat.

The Department of Education, by adopting a

rule that limits all test takers, regardless

of the extent or t ype of their disability,

to double the normal amount of time to

complete an exam, has exceeded the authority

granted by the legislature. The DOE has not

and cannot show that allowing an applicant

with a severe vision deficit additional time

(beyond double the normal amount of time)

would fundamentally alter the admissions

criteria for upper - level education classes.

By setting such a limited rule, a rule that

allows no consideration of an applicant ' s

type or degree of disability, the DOE has

established an a rbitrary rule that

contravenes the very law it is attempting to

implement - the law requiring alternative

standards for disabled students.

2. As noted in the Preliminary Statement, the initial Rule

Challenge Petition filed with DOAH alleged only that t he

challenged rule, either facially or as interpreted and applied

by Respondent, was inconsistent with the ADA. Petitioner was ,

thereafter , afforded an opportunity to amend the Petition in

response to the Show Cause Order suggesting that the initial

Petit ion did not meet the pleading requirements for a section

120.56 rule challenge. In response, Petitioner filed the

Revised Consolidated Petition that removed the contention that

the rule was being challenged based on its inconsistency with

the ADA and adde d the Rule Challenge allegations that are set

out verbatim in Finding of Fact 1 above.

3. As Finding of Fact 1 demonstrates, the new premise of

Petitioner ' s Rule Challenge in the Revised Consolidated Petition

is that rule 6A - 4.0021(6)(c)1. is invalid bec ause it exceeds the

grant of legislative rulemaking authority in section 1007.265,

Florida Statutes, a statute that was neither cited as authority

for the challenged rule nor cited as the law implemented by the

challenged rule.

CONCLUSIONS OF LAW

4. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.56(1), (3) & 120.57(1).

5. Petitioner initiated this proceeding to challenge an

existing rule pursuant to section 120.56(1) and (3). In

pertinent part, the statute provides the following requirements

for an existing rule challenge:

(1) GENERAL PROCEDURES FOR CHALLENGING THE

VALIDITY OF A RULE OR A PROPOSED RULE. Ï

(a) Any person substantially affected by a

rule or a proposed rule may seek an

administrative determination of the

invalidity of the rule on the ground that

the rule is an invalid exercise of delegated

legislative authority.

(b) The petition seeking an administrative

determination must state with particularity

the provisio ns alleged to be invalid with

sufficient explanation of the facts or

grounds for the alleged invalidity and facts

sufficient to show that the person

challenging a rule is substantially affected

by it, or that the person challenging a

proposed rule would be substantially

affected by it.

* * *

(3) CHALLENGING EXISTING RULES; SPECIAL

PROVISIONS. Ï

(a) A substantially affected person may

seek an administrative determination of the

invalidity of an existing rule at any time

during the existence of the rule. The

petitioner has a 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.

6. In accordance with the statute, Petitioner must state

with particularity the rule provisions alleged to be i nvalid.

The only rule provision specifically identified in the Revised

Consolidated Petition is rule 6A - 4.0021(6)(c)1., as gleaned from

the title of section II of the Revised Consolidated Petition and

the last paragraph describing the rule provision with which

Petitioner takes issue. In pertinent part, the challenged rule

in the form in which the rule has existed throughout this Rule

Challenge, states as follows:

(6) Examinee with a disability. An

applicant who is unable to complete the

examinations und er standard testing

conditions because of a disability may

request special arrangements. Such a

request shall be made when the examination

application is submitted. Lack of

proficiency in the English language alone

shall not be acceptable as a justifiabl e

reason for requesting a reader or extra time

for an examinee. Special arrangements shall

be provided for applicants with

disabilities.

* * *

(c) Special test arrangements may include

but are not limited to the following:

1. Flexible scheduling. The person may be

administered an examination during several

brief sessions, as long as that examination

is completed on the test administration

date. Up to double time may be allowed.

7. Section 120.56 also requires that a rule challenge

petition set forth sufficient explanation of the grounds relied

on for the alleged invalidity. As a corollary to this pleading

requirement, Petitioner bears the burden of proving that the

rule is an invalid exercise of delegated legislative authority

" as to the objec tions raised. " § 120.56(3)(a). These

provisions in tandem make clear that the viability of a rule

challenge hinges initially on a well - pled objection, which, if

proven, would establish that an existing rule is an invalid

exercise of delegated legislative authority.

8. Petitioner ' s Rule Challenge is expressly limited to

whether the challenged rule provision is invalid pursuant to

section 120.52(8)(b), which provides as follows:

(8) " Invalid exercise of delegated

legislative authority " means action that

g oes beyond the powers, functions, and

duties delegated by the Legislature. 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.

The Revised Consolidated Petition does not invoke any of the

other grounds enumerated in section 120.52(8)(a) and (c)

through (f) to challenge Respondent ' s rule. Thus, whether rule

6A - 4.0021( 6 )( c )1. is invalid because Respondent has exceeded its

grant of rulemaking authority, citation to which is required, is

the sole objection raised.

9. The Revised Consolidated Petition alleges that two

statutes are cited as authority for the challenged rule, but

that a third statute, not cited as authority or as the l aw

implemented, should have been cited as the law implemented.

10. As Respondent correctly points out in its Motion, the

official promulgated rule has the following citation references:

" Rulemaking Authority 1012.55(1), 1012.56, 1012.59 FS. Law

Impleme nted 1012.55, 1012.56, 1012.59 FS. " The official

promulgated rule is available at the following internet address:

https://www.flrules.org/gateway/RuleNo.asp?title=CERTIFICATION&

ID=6A - 4.0021 . Petitioner only identified two of the three

statutes cited as authority for the challenged rule and as

implemented by the challenged rule.

11. Section 1012.55 addresses the positions for which

educator certificates are required. The statute includes an

express direction to the State Board of Education (a division of

Respondent) to " 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 . . . . "

12. Section 1012.56 sets forth the requirements for

educator certification, including examinations. Subsection (13)

provides that " [t]he State Board of Education shall adopt rules

pursuant to ss. 120.536 and 120.54, as necessary to implement

this section. "

13. Significantl y, section 1012.59, overlooked by

Petitioner, provides in pertinent part that " [t]he State Board

of Education, by rule, . . . may establish procedures for

scheduling and administering an examination upon an applicant ' s

request. " (emphasis added) .

14. In accordance with the legislative authority granted

in sections 1012.55(1), 1012.56(13), and 1012.59(1),

Respondent ' s State Board of Education adopted rule 6A - 4.0021

entitled , Florida Teacher Certification Examinations.

15. The Revised Consolidated Petit ion does not allege that

rule 6A - 4.0021 exceeds the legislative authority granted in the

three statutes that are expressly cited as authority for the

rule and as implemented by the rule. In particular, the

flexible scheduling provision for examinees with disabilities in

rule 6A - 4.0021(6)(c)1. , which is the focus of Petitioner ' s

challenge, falls within the grant of legislative rulemaking

authority to establish procedures for scheduling and

administration of examinations. § 1012.59(1). Petitioner does

not contend otherwise.

16. Rather than address the third statute expressly cited

as authority for the challenged rule, the Revised Consolidated

Petition advances an unsupportable argument that the challenged

rule should be deemed to implement another statu te that was not

cited in the rule promulgation history note. As argued by

Respondent in its Motion, the Rule Challenge is predicated on

the erroneous contention that rule 6A - 4.0021 implements section

1007.256; and having posited that false premise, the Ru le

Challenge then offers the conclusion that the rule exceeds or

contravenes the statutory authority that " it is attempting to

implement. "

17. Petitioner ' s assertion that rule 6A - 4.0021 implements

or is attempting to implement section 1007.256 is wrong .

Section 1007.256 addresses a different subject -- it addresses the

circumstances when a student with a disability is eligible for

reasonable substitution of requirements for admission into a

program of study or for entry into the upper division. This

sta tute provides as follows:

(1) Any student with a disability, as

defined in s. 1007.02(2), in a public

postsecondary educational institution shall

be eligible for reasonable substitution for

any requirement for graduation, for

admission into a program of study, or for

entry into the up per division where

documentation can be provided that the

person ' s failure to meet the requirement is

related to the disability and where failure

to meet the graduation requirement or

program admission requirement does not

constitute a fundamental alterati on in the

nature of the program.

(2) The State Board of Education, in

consultation with the Board of Governors,

shall adopt rules to implement this section

for Florida College System institutions and

shall develop substitute requirements where

appropriate.

(3) The Board of Governors, in con sultation

with the State Board of Education, shall

adopt regulations to implement this section

for state universities and shall develop

substitute requirements where appropriate.

18. As pointed out by Respondent in its Motion, a

different rule, not chal lenged by Petitioner, is the rule that

is authorized by and that implements section 1007.256 -- rule

6A - 10.041. This rule entitled , " Substitution for Requirements

for Eligible Disabled Students at Florida Colleges and

Postsecondary Career Centers, " provides in part as follows:

(1) Each board of trustees within the

Florida College System and each district

school board which operates a postsecondary

career center shall develop and implement

policies and procedures for providing

reasonable substitution for eli gible

students as required by Sections 1007.264

and 1007.265, F.S. In determining whether

to grant a substitution, documentation to

substantiate that the disability can be

reasonably expected to prevent the

individual from meeting requirements for

admissi on to the institution, admission to a

program of study, entry to upper division,

or graduation shall be provided.

Subsequent paragraphs of rule 6A - 10.041 provide guidance for the

policies and procedures to be developed by boards of trustees

within the Flo rida College System and district school boards

operating postsecondary career centers. Thus, it is rule

6A - 10.041 that carries out the legislative authority delegated

by section 1007.265 -- not rule 6A - 4.0021.

19. Respondent ' s Motion pinpoints the essenti al flaw in

Petitioner ' s Rule Challenge theory by noting that the Rule

Challenge " conflates the concepts of teacher certification

examinations and admission to postsecondary institutions with

the Florida College System. "

20. As a matter of law, Petition er cannot prevail on her

claim that rule 6A - 4.0021(6)(c)1. is invalid pursuant to section

120.52(8)(b) , by exceeding and contravening the legislative

authority delegated in section 1007.265. Rule 6A - 4.0021(6)(c)1.

does not purport to carry out the legisla tive authority delegated

by section 1007.265. Instead, the challenged rule exercises, and

does not exceed, the legislative authority delegated in sections

1012.55(1), 1012.56(13), and 1012.59(1).

O RDER

Based on the foregoing Findings of Fact and Conclus ions of

Law, it is ORDERED that Respondent ' s Motion for Summary Final

Order on Petitioner ' s Rule Challenge is GRANTED, and the Rule

Challenge is DISMISSED.

DONE AND ORDERED this 25th day of May , 2012, in Tallahassee,

Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of May , 2012 .

ENDNOTE S

1/ References herein to Florida Statutes are to the 2011

codification, unless otherwise specified.

2/ Rule 6A - 4.0021 is intermittently cited in the Petition as rul e

6A - 1.0021, which does not exist. It is clear from the context

and from the occasional correct citations that Petitioner

intended to challenge rule 6A - 4.0021 and that Petitioner ' s

challenge is limited to subparagraph (6)(c)1. of that rule.

3/ Petition er ' s argument that she should not have to initiate

separate proceedings and the matters should not be bifurcated

missed the point. Petitioner did initiate separate proceedings

by filing a petition directly with DOAH, which was accepted as a

rule challenge under section 120.56. Cmty . Health Charities v.

Dep ' t of Mgmt . Servs. , 961 So. 3d 371 (Fla. 1st DCA 2007), the

case relied on by Petitioner, held that it was not necessary to

initiate a separate rule challenge by filing a petition with

DOAH and that, ins tead, the parties could include their rule

challenge allegations in a single petition filed with the

department to challenge the proposed agency action. The court

did not say that if a party chooses to initiate a separate

section 120.56 rule challenge proceeding, as Petitioner did

here, that party is excused from meeting the pleading

requirements that apply to the separate proceeding the party

ini tiated. Moreover, an argument for efficiency and against

bifurcation makes no sense in the context where the two separate

proceedings that Petitioner initiated had already been

consolidated for hearing.

COPIES FURNISHED:

Gerard Robinson, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

g [e-mail]

Charles M. Deal, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tall ahassee, Florida 32399 - 0400

c [e-mail]

Colleen C. Sachs, Esquire

Sachs and La Seur, P.A.

Building 4

1394 County Highway 283 South

Santa Rosa Beach, Florida 32459 - 5789

Brent McNeal, Esquire

Department of Education

S uite 1244

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

[e-mail]

Ken Plante, Coordinator

Joint Administrative Procedures C ommittee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

[e-mail]

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to s ection 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 administrative appeal with the agency clerk of the

Division of Administrative He arings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.