12-002900RU Robert Wood, P.E. vs. The Florida Board Of Professional Engineers And The Florida Department Of Business And Professional Regulation Status: Closed DOAH Final Order on Wednesday, February 20, 2013.

Summary: Petitioner failed to prove that certain contract terms and other procedures relating to discipline of professional engineers were unadopted rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT WOOD, P.E. , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2900RU

)

THE FLORIDA BOARD OF )

PROFESSIONAL ENGINEERS AND THE )

FLORIDA DEPARTMENT OF BUSINESS )

AND PROFESSIONAL REGULATION , )

)

Respondent s . )

)

FINAL ORDER

A final hearing was conducted in this case on November 29,

2012, in Tallahassee, Flo rida, before E. Gary Early, an

administrative law j udge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Michael John McCabe, Esquire

Nicholas Martino, Esquire

McCabe Law Group, P.A.

1400 Prudential Drive, Suite 5

Jacksonville, Florida 32207

For Respondent Florida Board of Professional Engineers:

Michael T. Flury, Esquire

Office of the Attorney General

The Capitol, PL - 01

Tallahassee, Florida 32399

For Respon dent Department of Business

and Professional Regulation:

Garnett Chisenhall, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

The issue for disposition in this case is whether

Respondents have implemented agency statements that meet the

definition of a rule, but which have not been adopted pursuant

to section 120.54.

PRELIMINARY STATEMENT

Petitioner, Robert Wood, P.E. (Petitio ner) , filed his

Unadopted Rule Challenge (Petition) on September 4, 2012. The

Petition alleged that the procedures by which disciplinary

actions against professional engineers are assigned,

investigated, and resolved contained the following Ðunadopted

rul es : Ñ

1. the annual term of the contract between the Department

of Business and Professional Regulation (DBPR) and the Florida

Engineers Management Corporation (FEMC) by which FEMC performs

certain administrative, investigative, and prosecutorial

services , as Ðset forth in Sec. 1 of the 2001 FEMC Contract;Ñ

2. that the determination of whether a complaint against a

professional engineer is Ðlegally sufficientÑ to begin an

investigation is made by the FEMC as described in section

IV.F.1. of the Agreem ent between FEMC and DBPR, and s ection D.2.

of the FBPE Board Training Manual; and

3. the imposition of Ðproject reviewÑ as a condition of

probation in disciplinary proceedings Ð[a]s shown by the

published disciplinary records on the BoardÓs website.Ñ

Petitioner asserted that the Ðsta tementsÑ amount to rules

under s ection 120.52(16), Florida Statutes, whi ch must be

adopted pursuant to s ection 120.54 .

The case was scheduled for h earing to commence on

September 27, 2012. On September 21, 2012, the part ies filed a

Joint Motion for Continuance , w hich was granted. On

September 28, 2012, Petitioner filed a Motion to Set Final

Hearing, which proposed a number of dates that were acceptable

to the parties. Thereupon, the final hearing was scheduled for

Novem ber 29, 2012.

The parties filed a Joint Prehearing Stipulation. The

stipulation identified the Ðnature of the controversyÑ as

Ð[w]hether Respondents' policies and procedures related to

processing complaints against engineers, determining legal

sufficienc y of complaints, determining probable cause for

prosecution of disciplinary actions and enforcing final

disciplinary orders constitute unlawful un - adopted rules.Ñ The

identification of the ÐcontroversyÑ differs in some degree from

the unadopted rules chal lenged in the Petition, particularly as

to the determi nation of probable cause. The T ranscript,

including PetitionerÓs opening argument, recognized the focus of

the case was as pled and described above, and the record is

otherwise devoid of evidence regar ding any unadopted rule

governing the action of the FBPE probable cause panel. Based

thereon, it is found that there are no issues beyond those pled

in the Petition that have been tried by consent, and the issues

for final consideration in this proceeding shall be those raised

in the Petition.

The stipulation contained a number of contested issues of

fact, some of which correspond neatly to the alleged agency

statements challenged in the Petition, and some of which do not.

The stipulated facts have been accepted and given the weight

deemed appropriate to address the issues for consideration, and

the stipulation has been otherwise considered in the preparation

of this Final Order.

The final hearing was held as scheduled on November 29,

2012. At the hearing, Petitioner presented the testimony of

Wendy Anderson, an investigator and public records clerk for the

FEMC, and John Rimes, vice president and chief prosecuting

attorney for the FEMC. Petitioner's Exhibits A - D, G, I, K - L,

and R - V were received i n evidence. Respondents presented no

witness testimony or exhibits.

A one - volume T ranscript of the final hearing was filed on

December 14, 2012. By agreement of the parties, the date for

filing proposed orders was set for January 30, 2013. The

parties timely filed their Proposed Final O rders which have been

considered in the preparation of this Final Order.

References to statutes are to Florida Statutes (2012)

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner, Robert Wood, P.E., is a Florida - l icensed

professional engineer, holding license No. PE 31542. A large

part of PetitionerÓs work involves the design of aluminum - framed

structures.

2. Respondents, DBPR and FBPE, are charged with regulating

the practice of professional engineering in the State of

Florida, pursuant to c hapters 455 and 471, Florida Statutes, and

the rules promulgated thereunder, Florida Administrative Code

Chapter 61G15.

3. The FEMC is a public - private partnership established by

the legislature to provide administrative, investigative, and

prosecutorial services to the FBPE. By statute, the FEMC

operates under a written contract (Contract) with the DBPR,

which Contract is approved by the FBPE.

Term of the Contract

4 . From the creation of FEMC in 1997 until 2000, the

legislature provided that the required written contract was to

be Ðrenewed annually.Ñ

5 . In 2000, the legislature amended section 471.38 to

require that the written contract be an Ðannual contract.Ñ

6 . In 2003, the legislature again amended sectio n 471.38

to repeal the requirement that the contract be an annual

contract.

7 . There is currently no specified term or time for

renewal for the required written contract. The DBPR and the

FEMC have elected to continue to enter written contracts with a

term of one year.

Determination of Legal Sufficiency

8 . Since its creation in 1997, section 471.038 has

provided that Ð[t]he corporation may not exercise any authority

specifically assigned to the board under chapter 455 or this

chapter, including dete rmining probable cause to pursue

disciplinary action against a licensee, taking final action on

license applications or in disciplinary cases, or adopting

administrative rules under chapter 120.Ñ The only change to

that restriction was made in 2000, when the term ÐcorporationÑ

was changed to Ðmanagement corporation.Ñ

9 . In 2000, the legislature also enacted the Management

Privatization Act, s ection 455.32, Florida Statutes. That Act

was intended to establish a model for the creation of non - profit

corporations with which the DBPR could contract for

Ðadministrative, examination, licensing, investigative and

prosecutorial services to any board created within the

department.Ñ The similarities between section 471.38 and

section 455.32 make it obvious t hat the latter was largely

patterned after the former.

10 . Among the duties to be performed by a ÐcorporationÑ

under section 455.32(10) is to:

. . . make a determination of legal

sufficiency to begin the investigative

process as provided in s. 455.225. However,

the department or the board may not delegate

to the corporation, by contract or

otherwise, the authority for determining

probable cause to pursue disciplinary action

against a licensee, taking final action on

license actions or on disciplinary cas es, or

adopting administrative rules under chapter

120.

11 . In previous years, at least through 2001, the written

contract between the DBPR and the FEMC provided that ÐFEMC shall

not exercise the police powers inherent in the Department and

the FBPE including a determination of legal sufficiency or

insufficiency of a disciplinary complaint.Ñ

12 . At some time after the passage of the Management

Privatization Act, the contractual Ðpolice powersÑ restriction

was changed, and now reads, as reflected in the current

Contract, as follows:

Except when providing those prosecutorial

and investigative services set forth in this

Agreement, FEMC shall not exercise the

police powers inherent in the Department and

the FBPE under Chapters 455 or 471, Florida

Stat utes, including determining probable

cause to pursue disciplinary action against

a licensee, other than failure to comply

with final orders of the Board as set forth

in Rule 61015 - 18.005(2), Florida

Administrative Code, taking final action on

license appl ications or in disciplinary

cases, or adopting administrative rules

under Chapter 120, Florida Statutes.

Prosecutorial servicing shall only be

executed in the name of FBPE.

That contractual restriction is consistent with the statutory

limitation on the powers of the FEMC set forth in section

471.38.

13 . In its current form, the Contract establishes the

services that are to be provided by FEMC to the DBPR and the

FBPE. The list of prosecutorial services to be provided by FEMC

include coordinating with investigators, reviewing and taking

Ðappropriate actionÑ on complaints, and preparing cases for

presentation to the FBPE probable cause panel. The list of

investigative services to be provided by FEMC include receiving

complaints, interviewing complainant s, witnesses, and subjects

of complaints, issuing subpoenas, preparing investigative

reports, and taking other actions leading to the prosecution of

a case.

14 . The Contract does not specifically address the issue

of determining legal sufficiency.

15 . The typical procedures of the FEMC in performing its

investigatory functions are initiated when the FEMC receives a

complaint by various means, including telephone, e - mail, or

submission of a written complaint. Written complaints are

normally directed to the FEMC chief prosecutor, who assigns them

to an investigator for initial review. If the complaint is

verbal, the investigator fielding the call will ask the

complainant to file a written complaint.

16 . If a complaint is unaccompanied by information to

substantiate the claims, the investigator typically requests

supporting documentation, which may be a set of engineering

plans, a report, or similar evidence of the facts underlying the

complaint.

17 . In a procedure implemented by the FEMC in 2012, af ter

receipt of the complaint and supporting documentation , the

investigator forwards the complaint to an engineering expert

retained by FEMC for a pre - review. The expert prepares a

preliminary report which is then considered in the determination

of legal sufficiency. Prior to implementation of the 2012 pre -

review procedure, the determination of legal sufficiency was

made without the benefit of a pre - review report in the manner

otherwise described below.

18 . After receipt of the complaint, the supporti ng

documentation, and, since 2012, the pre - review report, the

investigator presents the complaint to the FEMC chief

prosecutor.

19 . If the chief prosecutor determines that the complaint

is not legally sufficient, the investigator is instructed to

draft a memorandum for the chief prosecutor to review, which is

in turn submitted to the FBPE Executive Director for signature.

20 . If the chief prosecutor determines that the complaint

is legally sufficient, he or she verbally authorizes the

investigator to place the engineer on notice of the

investigation. At that point, the complaint is investigated

using the investigative tools available to FEMC as set forth in

the Contract.

21 . If sufficient evidence that a violation has occurred

is found, the invest igation culminates in a recommendation to

the FBPE probable cause panel for a decision as to whether the

panel believes there to be probable cause to proceed with

disciplinary action. The decision to proceed with a

disciplinary proceeding requiring a poin t of entry to challenge

the action is entirely that of the FBPE probable cause panel.

Probationary Project Review

22 . On November 4, 2009, FBPE entered a disciplinary final

order regarding Petitioner that incorporated a stipulated

settlement agreement, and imposed sanctions on Petitioner,

including probation. By his entry of the settlement

stipulation, Petitioner agreed to a Ðproject reviewÑ at six and

eighte en - month intervals.

23 . The project review consisted of the submission by

Petitioner of a lis t of all completed projects. That list was

provided to an engineering expert, who then selected two of the

projects for a more comprehensive review. The steps to be

performed by Petitioner and the FBPE are generally described in

Project Review Process Gu idelines that were provided to

Petitioner by FBPE as an attachment to the notice of the two

projects selected for comprehensive review.

24 . As a result of the project review, the two projects

were determined to violate engineering standards, which res ulted

in the FEMC making a recommendation of probable cause to the

FBPE probable cause panel. The probable cause panel found

probable cause, leading to the issu ance of an Administrative

C omplaint against Petitioner.

25 . Petitioner introduced evidence of one other case in

which a project review was required as a condition o f probation.

In that case, an a dministrative law j udge, after having

determined that the professional engineer committed violations

of section 471.033 and Florida Administrative Code Rule 61G15 -

19.001, recommended imposition of Ðprobation for two years with

appropriate c onditions for this case.Ñ The Final O rder, entered

on March 12, 2008, imposed the recommended probation Ðwith a

plans review at 6 months and 18 months from the date o f this

Order.Ñ The basis for the imposition of that sanction was not

explained. There was no evidence introduced at the final

hearing as to any other specific case in which a project review

was required, other than the case involving Petitioner.

26 . The 2012 FEMC Annual Report, which is a business

record of the FEMC, indicated that between July 1, 2011 and June

30, 2012, the FEMC was involved in the investigation and/or

prosecution of 32 cases in which Administrative Complaints were

filed against engi neers. Disciplinary sanctions imposed against

engineers during that one - year period included, among others,

twenty - five reprimands, six license suspensions, eight

probations, seven license restrictions, two voluntary license

relinquishments, and four lice nse revocations. Also included

among the sanctions imposed during that period were three

project reviews.

27 . The sanction of project review is one that is,

statistically, used sparingly by the FBPE. There was no

evidence introduced to establish the cr iteria, if any, for the

imposition of a project review as a condition of probation, or

to demonstrate that it was generally applied i n any specific

circumstances.

CONCLUSIONS OF LAW

28 . The Division of Administrative Hearings has

jurisdiction of the subject matter and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

29 . Section 120.54(1)(a) provides, in pertinent part, that

Ð[r]ulemaking is not a matter of agency discretion. Each agency

st atement defined as a rule by s. 120.52 shall be adopted by the

rulemaking procedure provided by this section as soon as

feasible and practicable.Ñ

30 . Secti on 120.52(16) defines a rule, in pertinent part,

as:

. . . 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.

31 . An agency state ment is Ðgenerally applicableÑ if it is

intended by its own effect to create rights, or to require

compliance, or otherwise have the direct and consistent effect

of law. Coventry First, LLC v. Ofc. of Ins. Reg. , 38 So. 3d 200

(Fla. 1st DCA 2010)(quoting M cDonald v. DepÓt of Banking & Fin. ,

346 So. 2d 569, 581 (Fla. 1st DCA 1977)). Furthermore:

"An agency statement that either requires

compliance, creates certain rights while

adversely affecting others, or otherwise has

the direct and consistent effect of law is a

rule." Vanjaria , 675 So. 2d at 255. When

deciding whether a challenged action

constitutes a rule, a court analyzes the

act ion's general applicability, requirement

of compliance, or direct and consistent

effect of law. Volusia C nty . Sch. Bd. v.

Volusia Home Builders Ass'n, Inc. , 946 So.

2d 1084, 1089 (Fla. 5th DCA 2006).

Fla. Dep't of Fin. Servs. v. Cap. Collateral Reg'l Cou nsel -

Middle Region , 969 So. 2d 527, 530 (Fla. 1st DCA 2007).

32 . Section 120.56(4)(a) provides, in pertinent part, that

Ð[a]ny person substantially affected by an agency statement may

seek an administrative determination that the statement violates

s. 12 0.54(1)(a).Ñ

33 . Petitioner has the burden of establishing by a

preponderance of the evidence that the challenged agency

statements constitute unadopted rules. Dravo Basic Material Co.

v. Dep't of Transp. , 602 So. 2d 632 (Fla. 2d DCA 1992); Fla.

Dep't of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA

1981).

34 . Petitioner alleges that the following agency

state ments are rules, as defined by s ect ion 120.52(16) : (1) the

provision of the Contract establishing a contractual term of one

year; (2) s ection IV.F.1. of the Contract and Section D.2. of

the FBPE Board Training Manual that describe the process by

which the FEMC makes the initial determination of legal

sufficiency of a complaint against an engineer; and (3) the

imposition of Ðproject review Ñ as a condition of probation in

disciplinary proceedings.

Standing

35 . In order to demonstrate standing to challenge the

RespondentsÓ alleged agency statements as unadopted rules,

Petitioner must meet the two - pronged test for standing in formal

adminis trative proceedings established in the seminal case of

Agrico Chemical Corp. v. Dep't of Envtl. Reg. , 406 So. 2d 478

(Fla. 2d DCA 1981). In that case, the Court held that:

We believe that before one can be considered

to have a substantial interest in the

outcome of the proceeding, he must show

1) that he will suffer an injury in fact

which is of sufficient immediacy to entitle

him to a section 120.57 hearing and 2) that

his substantial injury is of a type or

nature which the proceeding is designed to

prote ct. The first aspect of the test deals

with the degree of injury. The second deals

with the nature of the injury.

Id. at 482. The standing requirements described in Agrico are

applicable to rule challenges, including unadopted rule

challenges, brought pursuant to section 120.56. Jacoby v. Fla.

Bd. of Med . , 917 So. 2d 358, 360 (Fla. 1st DCA 2005).

36 . The injury necessary to support standing cannot be

speculative, nonspecific, hypothetical, or lacking in immediacy

or reality. All Ris k Corp. of Fl a . v. State DepÓt of Labor &

Emp. Sec ., Div. of Workers' Comp . , 413 So. 2d 1200, 1202 (Fla.

1st DCA 1982); Fl a . Dep Ót of Offender Rehab. v. Jerry , 353 So.

2d 1230, 1235 (Fla. 1st DCA 1978).

37 . The standing requirement established by Agrico has

been refine d, and now stands for the proposition that standing

to initiate an administrative proceeding is not dependent on the

ultimate success of the challenge to a governmental action.

Instead, standing requires proof that Petitioner has a

substantial interest an d that the interest reasonably could be

affected by the proposed agency action. Whether the effect

would constitute a violation of applicable law is a separate

question.

Standing is Ða forward - looking conceptÑ and

Ðcannot ÒdisappearÓ based on the ultimat e

outcome of the proceeding.Ñ . . . When

standing is challenged during an

administrative hearing, the petitioner must

offer proof of the elements of standing, and

it is sufficient that the petitioner

demonstrate by such proof that his

substantial interest s Ð could reasonably be

affected by . . . [the] proposed

activities.Ñ (emphasis in original)

Palm Beach Cnty. Envtl. Coal. v. Fla. Dep't of Envtl. Prot. ,

14 So. 3d 1076, 1078 (Fla. 4th DCA 2009) ( citing Peace

River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co . ,

18 So. 3d 1079, 1083 (Fla.2nd DCA 2009 ) ) and Hamilton C nty . Bd.

of Cnty. Comm'rs v. State Dep't of Envtl. Reg . , 587 So. 2d 1378

(Fla. 1st DCA 1991) ).

38 . Except as it pertains to the issue regarding the term

of the contract, which is addressed below, Petitioner has

standing to challenge the agency statements at issue as

unpromulgated rules. Petitioner has made sufficient allegations

that he has been adv ersely affected by RespondentÓs agency

statements regarding professional discipline, and as a licensed

professional engineer remains subject to those agency

statements. Thus, Petitioner meets the immediate injury prong.

Petitioner also meets the second p rong of the Agrico test, as he

is within the zone of interest to be protected or regulated by

the disciplinary rules and policies applicable to professional

engineers. Jacoby v. Fla. Bd. of Med . , 917 So. 2d at 360.

Term of the Contract

39 . Petitioner has failed to demonstrate that the term of

the Contract between DBPR and the FEMC requires compliance,

creates rights while adversely affecting others, or otherwise

has the direct and consistent effect of law.

40 . For the reasons set fort h herein, the provision of the

Contract that establishes an annual term is not a ÐruleÑ as

defined in section 120.52(16), subject to challenge under

section 120.56(4).

41 . Petitioner has failed to demonstrate that the term of

the Contract could result an injury in fact which is of

sufficient immediacy to entitle him to a section 120.57 hearing.

The argument that a contract Ðfixed in perpetuityÑ is necessary

to prevent the regulated community from being Ðleft to guessing

as to what might be in a future co ntractÑ is not sufficient to

show any injury or any immediacy that would establish standing.

42 . For the reasons set forth herein, Petitioner does not

have standing to challenge the provision of the Contract that

establishes its term.

Determination of Legal Sufficiency

43 . Se ction 455.225 provides, in pertinent part, that:

Disciplinary proceedings for each board

shall be within the jurisdiction of the

department.

(1)(a) The department, for the boards under

its jurisdiction, shall cause to be

investigated any complaint that is filed

before it if the complaint is in writing,

signed by the complainant, and legally

sufficient. A complaint is legally

sufficient if it contains ultimate facts

that show that a violation of this chapter,

of any of the practice acts relating to the

professions regulated by the department, or

of any rule adopted by the department or a

regulatory board in the department has

occurred. In order to det ermine legal

sufficiency, the department may require

supporting information or documentation.

The department may investigate, and the

department or the appropriate board may take

appropriate final action on, a complaint

even though the original complainan t

withdraws it or otherwise indicates a desire

not to cause the complaint to be

investigated or prosecuted to completion.

The department may investigate an anonymous

complaint if the complaint is in writing and

is legally sufficient, if the alleged

violat ion of law or rules is substantial,

and if the department has reason to believe,

after preliminary inquiry, that the

violations alleged in the complaint are

true. The department may investigate a

complaint made by a confidential informant

if the complaint is legally sufficient, if

the alleged violation of law or rule is

substantial, and if the department has

reason to believe, after preliminary

inquiry, that the allegations of the

complainant are true. The department may

initiate an investigation if it ha s

reasonable cause to believe that a licensee

or a group of licensees has violated a

Florida statute, a rule of the department,

or a rule of a board.

* * *

(2) The department shall allocate

sufficient and adequately trained staff to

expeditiously and th oroughly determine legal

sufficiency and investigate all legally

sufficient complaints. When its

investigation is complete and legally

sufficient, the department shall prepare and

submit to the probable cause panel of the

appropriate regulatory board the

investigative report of the department. The

report shall contain the investigative

findings and the recommendations of the

department concerning the existence of

probable cause . . . .

44 . S ection 455.32, the Management Privatization Act, was

created t o establish a model for DBPR to contract Ðwith

nonprofit corporations to provide administrative, examination,

licensing, investigative, and prosecutorial services to any

board created within the department pursuant to chapter 20 in

accordance with the prov isions of this chapter and the

applicable practice act.Ñ

45 . Section 455.32(10), Florida Statutes, provides that:

The corporation may exercise the authority

assigned to the department or board under

this section or the practice act of the

relevant profe ssion, pursuant to the

contract, including but not limited to

initiating disciplinary investigations for

unlicensed practice of the relevant

profession. The corporation may make a

determination of legal sufficiency to begin

the investigative process as pr ovided in s.

455.225. However, the department or the

board may not delegate to the corporation,

by contract or otherwise, the authority for

determining probable cause to pursue

disciplinary action against a licensee,

taking final action on license actions or on

disciplinary cases, or adopting

administrative rules under chapter 120.

46 . An investigation is a process, and not a discrete act.

The l anguage in s ection 455.32(10), even though not directly

applicable to the FEMC because of its later enactment , leads the

undersigned to conclude that the determination of legal

sufficiency is within the continuum of an Ðinvestigation,Ñ and

is therefore within the FEMCÓs legislatively delegated powers

and duties Ðto provide administrative, investigative, and

prose cutorial servicesÑ to the FBPE, subject to the entry of a

written contract with the DBPR.

47 . The decision to proceed with an investigation has no

direct effect on PetitionerÓs substantial interests. At most,

the investigation can result in a recommend ation to a panel of

the FBPE which has authority to make the decision to proceed

with enforcement. It is that act, rather than the preliminary

investigatory step of determining the legal sufficiency of a

complaint filed by a third party, that may affect P etitionerÓs

substantial interests.

48 . It is well established that Ð[a] recommendation which,

standing alone, does not Òrequire compliance, create certain

rights while adversely affecting others, or otherwise have the

direct and consistent effect of la w,Ó does not constitute a

rule.Ñ Fla. Dep't of Fin. Servs. v. Capital Collateral Reg'l

Counsel - Middle Region , 969 So. 2d at 530 ( citing Volusia Co.

Sch. Bd. v. Volusia Home Builders AssÓn, Inc. , 946 So. 2d 1084,

1090 (Fla. 5th DCA 2006) ) . Furthermore, Ðmerely conducting and

reporting on an investigation does not amount to promulgating a

rule which can be preemptively challenged prior to any attempt

by an agency at enforcement.Ñ Id. at 531.

49 . Petitioner failed to prove that the DBPRÓs contractual

ass ignment of the preliminary investigative step of determining

legal sufficiency to the FEMC, an act required as part of the

investigatory process under section 455.225, in and of itself

creates rights in Petitioner while adversely affecting others,

or other wise has the direct and consistent effect of law.

50 . For the reasons set forth herein, the terms of the

Contract and the FBPE Board Training Manual that describes the

process by which investigations are to occur, including the

initial determination of legal sufficiency, are not ÐrulesÑ as

defined in section 120.52(16), subject to challenge under

section 120.56(4).

Probationary Project Review

51 . Secti on 455.227(2) establishes the penalties that may

be imposed for a violation of that section or th e applicable

professional practices act, including that for the practice of

engineering under chapter 471, and provides, in pertinent part,

that:

When the board, or the department when there

is no board, finds any person guilty of the

grounds set forth in subsection (1) or of

any grounds set forth in the applicable

practice act, including conduct constituting

a substantial violation of subsection (1) or

a violation of the applicable practice act

which occurred prior to obtaining a license,

it may enter an o rder imposing one or more

of the following penalties:

* * *

(f) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board, or the department

when there is no board, may specify. Those

conditions may include, but are not limited

to, requiring the licensee to undergo

treatment, attend continuing education

courses, submit to be reexamined, work under

the supervision of another licensee, or

satisfy any terms which are reasonably

tailo red to the violations found.

52 . Section 471.033(3) establishes the penalties that may

be imposed for a violation of chapter 471, and provides, in

pertinent part, that:

When the board finds any person guilty of

any of the grounds set forth in subsection

(1), it may enter an order imposing one or

more of the following penalties:

* * *

(e) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board may specify.

53 . Section 455.2273(1), Florida Statutes, pro vides that:

Each board, or the department when there is

no board, shall adopt, by rule, and

periodically review the disciplinary

guidelines applicable to each ground for

disciplinary action which may be imposed by

the board, or the department when there i s

no board, pursuant to this chapter, the

respective practice acts, and any rule of

the board or department.

54 . Florida Administrative Code Rule 61G15 - 19.004(1),

which establishes the guidelines for FBPE disciplinary matters,

provides that:

The Board sets forth below a range of

disciplinary guidelines from which

disciplinary penalties will be imposed upon

practitioners (including holders of

certificate of authorization) guilty of

violating Chapter 471, F.S. The purpose of

the disciplinary guidelines i s to give

notice to licensees of the range of

penalties which will normally be imposed

upon violations of particular provisions of

Chapter 471, F.S. . . . All impositions of

probation as a penalty shall include

successful completion of the Engineering Law

and Rules Study Guide, completion of a

Board - approved course in Engineering

Professionalism and Ethics, and an

appearance before the Board at the option of

the Board at the end of the probationary

period. Other terms may be imposed by the

Board at its di scretion.

55 . Petitioner has raised a legitimate question regarding

the imposition of a Ðproject reviewÑ as described herein as a

condition of probation under the imprecise and discretionary

Ðcatch - allÑ provisions contained in the cited statutes and

rul es. However, whether there may be authority for the

imposition of a project review on a case - by - case basis is not

the question at issue here.

56 . The evidence in this case demonstrates that project

review is a sanction that is imposed sparingly, and for which no

evidence of the grounds for its imposition was offered.

Petitioner failed to prove that the imposition of a project

review as a conditi on of probation was a statement of general

applicability, or that it creates certain rights while adversely

affecting others, or otherwise has the direct and consistent

effect of law.

57 . For the reasons set forth herein, the imposition of a

project re view as a sanction in a disciplinary case is not a

ÐruleÑ as defined in section 120.52(16), subject to challenge

under section 120.56(4).

Constitutional Issues

58 . Interspersed throughout Peti tionerÓs P roposed Final

O rder is the argument that the FEMCÓs initial determinations of

legal sufficiency of complaints, whether made pursuant to

section 471.38 or pursuant to the agency statements described

herein, are the result of an unconstitutional delegation of the

stateÓs police powers to a private enti ty. An argument of this

nature is not within the authority of the undersigned to decide

in a section 120.56 rule challenge proceeding, even though

exhaustion of administrative remedies may be required before

proceeding with a constitutional challenge in a n Article V

court. Key Haven Associated Enter., Inc. v. Bd. of Trs. of the

Int. Impust Fund , 427 So. 2d 153, 157 (Fla. 1982); Sarnoff

v. Fla. Dep't of High. Saf. & Motor Veh. , 825 So. 2d 351 (Fla.

2002); Fla. Fish & Wildlife Conser. Comm'n v. Pringle , 838 So.

2d 648 (Fla. 1st DCA 2003 ) . Therefore, no ruling is made as to

t he facial constitutionality of s ection 471.38, or of the

application of that section by Respondents as alleged in this

proceeding.

ORDER

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

ORDERED that the Unadopted Rule Challenge is dismissed.

D ONE AND ORDERED this 20th day of February, 2013, in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 20th day of February , 2013 .

COPIES FURNISHED :

Michael John McCabe, Esquire

McCabe Law Group, P.A.

Suite 5

1400 Prudential Drive

Jacksonville, Florida 32207

Philip J. Stoddard

North Star Associates, LLC

320 High Tide Drive

St. Augustine, Florida 32080

Michael Todd Flury, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

John Jefferson Rimes, III, Esquire

Board of Professional Engineers

Florida Engineers Management Corp.

Suite B - 112

2639 North Monroe S treet

Tallahassee, Florida 32303

Garnett Wayne Chisenhall, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399

Ken Lawson, Secretary

Department of Business and

Professional Regul ation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

Zana Raybon, Executive Director

Department of Business and

Professional Regulation

Board of Professional Engineers

Suite B - 112

2639 North Monroe Street

Tallahassee, Florida 32303 - 5268

(e - served)

J. Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(e - served)

Liz Cloud, Program Administrator

Administrative Code

Department of State

R.A. Gray Building, Ste. 101

Tallahassee, Florida 32399

(e - served)

Mr. Ken Plante, Coordinator

Joint Admin Proced ural Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399

(e - served)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Administrative Appeal with the

agency clerk of the Division of Administrative Hearings and a

second copy, accompanied by filing fees prescribed by law, with

the District Court of Appeal, First District, or with t he

District Court of Appeal in the appellate district where the

party resides. The Notice of Administrative Appeal must be

filed within 30 days of rendition of the order to be reviewed.