14-004724RX Children&Apos;S Hour Day School vs. Department Of Children And Families Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, May 13, 2015.

Summary: Rule 65C-22.010(2)(e)2.a. enlarges, modifies, or contravenes the specific provisions of law implemented insofar as it denies licensees an offer of a point of entry into the administrative process.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHILDREN'S HOUR DAY SCHOOL ,

Petitioner,

vs. Case No. 14 - 4724RX

DEPARTMENT OF CHILDREN AND

FAMILIES ,

Respondent.

________________________________/

FINAL ORDER

Pur suant to notice, an ora l argument was held in this case

on December 23, 2014 , before Edward T. Bauer, an Administrative

Law Judge of the Division of Admini strative Hearings.

APPEARANCES

For Petitione r: Howard J. Hochman, Esquire

Law Offices of Howard J. Hochman

7695 Southwest 1 04th Street, Suite 210

Miami, Florida 33156

For Respondent: Paul Sexton , Esquire

Department of Children and Families

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this case is whether Flor ida Administrative

Code Rule 65C - 22.010(2)(e) 2 . a. constitutes an invalid exercise

of delegated legislative authority.

PRELIMINARY STATEMENT

On October 10 , 2014, Petitioner Children's Hour Day School

("Petitioner") filed with the Division of Administrativ e

Hearings a "Petition for Formal Administrative Determination of

the Invalidity of Adm inistrative Rule" ("Petition"). T he

Petition alleges that rule 65C - 22.010(2)(e) 2. a. constitutes an

invalid exercise of delegated legislative authority in that it

author izes the Department of Children and Families ("the

Department") to issue a formal warning letter ÏÏ an action that,

according to Petitioner, affects a licensee's subs tantial

interests ÏÏ without offering the licensee a point of entry into

the administrative pr ocess.

In relevant part, rule 65C - 22.010 provides (with the

challenged language underlined for emphasis):

(1) Definitions.

* * *

(d) "Violation" means a finding of

noncompliance by the department or local

licensing authority of a licensing standard.

* * *

2. "Class II Violation" is the second or

subsequent incident of noncompliance with an

individual Class II standard. . . . Class

II violations are less serious in nature

than Class I violations, and could be

anticipated to pose a threat to the heal th,

safety or well - being of a child, although

the threat is not imminent.

* * *

(e) Disciplinary sanctions for licensing

violations that occur within a two year

period shall be progressively enforced as

follows:

* * *

2. Class II Violations

a. Fo r the first violation of a Class II

standard, the department shall issue a

formal warning letter stating the

department's intent to take administrative

action if further violations of the standard

occur. The violation will be classified as

"Technical Supp ort."

b. For the second violation of the same

Class II standard, the department shall

issue an administrative complaint . . . .

With the undersigned's leave, Petitioner subsequently filed

an "Amended Petition for Administrative Determination of the

Invalidity of Administrative Rule" ("Amended Petition"), the

gravamen of which is identical to the original Petition. 1 /

A lthough initially scheduled for Octob er 31, 2014, the

final hearing was continued to December 5 , 2014 , at the request

of Petitioner. On December 4 , 2014, the parties notified the

undersigned that an evidentiary hearing would not be necessary

and that they had stipulated to the facts and exhibits necessary

to resolve the Amended Petition. During a phone conference on

the same date, the undersigned and the parties agreed that the

final hearing should be canceled; that proposed final orders

would be submitted no later than December 19, 2014; tha t oral

argument would be heard via telephone conference call on

December 23, 2014; that the tra nscript of the oral argument

would be filed by January 12, 2015; and that a final order would

issue no later than January 19, 2015.

In preparing this Final Order, the undersigned has

considered the parties' join t exhibits (numbered 1 through 6 );

the stip ulated facts enumerated in the December 4, 2014, Joint

Prehearing Stipulation; the arguments presented during the

December 23, 2014, oral a rgument; and the proposed final

orders, 2 / which Petitioner and the Department filed,

respectively, on December 18 and 19, 2014.

Unless otherwise indicated, all rule and statutory

re ferences are to the current versions.

FINDINGS OF FACT

I . The Parties

1 . Petitioner is a Florida corporation licensed by the

Department to operate a child care facility at 11101 Southwe st

184th Street, Miami, Florida.

2 . The Department is responsible for the licensure and

regulation of child care facilities pursuant to sections 402.305

and 402.310, Florida Statutes.

3. The Department is an "agency" for the purposes of the

Administrat ive Procedure Act. § 120.52(1)(a), Fla. Stat.; Dep't

of Child. & Fam. Servs. v. I.B. , 891 So. 2d 1168, 1173 (Fla. 1st

DCA 2005)("[T]he Administrative Procedure Act applies to DCFS,

no less than to every other 'state department, and each

departmental unit. '").

II . Background

4. On or about August 6, 2014, a Department employee

conducted an inspection of Petitioner's child care facility.

Thereafter, on August 16, 2014, Petitioner received from the

Department two formal warning letters.

5. In additio n to listing Petitioner's business name,

address, and license number, each warning letter included the

following language at the top of the page:

This serves as a formal Administrative

Warning that the next violation of a

licensing standard outlined in thi s notice,

will result in an administrative fine. The

Department is authorized to impose

administrative fines as provided in section

402.310, Florida Statute[s], 65C - 20.012 or

65C - 22.010, Florida Administrative Code.

(e mphasis added).

6. Although the re ference to a "next violation" plainly

indicated that the Departm ent had made conclusive findings ÏÏ as

opposed to allegations ÏÏ of wrongdoing, any ambiguity on that

point was dispelled by the "Violation Standard " sections of the

warning letters . Indeed, the definitive - sounding verbiage of

those sections , which is quoted below, found Petitioner in

violation of numerous "Class II" standards :

Ratio Sufficient rule 65C - 22.001(4)(a)(b) &

402.305(4), F.A.C.

Class 2, A ratio of (2) staff for (8)

children is required . There were (2) staff

for (22) children observed.

Supervision rule 65C - 22.001(5)(a) - (d), 65C -

22.001(6)(f), 65C - 22.002(4)(c)2. & 65C -

22.007(2), F.A.C.

Class 2, Direct supervision of children in

the (mixed) group was inadequate in that

(there were 22 chil dren left alone with 2

teachers).

Child Discipline rule 65C - 22.001(8)(a)(b),

F.A.C. & 402.305(12), F.S.

Class 2, The facility's discipline practice

included the use of spanking or other form

of physical punishment.

Facility Environment rule 65C -

22.002(1) (a)(b) & (7)(e)(f), F.A.C.

Class 2, A n area of the facility was

observed to be a serious health hazard to

children in care.

Class 2, Furnishings, equipment or plumbing

were not clean and maintained in good

repair, which pose a threat to the health,

safety, or well - being of the children in

care.

Class 2, Fire hazard, such as, (gasoline

canister being improperly stored), was

observed in the facility.

* * *

Supplies Labeled/Stored rule 65C -

22.002(1)(f), F.A.C.

Class 2, The storage of potentially harmful

item s such as knives and/or sharp tools

allowed access by children in care.

Fencing rule 65C - 22.002(4)(d)(e), F.A.C.

Class 2, The facility's outdoor play space

was not enclosed with fencing or walls a

minimum of 4 feet in height.

Food Preparation Area 65C - 2 2.002(8), F.A.C.

Class 2, Staff working with food did not use

gloves or utensils while working with food

to limit the direct contact with food.

Access/Child Abuse or

Neglect/Misrepresentation ss. 402.319, F.S.

& rule 65C - 22.001(9), (11), F.A.C.

Class 2, T he owner, operator, employee or

substitute failed to grant access to the

child care facility during the hours of

operation to the licensing authority or

parent/legal guardian.

(emphasis in original).

7. T he se findings, which the Department concedes are

available to the public, 3 / did not sit well with Petitioner, who,

undeterred by the absence of any langua ge in the warning letters

offering a point of entry into the administrative process, filed

a "Petition for Hearing Involving Disputed Issues of Materi al

Fact." The hearing request , which the Department received on

September 8, 2014, disputed most, if not all, of the findings

contained in the warnings . In addition, Petitioner alleged in

its hearing request that the warning letters affected its

substant ial interests in that:

[T]he imposition of an Administrative

Warning constitutes a disciplinary action

which can ultimately affect Petitioner's

licensure when such administrative warnings

are accumulated . . . and can affect the

professional and business r eputation of

Petitioner.

8. Thereafter, in an Order to Show Cause dated

September 26, 2014, the Department's deputy general counsel

opined that a "Notice of Administrative Warning regarding Class

II violations is a pre - disciplinary 'technical support'

v iolation of licensing standards . . . and not a disciplinary

action triggering the application of Chapter 120, Florida

Statutes." Consistent with this view, the Order to Show Cause

directed the Petitioner to demonstrate why its request for

hearing should not be dismissed. Thereafter, on October 28,

2014, the Department issued a f inal order dismissing

Petitioner's formal hearing request.

III . Instant Litigation

9. Eschewing an appeal of the Department's final ord er,

Petitioner instead brought the inst ant proceeding pursuant to

section 1 20.56(1)(a), Florida Statutes. Refined to its bare

essence, the Amended Petition alleges that the issuance of a

formal warning letter for a first violation of a Class II

standard affects a licensee's substantial interes ts, thereby

obligating the Depar tment to offer a timely point of entry into

the administrative process; that rule 65C - 22.010 (2)(e)2. a.

operates to deny such an offer ; and that the rule constitutes an

invalid exercise of d elegated legislative authority. Be fore

analyzing these questions, it is first necessary to address

several preliminary issues, including standing and the burden of

proof.

CONCLUSIONS OF LAW

I . Jurisdiction & Burden of Proof

10 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to section 120.56(1) and (3), Florida

Statutes.

11. Petitioner must demonstrate the invalidity of the

challenged rule by a preponderance of the evidence. Dep't of

Health v. Merritt , 91 9 So. 2 d 561, 564 (Fla. 1st DCA 2006)

(holding that "hearings held with respect to challenges to an

existing or proposed rule shall be de novo in nature and that

the standard of proof shall be th e preponderance of the

evidence ")(internal quotation marks om itted).

II . Standing

12 . Although Respondent concedes this issue , 4 / it is well

settled that "standing in the administrative context is a matter

of subject matter jurisdiction and cannot be conferred by the

parties." Abbott Labs. v. Mylan Pharms., Inc. , 15 So. 3d 642,

651 n.2 (Fla. 1st DCA 2009).

1 3 . To establish standing, Petitioner must demonstrate

that it is substantially affected by the challenged rule. In

partic ular, Petitioner must first prove that the rule will

result in a real and suffic ientl y immediate injury in fact.

Ward v. Bd. of Trs. of Int. Imp. Trust Fund , 651 So. 2d 1 236,

1237 (Fla. 4th DCA 1995). Petitioner must further establish

that the alleged i nterest is arguably within the zone of

interest to be protected or regulated. Id.

1 4 . Beginning with the question of injury in fact, it is

evident that the Depa r tment's issuance of the warning letters

comprises the first step of a disciplinary proc ess that features

progressively more serious sanctions upon future violations of

Class II s tandards. Indeed, barring a c hapter 120 hearing to

challenge th e findings contained in the warnings , Petitioner's

next (i.e., second) violation of the same Class II standard will

result in the imposition of a n administrative fine. See Fla.

Admin. Code R. 65C - 22.010(2)(e)2.b.("For the second violation of

the same Class II standard, the department shall issue an

administrative complaint imposing a fine of $50 for each

violation."). Accordingly , Petitioner satisfies the immediate

injury prong. See Jacoby v . Fla. Bd. of Med. , 917 So. 2d 358,

360 (Fla. 1st DCA 2005)(holding that appellate satisfied the

immediate injury prong because he was "subject to the licensing

rules and policies of the state . . . and [had] already suffered

an immediate impact because of those rules and policies " ).

15 . T he second prong of the "subs tantially affected" test

has also been met, for Petitioner is within the zone of interest

to be protected or regulated. Id. at 360 ("[I]f an individual

is affected by licensing rules because that individual works in

the area that is regulated, the 'substantially affected '

requirement is satisfied."). As such, Petitioner has standing

in this proceeding.

III . Petitioner's Challenge

16 . As indicated previously, Petitioner's challenge to

rul e 65C - 22.010(2)(e)2.a. rests on three premises: that the

issuance of formal warning letter for a first violation of a

Class II standard affects a licensee's substantial interests

and, thus, a point of entry into the adminis trative process must

be offered ; that the rule denies a licensee an offer of a point

of entry under such circumstances; and that , by denying an offer

of a point of entry, the rule enlarg es, modifies, or contravenes

the specific law implemented and, therefore, constitutes an

invalid exerc ise of delegated legislative authority. Each issue

is addressed separately below.

A . Substantial Interests

17. It is a bedrock principle that a party whose

substantial interests are affected by agency action must be

afforded a clear point of entry i nto formal or informal

proceedings under chapter 120, which point of entry cannot be

"so remote from the agency action as to be ineffectual as a

vehicle for affording [the affected party] a prompt opportunity

to challenge" the decision. Fla. League of Cit ies, Inc. v.

Admin. Comm'n , 586 So. 2d 397, 413 (Fla. 1st DCA 1991);

Capeletti Bros., Inc., v. Dep't of Transp. , 362 So. 2d 346, 348

(Fla. 1st DCA 1978)("[A]n agency must grant affected parties a

clear point of entry, within a specified time after some

rec ognizable event in investigatory or other free - form

proceedings, to formal or informal proceedings under s ection

120.57.").

18. Notably for present purposes, an agency a ction can

affect a licensee's substantial interests , thereby triggering

the right to a point of entry, even though the action does not

seek to suspend or revoke the licensee's right to practice ,

convert the license to probation ary status , or impose an

administrative fine. See Brown v. Dep't of Prof'l Reg . , 602

So. 2d 1337 , 1340 (Fla. 1st DCA 1992) . In Brown , the Department

of Professional Regulation received a complaint asserting that a

licensed psychologist had failed to meet the minimum standards

of professional performance. Id. at 1338. Thereafter, a

probable cause panel of the Board of Psychological Examiners

convened a meeting to address the allegations, at the conclusion

of which the panel found that probable cause existed to believe

that the licensee had committed the charged violation. Id. In

lieu of filing a formal administrat ive complaint, the panel

instead elected, pursuant to the version of section 455.225(4),

Florida Statutes, in effect at that time, to issue a "letter o f

guidance . " Id. The letter provided:

This letter is sent to inform you of the

action in regard to the above - referenced

complaint. This complaint concerned

allegations that you failed to meet minimum

standards of performance in professional

activities in violation of Section

490.009(2)(s), Florida Statutes.

It has been determined that probable cause

exist s to believe that you have violated the

provisions governing the practice of

psychology. In light of the circumstances

presented, however, this case is closed with

issuance of this Letter of Guidance in lieu

of further administrative action.

It has been noted that your professional

care for the patient's children while

involved with the patient on a personal

basis, without disclosure to the father and

the school falls below minimum standards.

The Panel recommends that you review current

literature rega rding dual relationship

issues.

Id. at 1338.

19. Thereafter , the licensee filed a request for a fo rmal

hearing, which the agency ultimately denied on the basis that

the letter of guidance did not affect the licensee's substantial

interests and, therefo re, no hearing was required. Id. at

1338 - 39. The licensee appealed, contending that a probable

cause determination "is a permanent, indelible public

record . . . and that when anybody makes inquiry to the

Department concerning his record, this determin ation may be

revealed. " Id. at 1339. As for the letter of guidance, the

licensee argued that the document constituted an order

determining guilt that could be used against him in the future.

Id. at 1339 - 40. Indeed, the record contained comments from th e

panel members that the letter could be used to show that the

licensee "knew what he was doing, he knew it was wrong." Id. at

1340. Finally, the licensee asserted that, because each of

these actions affected his substantial interests, he was

entitled to an administrative hearing pursuant to section

120.57, Florida Statutes. Id. The first district agreed,

holding:

[A] letter of guidance affects the

licensee's substantial interests as it can

be accessed by members of the public as well

as the Board and c an be used against

Dr. Brown in the event of future

proceedings. We hold , therefore, that the

probable cause determination and letter of

guidance do affect Dr. Brown's substantial

interests within the meaning of section

120.57, and that Dr. Brown adequate ly and

timely advised the Board and the Department

that this probable cause proceeding involved

disputed issues of fact, and that Dr. Brown

was thus entitled to a section 120.57

hearing as requested.

Id. at 1340 (e mphasis added); see also W. Frank Wells Nursing

Home v. Ag. for Health Care Admin. , 27 So. 3d 73, 74 (Fla. 1st

DCA 2009)(holding that a statement of deficiencies constituted

agency action requiring an administrative hearing). 5 /

2 0 . Applying the foregoing authority to the instant case,

it is evident that the issuance of a formal warning letter

pursuant to rule 65C - 22.010(2)(e)2.a. affects a licensee 's

subst antial interests. First , as in Brown , the Department is

obliged to release a copy of a warning letter to any inquiring

member of the publi c. Moreover , a formal warning letter, like

the letter of guidance in Brown , makes specific findings of

misconduct. Finally, the issuance of the formal warning letter

carries potent ial downstream consequences, as rule 65C -

22.010(2)(e) contemplates that su bsequent violation s of the same

Class II standard within a two - year period expose a licensee t o

increasingly harsh penalties .

B. Deprivation of a Point of Entry

2 1 . Having conclud ed that a licensee's substantial

interests are affected by the issuance o f a formal warning

letter for the first violation of a Class II standard , the

undersigned turns next to Petitioner's assertion that rule 65C -

22.010(2)(e) 2.a. operates to deny licensees a n offer of a point

of entry into the administrative process .

2 2 . The undersigned begins with the relevant portions of

r ule 65C - 2 2.010, which provide :

65C - 22.010 Enforcement.

(1) Definitions.

* * *

(d) "Violation" means a finding of

noncompliance by the department or local

licensing authority of a licensing standard.

* * *

2. " Class II Violat ion" is the second or

subsequent incident of noncompliance with an

individual Class II standard as described on

CF - FSP Form 5316. Class II violations are

less serious in nature than Class I

violations, and could be anticipated to pose

a threat to the health, safety or well - being

of a child, although the threat is not

imminent.

* * *

(2) Disciplinary Sanctions.

(a) Enforcement of disciplinary sanctions

shall be applied progressive ly for each

standard violation. In additio n, providers

will be offered technical assistance in

conjunction with any disciplinary sanction.

The department shall take into consideration

the actions taken by the facility to correct

the violation when determining the

appropriate disciplinary sanction .

* * *

(e) Disciplinary sanctions for licensing

violations that occur within a two year

period shall be progressively enforced as

follows:

* * *

2. Class II Violations.

a. For the first violation of a Class II

standard, the department shall is sue a

formal warning letter stating the

department' s intent to take administrative

action if further violations of the standard

occur. The violation will be cl assified as

"Technical Support."

b. For the second violation of the same

Class II standard, th e department shall

issue an administrative complaint imposing a

fine of $50 for each violation. This

violation, and subsequent violations, of the

same standard within a two yea r period will

be classified as "Class II."

c. For the third violation of the same

Class II standard, the department shall

issue an administrative complaint imposing a

fine of $60 per day for each violation.

d. For the fourth violation of the same

Class II standard, the department shall

issue an administrative complaint placing

t he provider' s license on probation status

for a period not to exceed six months, and

the department shall also issue an

administrative complaint imposing an

additional fine of $75 per day for each

violation.

e. For the fifth and subsequent violation

of the same Class II standard, the

department shall issue an administrative

complaint to suspend, deny, or revoke the

license, and the department shall also issue

an administrative complaint imposing an

additional fine of $ 100 per day for each

violation.

(em phasis added).

2 3 . It is true, as the D epartment has repeatedly noted ,

that the phrases "administrative hearing" and "point of entry"

appear nowhere in the text of the rule. Nevertheless, it is

evident from the rule's language and str ucture that a licen see

will not be offered a point of entry in cases involving a first

violation of a Class II standard.

2 4 . To understand why this is so, it is helpful to

conside r first the language relating to second and subsequent

violations of Class II standards. As q uoted above, the rule

provides that , under such circumstances, the Department " shall "

issue an " administrative complaint " ÏÏ language indisputably (and

correctly) signaling that the licensee will be offered a point

of entry into the administrative process . See F la. Admin. Code

R. 28 - 106.2015(4 )(d)( requiring administrat ive complaints to

include a statement that the licen see "has the right to request

a hearing to be conducted in accordance with Sect ions 120.569

and 120.57, F.S."); see also Aaron Cox Constr., I nc., v. Dep't

of Bus. & Prof'l Reg. , Case No. 09 - 1611F, 2009 Fla. Div. Adm.

Hear. LEXIS 1138, *16 (Fla. DOAH Sept. 2, 2009)(explaining that

an agency's filing of an administrative complaint constitutes a

"clear point of entry for administrative proceedings ").

2 5 . In contrast, the rule provides that, for a first

violation of a Class II standard, the Department :

[S] hall issue a formal warning letter

stating the department's intent to take

administrative action if further violations

of the standard occur.

F la. Admin. Code R. 65C - 22.010(2)(e)2.a.

2 6 . Several aspects of the foregoing language are notable.

First, the reference to "further violations" plainly indicate s

that a warning letter operates not to allege wrongdoing (as a

charging instrument would) but, rather, to summarily adjudicate

misconduct on the part of a licensee. Such a peculiar

usurpation of DOAH's fact - finding role is a strong indication

that , even in cases involving disputed factual issues, no

administrative proceeding s will follow.

2 7 . Further, and more important , the phrase " to take

administrative action if" denotes that , as far as the rule is

concerned, the issuance of a formal warning letter does not

constitute administrative action ; a nd if a warning letter do es

not constitute admin istrative action ( an erroneous premise, as

explained in the preceding section of this Order ), it

necessarily follows that the letter would not include any

language offering a point of entry into the administrative

process .

28 . If any doubt remains ÏÏ and the undersigned has

none ÏÏ this understanding of the rule i s consistent with, and

bolstered by, the Department's course of performance. In

particular , the Department's formal warning letters, including

the one issued to Petitioner, contain no language of fering a

point of entry into the administrative process. Moreover, it is

evident that the Department will deny , as it did in Petitioner's

case, a request for an administrative hearing to dispute a

warning letter 's findings . Indeed, upon the filing of

Pe t itioner's formal hearing request , the Department 's deputy

general counsel issued an "Order to Show C ause " that read :

The two Notices of Administrative Warning

. . . were not formal administrative

complaints and the Department did not

propose to take any action to deny, suspend,

or revoke Respondent's license, convert that

license to probation status or to impose an

ad ministrative fine. Per Rule 65C -

22.010(2)(e)2.a., F.A.C., the Notices of

Administrative Warning were "formal warning

letters stating the de partment's intent to

take administrative action if further

violations of the cited standards occur. "

A Notice of Administrative Warning regarding

Class II violations is a pre - disciplinary

"technical support" violation of license

standards per Rule 65C - 22. 010(2)(e)2.a.,

F.A.C., and not a disciplinary action

triggering the application of Chapter 120,

Florida Statutes. . . . Accordingly, it

does not appear petitioner is entitled to

the hearing it has requested.

(emphasis in original). 6 /

29 . The foregoi ng passage leaves no doubt as to the

Department's stance: a formal warning letter does not affect a

licensee's substantial interests, so a point of entry need not

be offered or granted. It should be no s urprise, then, that

rule 65C - 22.010(2)(e)2.a. manif ests this erroneous position.

3 0 . For the reasons elucidated above, Petitioner has

demonstrated by a preponderance of the evidence that rule 65C -

22.010(2)(e)2.a. operates to deny licensees an offer of a point

of entry into the administrative process. I n light of this

determination, it is necessary to reach the third issue raised

in the Petition: does the rule's denial of an offer of a point

of entry constitute an invalid exercise of delegated legislative

authority?

C. Invalid Exercise of Delegated Le gislative Authority

3 1 . The undersigned begins with section 120.56(3)(a),

Florida Statutes, which reads :

(3) CHALLENGING EXISTING RULES; SPECIAL

PROVISIONS.

(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.

3 2 . "I nvalid exercise of delegated legislative auth ority"

is defined to include, inter alia, situations where t he existing

rule:

[E]nlarges, modifies, or contravenes the

specific provisions of law implemented,

citation to which is required by

s. 120.54(3)(a)1.

§ 120.52(8)(c), Fla. Stat.

3 3 . Also included in s ect ion 120.52(8) is a concluding

paragraph ÏÏ sometimes called the "flush - left paragraph" ÏÏ in which

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 i s 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

enablin g legislation and is not arbitrary

and capricious or is within the agencyÓs

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 grantin g 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 enabling statute .

3 4 . T he flush - left paragraph has been the subject of

numerous ap pellate decisions, perhaps the most notable being

Southwest Florida Water Management District v. Save the Manatee

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

court considered a challenge to rule provision s 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

limited : the agency could grant only those exemptions tha t did

not "allow significant adverse [environmental] im pacts to

occur . " Id. at 600.

3 5 . Examining the then - recently revised flush - left

paragraph, the cou rt found clear and unambiguous the language

prohibiting a gencies from adopting any rules except th ose "that

implement or interpret the specific powers and duties granted by

the enabling statute. " 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.

3 6 . In the opinion's most memorable paragraph, the court

summarized its position as follows:

[T]he a uthority 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 authori zes the rule at issue or it

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

be determined on a case - by - case basis.

Id. (emphasis in original) . In oth er words, the relevant

inquiry is whether the specific law being imp lemented evinces a

legislative intent to grant the agency the specific power or

specific duty behind the subject rule.

37 . Against this framework , the court in M anatee Club held

that, because the exemptions in question had been based

"entirely on prior approval," and because, moreover, the

ena bling 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. at 600.

38 . The first district revisited the flush - left language

in Department of Children and Family Services v. I.B. , 891 So.

2d 1168 (Fla. 1st DCA 2005), a case with significant parallels

to the instant proceeding. There , the department placed a chil d

("T.T.") in the temporary custody of I.B. and D. B., both of whom

subsequently filed a joint application seeking to adopt T.T.

Id. at 1169. The department later denied the application,

approving instead the petition of two of the child's biological

rela tives. Id. At the time of the denial, I.B. and D.B. were

advi sed, consistent with a rule in effect at that time (namely,

rule 65C - 16.008) , that they had the right to an administrative

hearing pursuant to chapter 120. I.B. and D.B. filed a timely

request for a formal hearin g, which the department forwarded to

DOAH .

39 . Shortly after I.B. and D.B.'s hearing request was

referred to DOAH, a new version of rule 65C - 16.008 took effect,

which provided that "[a]doptive applicants do not have the right

to appe al the department's decision on the selection of an[]

adoptive home for a particular child." Id. at 1169. Almost

immediately thereafter, the department moved to dismiss th e DOAH

proceeding on the ground that, pursuant to the amended rule,

I.B. and D.B. w ere no longer entitled to a substantial interest

hearing. Id.

4 0 . In response, I.B. and D.B. challenged the amended rule

language as an invalid exercise of delegated legislative

authority, arguing that neither the "specific authority" nor the

"law impl em ented" cited in rule 65C - 16.008 authorized the

department to suspend operation of the Administrative Procedure

Act. The ALJ agreed and invalidated the rule. Id. at 1169.

4 1 . On appeal, the department argued principally that the

rule was valid because section 409.145, Florida Statutes,

granted it broad powers and duties regarding the care of

dependent children. The department also contended that, in

light of the various statutory provisions that require

expeditious adoptions, it was authorized to adopt any rule that

accelerated the adoption process. See id. at 1171 n.4.

4 2 . In rejecting these arguments and affirming the ALJ's

order, the court explained first that , pursuant to the flush -

left language of section 120.52(8), I.B. and D.B. did not have

th e burden to identify statutory language inconsistent with, or

to the contrary of, the ru le at issue ; rather , the challengers

"needed to meet only the less onerous burden of proving the

absence of required statutory authority ." Id. at 1171. With

this unde rstanding, the court held:

Neither the "specific authority" nor the

"law implemented" cited in Rule 65C - 16.008

exempts the selection of adoptive homes from

the Administrative Procedure Act or

contemplates, much less authorizes, a rule

that would have that effect. . . .

[S]ection 409.145 confers broad powers and

duties on DCFS regarding the car e of

dependent children and makes specific

mention of "adoption placement," but has

nothing to say about excluding the selection

of adoptive homes from the disciplin e and

protections the Administrative Procedure Act

affords. The ALJ correctly determined that

these statutes did not confer authority on

DCFS to promulgate Rule 65C - 16.008(2).

In promulgating Rule 65C - 16.008(2), DCFS

sought to do nothing less than declar e

itself exempt from the Administrative

Procedure Act, insofar as its decisions on

applications for adoption are concerned.

DCFS lacks this self - insulating authority.

While "it is the department's rule to

protect the children in the State's care and

to s elect suitable and permanent placement

for these children," absent any statutory

exemption, the Administrative Procedure Act

applies to DCFS, no less than to every other

"state department, and each departmental

unit."

Id. at 1172 - 73 (internal citations om itted).

4 3 . Returning to the cas e at hand, rule 65C - 22.010

designates sections 402.305 and 402.310, Florida Statutes, as

the "law implemented" and "rulemaking authority." S ection

402.305 is plainly of no help to the Department , for that

provision merel y prescribes a host of licensing standards; the

statute contains no mention of administrative proceedings or

their availability to licensees.

4 4 . Section 402.310, the other purported basis of

authority, provides, in relevant part:

(1)(a) The department or local licensing

agency may administer any of the following

disciplinary sanctions for a violation of

any provision of ss. 402.301 - 402.319, or the

rules adopted thereunder:

1. Impose an administrative fine n ot to

exceed $100 per violat ion . . . .

2. Convert a license or registration to

probation status . . . .

3. Deny, suspend, or revoke a license or

registration.

* * *

(c) The department shall adopt rules to:

1. Establish the grounds under which the

department may deny, susp end, or revoke a

license or registration or place a licensee

or registrant on probation status for

violations of ss. 402.301 - 402.319.

2. Establish a uniform system of procedures

to impose disciplinary sanctions for

violations of ss. 402.301 - 402.319. The

uniform system of procedures must provide

for the consistent application of

disciplinary actions across districts and a

progressively increasing level of penalties

from predisciplinary actions, such as

efforts to assist licensees or registrants

to correct the statutory or regulatory

violations , and t o severe disciplinary

sanctions . . . .

* * *

(2) When the department has reasonable

cause to believe that grounds exist for the

denial, suspension, or revocation of a

license or registration; the conversion of a

license or registration to probation status;

or the imposition of an administrative fine,

i t shall determine the matter in accordance

with procedures prescribed in chapter 120 .

(emphasis added).

4 5 . As reflected above, section 402.310 (1)(c)2. directs

the department to utili ze "a progressively increasing " spectrum

of penalties ranging from "p redisciplinary actions" (at the low

end) to revocation of the license (at the high end).

Unremarka bly, the statute further provides, in subsection (2),

that any attempt by the Department to convert a license to

probation, impose a fine, or suspend or revo ke a license must be

conducted in accordance with chapter 120. Nowhere does section

402.310 specifica lly authorize the Department to deny an of fer

of a poi nt of entry if it affects a licensee's substantial

interests by some other means ÏÏ e.g., the issuan ce of a formal

warning letter .

4 6 . The Department resists this conclusion . It argues

that even if the rule operates to deny a point of entry (a

question the undersigned has already settled), the rule is

n evertheless valid because a formal warning letter constitutes

"predisciplinary action," and section 402.310(2) ÏÏ which , as

noted above, provides that chapter 120 shall govern actions

involving a f ine, probation, suspension, or revocation ÏÏ contains

no reference to pre d isc i plinary actions. The Department

c ontends, in other words, that the rule passes muster because

section 410.310 (2) is silent concerning the applicability of

chapter 120 to prediscipline.

4 7 . Assuming, arguendo, that the issuance of a formal

warning letter constitutes a form of "prediscipl inary action "

envisioned by the statute , the Department 's position is

foreclosed by Brown v. Department of Professional Regulation ,

602 So. 2d 1337 (Fla. 1st DCA 1992), discussed supra . T here,

the first district was called upon to interpret the 1989

codif ication of section 455.255(4), which read, in pertinent

part:

If the probable cause panel finds that

probable cause exists, it shall direct the

department to send the licensee a letter of

guidance or to file a formal complaint

against the licensee. The de partment shall

follow the directions of the probable cause

panel regarding the filing of a formal

complaint. If directed to do so, the

department shall file a formal complaint

against the regulated professional . . . and

prosecute that complaint pursuant to the

provisions of chapter 120.

48 . The agency in Brown contended that, because the

foregoing language was silent concerning the availability of 120

proceedings in cases where a letter of concern is issued, and

because the statute directed it to pros ecute "administrative

complaints" pursuant to chapter 120 , a licensee receiving a

letter of concern was not entitled to a point of entry. The

court disagreed, rejecting the notion that a statue's silence

concerning the applicability of chapter 120 authori zes the

preclusion of administrative proceedings:

The Department stated in the appealed order

that while sub section 455.225(4) . . .

provides for commencement of proceedings

pursuant to chapter 120, Florida Statutes

(1989), the subsection provides for suc h

proceedings only upon the filing of a formal

complaint. According to the Department,

letters of guidance are neither formal

complaints nor decisions affecting a

licensee's substantial interests; thus, a

licensee who receives a letter of guidance

is not entitled to a section 120.57

H earing. . . .

Turning now to the express language of the

statutes involved, subsection 455.255(4)

expressl y provides that if the Departme n t

files a formal complaint, such complaint

shall be prosecuted pursuant to the

provisi ons of chapter 120. This subsection

does not, however, preclude a hearing

pursuant to chapter 120 in the event the

Probable Cause Panel decides , upon a finding

of probable cause, to direct the Department

to issue a letter of guidance rather than

file a fo rmal complaint .

Id. at 1339 - 40 (emphasis added).

49 . The short of it is this: a statute's silence

concerning the applicability of chapter 120 to a particular

matter does not authorize ÏÏ let alone specifically authorize ÏÏ an

agency to disregard the fun damental requirements of the

Administrative Procedure Act, even if the statute explicitly

directs the agency to prosecute other matters pursuant to

chapter 120. Thus , the absence of any reference to

"p redisciplinary actions" in section 410.310(2) doe s not entitle

the Department to deny the protections of chapter 120 to a

licensee who receives a formal warning letter.

5 0 . For these reasons , rule 65C - 22.010(2)(e)2.a. enlarges,

modifies, or contravenes the specific provisions of law

implemented insofar as it denies licensees an offer of a point

of entry into the administrative process. See Dep't of Child. &

Fam. Servs. v. I.B. , 891 So. 2d 1168, 1172 (Fla. 1st DCA 2005) .

The rule therefore constitutes an invalid exercise of delegated

legislative authority, in violation of section 120. 56(3)(a).

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED:

1. Florida Administrative Code Rule 65C - 22.010(2)(e)2.a.

constitutes an invalid exercise of delegated legislative

authority insofar as it denies licensees an offer of a point of

entry into the administrative process .

2. Petitioner shall have 30 days from the date o f this

Final Order to file a motion for attorney's fees and costs, t o

which motion it shall attach appropriate af fidavits (attesting

to the reasonableness of the fees) and essential documentation

in support of the claim, such as time sheets, bills, and

receipts.

DONE AND ORDERED this 20th day of January, 2015 , in

Tallahassee, Leon County, Florida.

S

_________________ __________________

Edward T. Bauer

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 January, 2015 .

ENDNOTES

1 / The original Petition and Amended Petition also alleged that

the rule unlawfully deprives licensees of "the assistance and

techni cal guidance under Section 402.310." Petitioner

subsequently abandoned this argument in its December 17, 2014,

"Notice of Partial Voluntary Dismissal."

2 / Petitioner's Proposed Final Order is erroneously titled

"Respondent's Proposed Final Order."

3 / OA Tr., pp. 15 - 18. The undersigned commends Respondent's

counsel for his candor and professionalism.

4 / See Amended Joint Prehearing Stipulation , p. 8.

5 / In W. Frank Wells Nursing Home v. Agency for Health Care

Administration , 27 So. 3d 73, 74 (Fl a. 1st DCA 2009), the court

held that the issuance of a statement of deficiencies

"constituted Agency action requiring an administrative hearing."

In so holding, the court emphasized that the test articulated in

Agrico Chemical Co. v. Department of Enviro nmental Regulation ,

406 So. 2d 478 (Fla. 2d DCA 1981 ) , "only applies to third

parties," and noted that it had erroneously applied Agrico to a

specifically named party (i.e., a party whose substantial

interests were determined in the proceeding ) in an earli er

decision, Menorah Manor, Inc., v. Agency for Health Care

Administration , 908 So. 2d 1100 (Fla. 1st DCA 2005).

6 / Oddly, the Department's Order to Show Cause further provided

that if Petitioner again violated one of more of the Class II

standards enume rated in the warnings, an administrative

complaint would be filed alleging "both the occurrence of the

violation(s) listed in the Notice of Administrative Warning and

the subsequent violation(s) of the same standards. . . . Thus,

Respondent's due process rights would be preserved." Joint

Ex. 5. The undersigned notes that nothing in rule 65C - 22.010

suggests that the "findings" contained in a formal warning

letter will be litigated alongside subsequent violations of the

same standard. Even assuming, howe ver, that the ru le so

contemplates , such a procedure would not preserve a licensee's

due process rights. Fla. League of Cities, Inc. v. Admin.

Comm'n , 586 So. 2d 397, 413 (Fla. 1st DCA 1991)("Simply

providing a point of entry, however, is not enough if th e point

of entry is so remote from the agency action as to be

ineffectual as a vehicle for affording a party whose substantial

interests are or will be affected by agency action a prompt

opportunity to challenge disputed issues of material fact in a

120.57 hearing.")(emphasis added).

COPIES FURNISHED:

Howard J. Hochman, Esquire

Law Offices of Howard J. Hochman

7695 Southwest 104th Street, Suite 210

Miami, Florida 33156

(eServed)

Paul Sexton , Esquire

Department of Children and Families

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399

(eServed)

Rebecca Kapusta, Interim General Counsel

Department of Children and Families

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

(eServed)

Mike C arroll, Secretary

Department of Children and Families

1317 Winewood Boulevard

Building 1, Room 202

Tallahassee, Florida 32399 - 0700

(eServed)

Liz Cloud, Program Administrator

Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahasse e, Florida 32399

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affec ted 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 n otice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.