14-006037RU Ron Beermunder vs. Department Of Agriculture And Consumer Services, Division Of Licensing Status: Closed DOAH Final Order on Friday, April 10, 2015.

Summary: Unadopted manual and form use stopped in 2014. No use in criminal prosecution instigated by Dept. and license action due to criminal case. Charges of statute violation not handbook. Petitioner did not show standing or application of un-adopted policies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RON BEERMUNDER,

Petitioner,

vs. Case No. 14 - 6037RU

DEPARTMENT OF AGRICULTURE AND

CONSUMER SERVICES, DIVISION OF

LICENSING,

Respondent.

_______________________________/

FINAL ORDE R

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings heard this case on

February 11, 2015 , in Tallahassee, Florida.

APPEARANCES

For Petitioner: Ronald G. Beermunder, pro se

6001 Jeff Ates Road

Milton, Florida 32583 - 8241

For Respondent: Staci A. Bienvenu, Esquire

Lucy Schneider, Esquire

Department of Agriculture

and Consumer Services

Post Office Box 3168

Tallahassee, Florida 32315 - 3168

STATEMENT OF THE ISSUE S

A. Does Petitioner, Captain Ron ald G. Beermunder , have

standing to bring this action?

B. Does the Division of Administrative Hearings (DOAH) hav e

jurisdiction over this matter?

C. Do the 2008 Firearms Instructor ' s Training Manual and

the 2011 Certificate of Firearms Proficiency for St atewide

Firear m License constitute agency statements that amount to a

rule as defined in section 120.52(16), Florida Statutes (201 4 ) ? 1/

D. If so, has the Division adopted the statements through

the c hapter 120 rulemaking procedure ?

PRELIMINARY STATEMENT

This is the fifth effort by firearms instructor Captain

Ronald G. Beermunder, proceeding pro se , to challenge in various

ways the Department of Agriculture and Consumer Services

(Department) , Division of Licensing ' s (Division), use of the

2008 Firearms In structor ' s Training Manual (2008 Manual) and the

2011 Certificate of Firearms Proficiency for Statewide Firearm

License (2011 Certificate) . 2 / His efforts resulted in the

Department initiating rulemaking to adopt an updated training

manual and certificate. On May 1, 2014 , the Department filed

updated Florida Administrative Code Rules 5N - 1.100 and 5N - 1.134 ,

curing the failure to adopt rules incorporat ing the manual and

certificate issue s alleged by Captain Beermunder.

Because the D ivision no longer relies on the 2008 M anual and

the 2011 Certificate and because the D epartment adopted rules

incorporating later versions of the documents , the D ivision has

persistently sought to have this case dismissed , as moot , for

lack of jurisdiction and for lack of standin g of Captain

Beermunder. Those issues are addressed in this Final Order.

The undersigned conducted the final hearing in this matter

on February 11, 2015. Captain Beermunder ' s Exhibits 1A,

8A through 8G, and 8J were admitted ; E xhibits 8 H, 8 I, and 8 K were

not admitted. Captain Beermunder testified on his own behalf and

called Ed Warren and Ken Wilkinson of the D epartment to testify.

The Division ' s Exhibits 1 through 7 were admitted. The Division

requested and was granted official recognition of existing

rule 5N - 1.134. The Division also presented testimony from Ken

Wilkinson. In addition , the record contains, filed as ordered by

the undersigned, the following documents which were considered:

a warrant request (probable cause statement) ; an Amended

Infor mation ; a sentence recommendation ; and Clerk ' s notes in a

criminal proceeding against Captain Beermunder with multiple

charges of providing individuals fraudulent firearms training

certificates of proficiency.

The parties ordered a T ranscript, which wa s filed

February 24, 2015. Captain Beermunder timely filed his proposed

final order on March 6, 2015. The Division filed its proposed

final order untimely on March 9, 2015. Captain Beermunder moved

to strike the proposed final order for being untimely. The

undersigned denied the motion to strike. The time period for

filing proposed orders is extended nunc pro tunc to March 9,

2015 . T he Department ' s proposed final order is accepted as

timely.

FINDING S OF FACT

The Parties

1. The Division licenses and r egulates private

investigative, security, and repossession services in Florida.

§§ 493.6100 and 493.6101, Fla. Stat. Some Division licensees may

bear firearms in the course of regulated activities.

§ 493.6115(2), Fla. Stat. A licensee who bears a firea rm must

also possess a Class " G " license. § 493.6115(2) , Fla. Stat .

2. An applicant for a Class " G " license must satisfy

minimum training criteria for firearms established by statu t e and

rule of the Department. The criteria include 28 hours of range

and classroom training taught and administered by a Class " K "

licensee. § 493.6105(5) , Fla. Stat. Additionally, each

Class " G " licensee must submit proof annually that he or she has

received a minimum of four hours of firearms recertification

training, also taught by a Class " K " licensee during each year of

the license period. § 493.6113(3)(b), Fla. Stat.

3. Captain Beermunder has been a licensed Class " K "

firearms instructor since 2009.

A Brief History of the Manual, the Certificate, and Rules

4 . Over th e years, the Division has prepared various

versions of a Firearms Instructor ' s Training Manual for Class " K "

instructors to use when teaching Class " G " students.

5. The Division has also prepared various versions of a

Certificate of Firearms Proficiency for Statewide Firearm License

for use by Class " K " instructors to certify a Class " G " student ' s

completion of training.

6. In 1996, the Division , house d , at th e time , at the

Secretary of State, incorporated the existing versions of the

manual and the ce rtificate in Florida Administrative Code

R ule 1C - 3.1000(6), now r ule 5N - 1.100.

7. Over the following years, the Division prepared and

relied upon various updated versions of the m anual and the

c ertificate , including the 2008 version of the Manual and th e

2011 Certificate. It did not adopt these versions by reference

in a rule.

8. In the euphemistic words of Mr. Wilkinson, the assistant

director of the Division, who took that position in 2011 3 / :

" Well, I have to acknowledge that my predecessors were no t

observant in their duties to update manuals and go through the

proper rulemaking process. "

9. In 2014, after Captain Beermunder began his challenges

to use of the 2008 M anual and the 2011 C ertificate, the

D epartment amended r ule 5N - 1.134. The amendment incorporated

revised versions of the m anual and the c ertificate as permitted

by section 120.54(1)(h) . The rule, as amended , became effective

May 21, 2014.

10. The Division stopped relying on the 2008 Manual on

May 21, 2014, upon adoption of the 2014 ver sion.

11. On May 20, 2014, the Division sent all Class " K "

instructors an " Important Notice , " along with a compact disc (CD)

containing an electronic version of the 2014 Firearms

Instructor ' s Training Manual . The notice informed instructors of

the change s to the 2008 M anual and that a supply of revised 2011

Certificates would be forwarded in June 2014.

12. On June 25, 2014, the Division issued another

" Important Notice " to Class " K " instructors , along with a supply

of the newly adopted 2014 Certificates. It sent a second

CD because the one sent in May contained typographical errors.

13. The " Important Notice " informed Class " K " instructors

that they could continue using the 2011 Certificate until their

stock of certificates ran out.

14. I f an applicant submitted the 2011 C ertificate, the

Division would accept it .

New Criminal Statute in 2013 and Investigation of Beermunder

15. The Legislature amended s ection 493.6120, Florida

Statutes (2012) , in 2013 to make it a third - degree felony to

knowingly posses s, issue, sell, submit, or offer " a fraudulent

training certificate, proficiency form, or other official

document that declares an applicant to have successfully

completed any course of training required for licensure under

this chapter. " § 493.6120(5), F la. Stat.; Ch. 2013 - 251 , § 6,

Laws of Fla.

16. The Division began investigating several Class " K "

instructors, including Captain Beermunder, for violation of the

new statute.

17. The Division turned the investigation of Captain

Beermunder over to the Dep artment of Agriculture Law Enforcement

unit . Investigator Padgett issued a probable cause statement

that led to the State Attorney of Santa Rosa County charging

Captain Beermunder with multiple felony violations.

1 8 . During the Department ' s investigation and determination

of probable cause , the Division relied upon the 2008 Manual and

the 2011 Certificate, neither of which were ever adopted as

rules.

19 . Before this rule challenge hearing, Captain Beermunder

entered a no contest plea to nine felony counts of issuing

fraudulent certificates, reserving the right to appeal the ruling

on a motion in limine raising an issue of whether charges relied

upon an unpromulgated rule. The Division is acting against

Captain Beermunder ' s license o n the basis of his no co ntest plea.

20. The nine counts of amended information that Captain

Beermunder pled no contest to in criminal case n o. 13001343CFMXAX

charged him, using identical language except for the differing

names of the applicants and different dates in 2013, with i ssuing

a C ertificate of Proficiency for the Security Officer G - License

applicants when he " knew or reasonably should have known that the

certificate, form, or document was fraudulent in violation of

Sections 493.6120(7) and 493.6105(5), Florida Statutes. "

21. Section 493.6105(5) states among other things:

In addition to the requirements outlined in

subsection (3), an applicant for a Class " G "

license must satisfy minimum training

criteria for firearms established by rule of

the department, which training criteria

includes, but is not limited to, 28 hours of

range and classroom training taught and

administered by a Class " K " licensee;

however, no more than 8 hours of such

training shall consist of range training.

22. Every one of the charges to which Capta in Beermunder

pled no contest were based upon issuing certificates of firearms

proficiency fraudulently stating that the applicant had complete d

28 hours of training.

23. The Legislature established the requirement for

28 hours of training in 1997 when c ha pter 97 - 248, section 3, Laws

of Florida , amended section 493.6105, Florida Statutes (1996) , to

raise the hours of training requirement to 28 . The requirement

has been in effect ever since. It was in effect when Captain

Beermunder was first licensed in 20 09.

CONCLUSIONS OF LAW

24 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.56(4), 120.569 a nd 120.57(1),

Florida Statutes .

25 . An " unpromulgated rule challenge " pr esents a narrow and

limited issue. That issue is whether an agency has , by

declaration or action , established a statement of general

applicability that is a " rule , " as defined in section 120.52(16),

without going through the required public rulemaking pro cess

required by section 120.54. The validity of the agency ' s

statement is not an issue decided in an " unpromulgated rule

challenge. " The p etitioner bear s the burden of establishing by a

preponderance of the evidence that the challenged agency

statements are unpromulgated rules. See D ravo Basic Material

Co., Inc. 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).

26. The Division argues that DOAH does not have

jurisdiction beca use the Division is no longer using the 2008

M anual and 2011 C ertificate challenged as unpromulgated rules and

has adopted rules incorporating more current versions of both .

This defense does not raise a jurisdictional issue . It raises a

factual defense of whether the person claiming an agency has an

unadopted rule has successfully proved the existence and

application of it. The plain language of the statute requires a

p etitioner to prove " agency statement of general applicability

that implements, interp rets, or prescribes law or policy . "

§ 120.52(16) , Fla. Stat .

27. The Division relies upon Dep artment of Rev enue v.

Sheraton Bal Harbor Assoc iation , LTD , 864 So. 2d 454 (Fla. 1 st

DCA 2003) , to support its argument. That brief one - paragraph per

curiam opin ion did not explain the court ' s reasonin g . It advis ed

that section 120.56, Florida Statutes (2003) , " does not authorize

a rule challenge to a rule that is no longer in existence , and

therefore, DOAH [lacks jurisdiction to hear a challenge to the no

longer extant rule] . " S ection 120.56(1), Florida Statutes

(2003) , provided for a challenge to a rule or proposed rule. The

situation is different for an unadopted rule. A rule exists or

it does not. If it does, it is subject to official notice in a

legal pro ceeding. § 90.202(9) , Fla. Stat . The existence of an

agency statement meeting the definition of rule that has not been

adopted as a rule must be proven.

28. The Division also cites Hulmes v. Div ision of

Ret irement , Dep artment of Admin istration , 418 S o. 2 d 269 (Fla.

1 st DCA 1982) , to support its theory. The court held in that

case that a rule defining employee s eligible for membership in

the state retirement system promulgated under a system

established by section 134.11, Florida S tatutes (1945 - 53) , was

n ot automatically re - promulgated when the L egislature

substantially re - worked the system by enact ing a successor

statute, chapter 122, in 1955. The 195 5 law passed before the

employee began the employment he relied upon to establish

eligibility. T he issue decided was whether the rule relied upon

automatically carried over into the successor system. The court

held that it did not. The holding did not address the validity

of a rule or the jurisdiction of DOAH. In fact , the case was a

section 120.57 procee ding in which the Division of Retirement had

adopted the findings of a c hapter 120 h earing o fficer. The case

did not involve a challenge to an unpromulgated rule under

section 120.56(3)(a).

29. The Division argues that the reasoning of these cases

should result in a finding of no jurisdiction here. It posits

that the only relief authorized is requiring the agency to

" immediately discontinue all reliance upon the statement

[determined to be an unpromulgated rule] or any substantially

similar statement as a basis for agency action. " § 120.56(4)(d) ,

Fla. Stat . Since the Division claims it is not using the

statement, it argues the case is moot. Whether the Division is

using the statement is a matter of proof, not a matter of

jurisdiction.

30. The Division a lso cites NAACP Inc. v. Florida Board of

Regents , 876 So. 2d 636 (Fla. 1st DCA 2004) , to support its

mootness claim . Again, this is a different sort of case. In

NAACP , the State Board of Education, the entity that adopted the

challenged rules affecting a dmission to state universities, had

authority over university admissions at the time of the

challenge . But a constitutional amendment , adopted while the

case was pending at the Florida Supreme Court, had vested the

authority to make rules on the universit y admissions with a new

entity, the Board of Governors of the State University System.

As a constitutional entity , the Board was not subject to the

Administrative Procedure Act. Consequently , neither the court

nor DOAH had jurisdiction to grant any relie f after the

constitutional change .

31. Witmer v. Department of Business and Professional

Reg ulation , 662 So. 2d 1299 (Fla. 4th DCA 1995), offers a

different view of challenges to expired rules. It is quite

analogous to this case because the challenge was by a licensee

disputing a rule under which the Department was acting to suspend

his license.

32. Witmer was the subject of an action to suspend his

license for vio l a ti o n of emergency rules. The DOAH hearing

officer ruled that Witmer did not have standing to challenge the

validity of an emergency rule that he was charged with violating ,

because the emergency rules had been replaced by permanent rule s .

The O pinion reversed the Final Order and went on to find the

challenged emergency rules invalid. But s ee Off . of I ns. Reg . v.

Serv. Ins. Co. , 50 S o. 3d 637, 638 ( F la. 1st DCA 2010) (rejecting

the reasoning of Witmer ).

33. Captain Beermunder argues that his situation is much

like Witmer ' s because the criminal prosecution against him and

the licensure action ba sed upon his plea in the criminal

proceeding rest upon the 2008 M anual and 2011 C ertificate that

had not been adopted as rule or incorporated into a rule by

reference. E ven if one accepts the theory, th e evidence did not

prove it.

34. The F indings of F act establish that the specific

fraudulent act with which Captain Beermunder is charged is linked

to the long standing statutory requirement for 28 hours of

training found in section 493.610(5 ) . Consequently , Captain

Beermunder is not presently suffering fro m the effects of the

policy that the Division has replaced by rule. Nor was he when

he brought this action. Captain Beermunder is not a " person

substantially affected by an agency statement " authorized to

challenge the statement by section 120.56(4).

35. The Findings o f Fact likewise establish that even under

Captain Beermunder ' s theory, the criminal prosecution and license

actions do not rely upon the alleged unpromulgated rules. They

rely upon a statute. Consequently , Captain Beermunder has not

proven the present existence or application of the alleged

unadopted rule. This also means he has not proven he is

substantially affected by the statement . T herefore , he lacks

standing to bring this proceeding.

36. The Division also makes a " no harm, no foul " argument.

That theory basically says the 2008 M anual and 2011 C ertificate

are substantially similar to the manual and certificate last

adopted in 1996. In light of the resolution of this matter on

other grounds , there is no need to address this argumen t.

37. Captain Beermunder also argues that the Division never

gave him notice of the 28 - hour requirement. That is not relevant

to the existence of an asserted unadopted rule and is not

addressed in this proceeding. This does not preclude it being

raise d in section 120.57 proceedings involving his license.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that this case is dismissed.

DONE AND ORDERED this 10 th day of April , 201 5 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 10 th day of April , 2015 .

ENDNOTE S

1 / All references to Florida Statutes are to the 201 4 version ,

unless otherwise indicated.

2 / Beermunder v . Dep ' t Agric . & Consumer Servs . , Case

N os. 13 - 3861, 13 - 4239RX, 13 - 4252RU, and 14 - 001203RP.

3 / It was not until January 2014 that the Department ini ti ated

rulemaking to adopt by incorporation the current manual and

certificate. Fla. Admin. Reg., Vol. 40, No. 07 (Jan. 10, 2014) .

COPIES FURNI SHED:

Honorable Adam Putnam

Commissioner of Agriculture

Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Ernest Reddick, Chief

Department of State

R. A. Gray Building

500 South Bronough Str eet

Tallahassee, Florida 32399 - 0250

(eServed)

Alexandra Nam

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Administrator Procedure Committee

Room 680, Pepper Bui lding

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ronald G. Beermunder

6001 Jeff Ates Road

Milton, Florida 32583 - 8241

(eServed)

Lorena Holley, General Counsel

Department of Agriculture

and Consumer Services

Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

(eServed)

Lucy Schneider, Esquire

Department of Agriculture

and Consumer Services

Division of Licensing

Post Office Box 3168

Tallahassee, Florida 32315 - 3168

(eServed)

Staci A. Bienvenu, Esquire

De partment of Agriculture

and Consumer Services

Post Office Box 3168

Tallahassee, Florida 32315 - 3168

(eServed)

Stephen Donelan, Agency Clerk

Division of Administration

Department of Agriculture

and Consumer Services

Suite 509

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

(eServed)

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 Flo rida 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 Hearings within 30 days of rendition

of the order to be reviewed, and a copy o f 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.