15-000002RX Catherine Anne Walton, D.C., And The Society For Clinical And Medical Hair Removal, Inc. vs. Board Of Medicine Status: Closed DOAH Final Order on Friday, May 1, 2015.

Summary: Petitioners demonstrated "petitions for declaratory statement" in rule 64B8-50.003(2) is an invalid rule, but did not meet burden for the challenge to other section of the rule, rule 64B8-56.002(2)(a), and four alleged unadopted rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CATHERINE ANNE WALTON, D.C., AND

THE SOCIETY FOR CLINICAL AND

MEDICAL HAIR REMOVAL, INC.,

Petitioners,

vs. Case No. 15 - 0002RX

BOARD OF MEDICINE,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case

on February 3, 2015, by video - teleconference in Tallahassee and

Tampa, Florida, before June C. McKinney, a duly - designated

Administrative Law J udge of the Division of Adm inistrative

Hearings.

APPEARANCES

For Petitioners: Jon M. Pellett, Esquire

Debra M. Metzler, Esquire

Barr, Murman & Tonelli, P.A.

201 East Kennedy Boulevard, Suite 1700

Tampa, Florida 33602

For Respondent: Edward A. Tellechea, Esquire

Robert Milne, Esquire

Megan Zbikowski

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

1. Whether Florida Administrative Code Rules 64B8 - 50.003(2)

and 64B8 - 56.002(2)(a) are invalid exercises of delegated

legislative authority in violation of section 120 .52(8), Florida

Statutes (2014).

2. Whether the following four statements are unadopted

rules as defined by section 120.52(20):

( i. ) The Electrolysis Council is a de facto

party to a petition for declaratory statement

filed with the Board of Medicine con cerning

the practice of electrology and need not

intervene in the proceeding before the Board

when considering rules and statutes related

to the practice of electrology;

( ii. ) The Electrolysis Council is a de facto

party to a petition to adopt, amend, o r

repeal an agency rule filed with the Board of

Medicine concerning the practice of

electrology and need not intervene in the

proceeding before the Board when the rules

concern the practice of electrology;

( iii. ) No additional materials can be

submitted to the Board of Medicine prior to

the meeting of the full Board for

consideration of a draft order on a petition

for declaratory statement; and

( iv. ) The Board of Medicine will not

consider any materials submitted for

consideration within 48 hours of a full Board

of Medicine meeting unless the Board Chair

allows their distribution to the members.

PRELIMINARY STATEMENT

This rule challenge proceeding was initiated on January 5,

2015, when Petitioners Catherine Walton, D.C. (ÐWaltonÑ), and the

Society fo r Clinical and Medical Hair Removal (ÐSCMHRÑ or

ÐSocietyÑ)(collectively ÐPetitionersÑ) filed a ÐPetition for

Determination of Invalidity of Existing Administrative Rules

64B8 - 50.003(2) and 64B8 - 56.002(2)(a), Florida Administrative

Code, and Non - Rule Policy Ñ (ÐPetitionÑ) with the Division of

Administrative Hearings.

The Petitioners challenge rule 64B8 - 50.003 as an invalid

exercise of delegated legislative authority, which exceeds the

grant of rulemaking authority provided to the Board of Medicine.

Petitione rs contest the rule requiring Ðpetitions for declaratory

statementsÑ and Ðpetitions to adopt, amend, or repeal rulesÑ for

matters related to the practice of electrology filed with the

Board of Medicine first be considered by the Electrolysis Council

for th eir consideration and recommendations. In the Petition,

Petitioners also challenge rule 64B8 - 56.002(2)(a) as an invalid

exercise of delegated legislative authority that exceeds its

grant of rulemaking authority. Petitioners further assert that

four state ments are unadopted rules as defined by s ection

120.52(20).

On January 7, 2015, a Notice of Hearing was issued

scheduling the hearing for February 3, 2015, in Tallahassee,

Florida. On the same date, an Order of Prehearing Instructions

was issued directing the parties to file a pre - hearing

stipulation. A joint pre - hearing statement was filed by the

parties on January 30, 2015, which contains a stipulation

regarding agreed - upon facts that, where relevant, have been

incorporated in the Findings of Fact below .

The final hearing was held as scheduled by video -

teleconference on February 3, 2015, with one site of the hearing

in Tampa and the other in Tallahassee, Florida. At the hearing,

the undersigned granted Petitioners' request for official

recognition witho ut objection. The Petitioners presented the

testimonies of the following witnesses: Allen Hall, Executive

Director of the Florida Electrolysis Council; Crystal Sanford,

Program Administrator for the Board of Medicine; Catherine

Walton, D.C.; William Alle n Moore, President of SCMHR; Allison

Dudley, former Executive Director for the Board (via deposition --

Exhibit X); and Joy Tootle, Consumer Member of the Board (via

late - filed deposition -- Exhibit VV). Petitioners offered Exhibits

A through VV that were adm itted at the hearing without objection.

Respondent presented the testimony of Allen Hall, Crystal

Sanford, William Moore, Catherine Walton, and Joy Tootle (via

late - filed deposition -- Exhibit VV). Respondent offered Exhibits

1 through 8 that were received into evidence without objection.

On February 18, 2015, Petitioners gave notice of filing late

E xhibit VV and included a late - filed attachment to the

February 5, 2015, deposition.

Post hearing, the parties jointly moved to supplement

additional stipulated facts, which the undersigned granted on

February 19, 2015.

The parties were each given 15 days from the date of filing

the transcript to file proposed final orders, written arguments,

and closing statements. On February 16, 2015, the Transcript was

filed . The parties ' Proposed Final Orders were timely filed and

have been considered in the preparation of this Final Order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2014 Florida Statutes.

FINDINGS OF FACT

1. SCMHR is an in ternational non - profit organization with

members that include persons licensed as electrologists in the

State of Florida. There are currently 177 certified

electrologists in the State of Florida who are also members of

SCMHR.

2. SCMHR supports all method s of hair removal and is

dedicated to the research of new technology that will keep its

members at the pinnacle of their profession, offering safe,

effective hair removal to their clients.

3. SCMHR advocates for its members. SCMHR also serves the

public by providing information on the newest technology in hair

removal. SCMHR offers the only national certification for

electrologists to gauge and/or show their knowledge of

electrology including the use of laser and light - based devices

for hair removal and reduction.

4. SCMHR offers four certifications to qualified

practitioners. Pertinent to its Petition for electrologists

licensed in Florida, there are two certifications: (1) the

ÐCertified Clinical ElectrologistÑ (ÐCCEÑ), for those

electrologist s usin g the needle modality in hair removal and

reduction; and (2) the next certification, to which the CCE is a

prerequisite, the ÐCertified Medical ElectrologistÑ (ÐCMEÑ) , for

those using laser and light - based devices for hair removal and

reduction. SCMHR als o offers two other certifications:

Ð Certified Laser Hair Removal Professional Ñ (ÐCLHRPÑ) and the

Ð Certified Pulse Light Hair Removal Professional Ñ (ÐCPLHRPÑ) .

B oth of these certifications are designed for allied health

practitioners; including physicians , nurses, electrologists and

other s authorized in the jurisdiction where they reside to

practice either laser or light - based hair removal. These

certifications are for practitioners who may not personally

practice electrology using needle hair removal mod alities or who

may practice in jurisdictions where an electrology license is not

required to use the lasers or light - based devices.

5. An individual electrologist is not required to be a

member of the Society in order to obtain certification or

maintain c ertification. Membership i n the Society is voluntary.

6. As of December 4, 2014, there were 954 electrologists

who hold certification through the Society but are not members of

the Society. One hundred and forty - six of the Florida

electrologists who are members of the Society hold CCE/CME

certification.

7. Members of the Society who are licensed in Florida who

wish to use laser and light - based devices in their practices must

comply with rule 64B8 - 56.002.

8. As an organization that advocates for its mem bers, the

Society will from time to time seek guidance on the rules and

regulations affecting the practice of electrology for its

members. It will also seek to lobby on behalf of its membersÓ

interests.

9. Petitioner Walton is a Florida licensed chiropra ctic

physician, a licensed practical nurse, a licensed massage

therapist, and a licensed electrologist under the provisions of

chapters 456, 460, 464, 478, and 480, Florida Statutes. Walton

was issued License Number EO2363. She is a CME/CCE and holds a

c urrent certificate with the Society. She is also a member of

the Society.

10. As part of her electrology training, Walton asserts

that she took the 30 - hour course in laser and light - based hair

removal set forth in rule 64B8 - 56.002(2)(a) and completed th e

course on or about October 25, 2011. She claims, however, to be

uncertain as to whether she has to take the aforementioned

30 - hour course again despite the fact that no one from the

Council or the Board has ever told her, verbally or in writing ,

tha t she has to take the course again, nor has she attempted to

ask anyone from the Council or the Board if she has to take the

course again. Council staff routinely advises callers that the

30 - hour course in laser and light - based hair removal only has to

be taken once.

11. As of the date of the hearing, Walton had neither

performed permanent hair removal on any person with an epilator

or laser, di d not possess a hair reduction laser, nor did she

have any electrology clients. She also did not have immediat e

plans to perform such services.

12. Respondent is the Board of Medicine (ÐBoardÑ). The

Electrolysis Council (ÐCouncilÑ) is statutorily created by

chapter 478 under the Board. Council members are appointed by

the Board.

13. On March 5, 2014, the Soci ety filed a Petition for

Declaratory Statement with the Board on behalf of its membership

and pursuant to section 120.565. It was scheduled to be heard by

the Board at their meeting scheduled for April 4, 2014.

14. On March 6, 2014, the Society filed an Amended Petition

for Declaratory Statement with the Board.

15. At the BoardÓs meeting of April 4, 2014, the Board took

up both the March 5, 2014, Petition for Declaratory Statement and

the March 6, 2014, Amended Petition for Declaratory Statement.

The Bo ard determined that pursuant to its rule 64B8 - 50.003(2),

the Petition for Declaratory Statement could not be heard at its

meeting. Instead, the Board decided that pursuant to Board rule,

the petition should have been first presented to the Council for

its recommendation on the petition. Consequently, the Society

withdrew its request.

16. On April 29, 2014, the Society filed its Petition f or

Declaratory Statement with the Board along with a Petition for

Variance or Waiver of rule 64B8 - 50.003(2) that were both copied

to the Council.

17. On June 6, 2014, at the Board meeting, the Board

considered SCMHRÓs Petition for Variance or Waiver and denied

SCMHRÓs request. At the same meeting, the Board then declined to

hear the April 29, 2014, Petition for Declarat ory Statement

relying on its rule 64B8 - 50.003(2), and referred the Petition for

Declaratory Statement to the Council for consideration and

recommendations.

18. The Council considered the April 29, 2014, Petition for

Declaratory Statement at its meeting o f July 7, 2014.

19. Assistant Attorney General Marlene Stern (ÐSternÑ), who

appeared on behalf of the Council, attended the April 3 - 4, 2014 ;

Jun e 6, 2014 ; August 1, 2014 ; and October 10, 2014, meetings of

the Board and the April 14, 2014, and July 7, 201 4, meetings of

the Council where the Petition for Declaratory Statement was

either considered or discussed by the Board or Council.

20. At the August 1, 2014, Board meeting, the CouncilÓs

attorney, Stern, at the direction of the Council provided the

Coun cilÓs recommendation to the Board verbally in person. The

Board ruled on the SocietyÓs April 29, 2014, Petition for

Declaratory Statement and directed Board counsel to draft a final

order reflecting the BoardÓs decision, which was to be presented

for appr oval at the BoardÓs October 2014 meeting.

21. On August 4, 2014, SCMHR filed a request for it to be

permitted to withdraw the request for declaratory statement,

which Board staff failed in error to include in the original

meeting materials for October 10, 2014.

22. On September 24, 2014, SCMHR submitted via electronic

correspondence additional materials for consideration by the

Board at its October 10, 2014, meeting.

23. The same day , Board staff placed the additional

information SCMHR submitted into the addendum materials for

consideration by the Board at their meeting of October 10, 2014.

The materials included the transcript of the April 3, 2014 , Rules

and Legislative Committee discussion regarding electrolysis rules

and the issue of certification by S CMHR.

24. Crystal Sanford ( Ð SanfordÑ), the BoardÓs Program

Operations Administrator, who works in the BoardÓs office is

responsible for preparing and coordinating the agenda materials.

Sanford follows the time frame for website electronic agenda

deadlines of seven days before the board meeting as set forth in

section 120.525(2). If materials are received after the

deadline, the protocol is to submit the request to the Board

counsel for a recommendation and then to the Board Chair for a

determination as to whether the materials should be placed on the

agenda and disseminated to the Board members.

25. On October 3, 2014, SCMHR submitted via electronic

correspondence more materials for consideration by the Board

consisting of a letter from an insurance carri er and a journal

article on laser claims.

26. On October 6, 2014, SCMHR sent the Board Staff office

another request to withdraw the Petition for Declaratory

Statement by electronic correspondence after being informed that

the original request provided on August 4, 2014, was not included

in the materials.

27. For the October 10, 2014, Board meeting, on the

recommendation of Board Counsel and the ChairÓs decision, SCMHRÓs

materials submitted on October 3, 2014, were not disseminated to

the members of the Bo ard for consideration because the Board had

already ruled on the SocietyÓs Petition for Declaratory Statement

on August 1, 2014, and the record was closed on that matter. The

draft order was being presented to the Board for approval as

previously instruct ed.

28 . At the October 10, 2014, B oard meeting , the Board

considered SCMHRÓs request to withdraw the Petition for

Declaratory Statement and denied the request. The Board also

denied the request by SCMHR to table consideration of the draft

order , and then approved the draft order on the Petition for

Declaratory Statement.

29. At or prior to the BoardÓs October 10, 2014, meeting,

the Society did not submit either a written or an ore tenus

motion seeking rehearing or reconsideration of the BoardÓs

August 1 , 2014, ruling on the Petition for Declaratory Statement.

30. At the October 10, 2014, Board meeting, the Board also

had a lengthy discussion about materials regarding PRN and

certification being difficult to review and prepare because of

last - minute subm ission s . The Board voted to preclude the

submission of additional Board materials submitted within 48

hours prior to the Board meeting. However, if submissions come

in within 48 hours, Sanford still checks with the Chair to

determine whether to distribut e the late - submitted materials.

31. The Order on the Petition for Declaratory Statement was

filed on October 20, 2014 , and SCMHR took a timely appeal of that

Order.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.56, 120.569 and 120.57(1),

Florida Statutes.

33. Petitioners challenge rules 64B8 - 50.003(2) and 64B8 -

56.002(2)(a) as "invalid exercise[s] of delegated legislative

authority" con trary to section 120.52(8), which provides in

pertinent part:

(8) "Invalid exercise of delegated

legislative authority" means action that goes

beyond the powers, functions, and duties

delegated by the Legislature. A proposed or

existing rule is an invali d exercise of

delegated legislative authority if any one of

the following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rul emaking authority, citation to which is

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

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required by

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

(d) The rule is vague, fails to establi sh

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without th ought

or reason or is irrational; or

(f) The rule imposes regulatory costs on the

regulated person, county, or city which could

be reduced by the adoption of less costly

alternatives that substantially accomplish

the statutory objectives.

A grant of rule making authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by the

enabling statu te. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary and

capricious or is within the agency's class of

powers and duties, nor shall an agency have

the auth ority to implement statutory

provisions setting forth general legislative

intent or policy. Statutory language

granting rulemaking authority or generally

describing the powers and functions of an

agency shall be construed to extend no

further than impleme nting or interpreting the

specific powers and duties conferred by the

enabling statute.

34. Petitioners have Ðthe burden of proving by a

preponderance of the evidence that the existing rule[s are] an

invalid exercise of delegated legislative authority as to the

objections raise[d].Ñ § 120.56(3)(a), Fla. Stat. The standard

of review is de novo. § 120.56(1)(e), Fla. Stat.

Standing

35. No dispute exists that Walton and the Society have

standing to challenge rule 64B8 - 50.003(2)

36. No dispute exists that SCMHR has standing to challenge

rule 64B8 - 56.002(2)(a). However, Respondent disputes Walton has

standing to challenge rule 64B8 - 56.002(2)(a).

37. Section 120.56(1)(a) establishes the test for standing

in a rule challenge and states in pertinent part:

a . Any person substantially affected by a

rule or a proposed rule may seek an

administrative determination of the

invalidity of the rule on the ground that

the rule is an invalid exercise of

delegated legislative authority.

38. The Ðsubstantially affecte dÑ test in section 120.56 is

a two - part test: Petitioner must establish that (1) the agency

statement will result in a real or immediate injury in fact; and

(2) the asserted interest is arguably within the Ðzone of

interestÑ intended to be protected or re gulated by the statutory

scheme at issue. Jacoby v. Fla. Bd. of Med. , 917 So. 2d 358, 360

(Fla. 1st DCA 2005).

39. In order to establish standing, Walton must show that

she will suffer a real or immediate injury in fact. The

requisite injury must be inj ury in fact and cannot be based on

speculation or conjecture. Office of Ins . Reg. and Fin . Servs .

Comm. v. Secure Enterprises, LLC. , 124 So 3d. 332, 336 (Fla 1 st

DCA 2013.)

40. WaltonÓs claim that she is unsure whether she must

repeat the 30 - hour course that she has already successfully

completed even though no one from the Council or Board has

informed her verbally or in writing that she has to retake the

course is speculative. Moreover, Walton has not even inquired to

clarify her uncertainty. Even tho ugh Walton, a licensee, is in

the zone of interest to be protected and regulated , Walton has

failed to demonstrate she is suffering any immediate impact

because of the rule. Thus, at this time, WaltonÓs alleged

"injury," which is based on nothing more tha n speculation and

conjecture , does not meet the Ðsubstantially affectedÑ threshold

and Walton does not have standing to challenge rule 64B8 -

56.002(2)(a).

Florida Administrative Code Rule 64B8 - 50.003(2)

41. Petitioners claim that rule 64B8 - 50.003(2) is an

invalid exercise of delegated legislative authority in violation

of section 120.52(8) on two grounds.

42. Rule 64B8 - 50.003(2) provides in pertinent part:

(2) Rulemaking proposals, petitions for

declaratory statement and petitions to adopt,

amend or repe al rules, which relate to the

practice of electrology shall first be

presented to the Council. The Council shall

consider the matter and make recommendations

to the Board as to the appropriate action to

be taken.

43. Rule 64B8 - 50.003(2) lists specific a uthority as section

478.43(1) and the law implemented as section 478.43(3). Section

478.43 provides in pertinent part:

(1) The board, with the assistance of the

Electrolysis Council, is authorized to

establish minimum standards for the delivery

of elect rolysis services and to adopt rules

pursuant to ss. 120.536(1) and 120.54 to

implement the provisions of this chapter.

* * *

(3) The board may delegate such powers and

duties to the council as it may deem proper.

44. Petitioners first challenge the se ction of the rule

Ðpetitions for declaratory statement.Ñ Petitioners contend that

the challenged section is invalid because there is no specific

law that authorizes the Board to delegate to the Council the

authority to first consider petitions for declara tory statement

and make a recommendation to the Board prior to the Board making

a final determination. Petitioners further assert the

Legislature did not authorize the Board to add a layer to the

declaratory statement statutory process set forth in sectio n

120.565.

45. Section 120.565 states in pertinent part:

(1) Any substantially affected person may

seek a declaratory statement regarding an

agencyÓs opinion as to the applicability of a

statutory provision, or of any rule or order

of the agency, as it applies to the

petitionerÓs particular set of circumstances.

(2) The petition seeking a declaratory

statement shall state with particularity the

petitionerÓs set of circumstances and shall

specify the statutory provision, rule, or

order that the petition er believes may apply

to the set of circumstances.

(3) The agency shall give notice of the

filing of each petition in the next available

issue of the Florida Administrative Register

and transmit copies of each petition to the

committee. The agency shall issue a

declaratory statement or deny the petition

within 90 days after the filing of the

petition. The declaratory statement or

denial of the petition shall be noticed in

the next available issue of the Florida

Administrative Register. Agency dispositio n

of petitions shall be final agency action.

46. Second, Petitioners challenge the section of rule 64B8 -

50.003 Ðpetitions to adopt, amend, or repeal rules.Ñ Petitioners

contend that no authority exists for the Board to create separate

rules of procedure in rule 64B8 - 50.003 (2) for rulemaking and by

setting up a Council recommendation the procedure is outside of

sections 120.54 and 120.536. Petitioners also assert the Board

does not have specific authority to delegate to the Council first

consideration of petitions to adopt, amend or repeal rules for

matters related to the practice of electrology.

47. Respondent counters that the Legislature has allowed

the Board to delegate its powers and duties under c hapter 478 to

the Council so that both entities can carry out their shared

regulatory responsibilities. Section 478.43(1) and (3) together

provide the requisite specific grant of legislative authority for

rule 64B8 - 50.003(2).

48. The Administrative Procedures Act (ÐActÑ) provides that

Ð[a]n agency may a dopt only rules that implement or interpret the

specific powers and duties granted by the enabling statute.Ñ

§ 120.52(8), Fla. Stat. However, as used in the Act, the term

ÐspecificÑ is not a synonym for Ðdetailed.Ñ See SW Fla. Water

Mgmt. Dist. v. Save t he Manatee Club Inc. , 773 So. 2d 594, 599

(Fla. 1st DCA 2000). ÐThe question is whether the statute

contains a specific grant of legislative authority for the rule,

not whether the grant of authority is specific enough .Ñ Smith v.

DepÓt of Corr. , 920 So. 2d 638, 641 (Fla. 1st DCA 2005)(quoting

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

49. ÐIf the enabling statute had to be as detailed as the

rules themselves, the point of rulemaking would be defeated

entirely.Ñ Consolidated - Tomoka Land Co. v. DepÓt of Bus. and

ProfÓl Reg . , 717 So. 2d 72 (Fla. 1st DCA 1998).

50. The Legislature statutorily created the Council under

the Board and designated them as collaborative bodies so that the

Council may provide the subject matter expertise for ele ctrology.

Section 478.43(1) constructs the two tiered system and mandates

the Board , Ðwith the assistance of the Electrolysis Council , Ñ do

certain things including Ðadopt rules pursuant to ss . 120.536(1)

and 120.54.Ñ

51. Section 120.536 (1) provides in pe rtinent part:

(1) A grant of rulemaking authority is

necessary but not sufficient to allow an

agency to adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and du ties granted by the

enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary and

capricious or is within the 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

granting rulemaking authority or generally

describing the powers and functions of an

agency shall be construed to extend no

further than implementing or interpreting the

specific powers and duties conferred by the

enabling statute.

52. Section 120.54(7)(a) provides in pertinent part:

(a) Any person regulated by an agency or

having substantial interest in an age ncy rule

may petition an agency to adopt, amend, or

repeal a rule or to provide the minimum

public information required by this chapter.

The petition shall specify the proposed rule

and action requested. Not later than 30

calendar days following the date of filing a

petition, the agency shall initiate

rulemaking proceedings under this chapter,

otherwise comply with the requested action,

or deny the petition with a written statement

of its reasons for the denial.

53. Section 478.43(1) contains the specifi c grant of

legislative authority for the Board to Ðadopt rulesÑ Ðwith the

assistance of the Electrolysis Council.Ñ The Legislature did not

limit the Board to any particular method for adopting rules in

the enabling statute. In fact, the portion of the ch allenged

rule Ðpetitions to adopt, amend or repeal rulesÑ mirrors the

language in section 120.54(7)(a). Accordingly, the

aforementioned section of the challenged rule 64B8 - 50.003(2) is a

valid exercise of legislative authority.

54. However, the Legislat ure did not explicitly authorize

the Board to consult the Council regarding petitions for

declaratory statement. Applying the test of Save the Manatee ,

there is simply no language within the text of section 478.43(1)

which suggests a Ðspecific grant of le gislative authority for the

rule.Ñ Therefore, the language contained in rule 64B8 - 50.003(2),

which states Ðpetitions for declaratory statement , Ñ impermissibly

exceeds the authority granted under the enabling statute , and is

an invalid exercise of legislat ive authority.

Florida Administrative Code Rule 64B8 - 56.002(2)(a)

55. Petitioner SCMHR also challenges rule 64B8 - 56.002(2)(a)

as an invalid exercise of delegated legislative authority in

violation of section 120.52(8) because it exceeds the grant of

rulem aking authority provided to the Board.

56. Rule 64B8 - 56.002(2)(a) provides in pertinent part:

(2) An electrologist may not use laser or

light - based devices for hair removal or

reduction unless they:

(a) Have completed training in laser and

light - based hair removal and reduction that

meets the requirements set forth in

subsections 64B8 - 52.004(2) and (3), F.A.C.;

57. Rule 64B8 - 52.004 provides in pertinent part:

(2) The course consists of thirty (30) hours

of instruction, which may include 15 hours of

home - study didactic training, in the use of

laser and light - based hair removal or

reduction devices, including:

* * *

(3) The instructors of each laser and light -

based hair removal course have one year of

post - certification experience. Verifiable

docum entation of this experience must be

submitted to the Council with the

application.

58. Rule 64B8 - 56.002 identifies as specific authority

section 478.43 and the l aw i mplemented sections of the challenged

rule are 458.331(l)(v), 458.348(3), 478.42(5), and 478.43(4).

59. Petitioner maintains that the challenged rule 64B8 -

56.002(2)(a) requires electrologists and instructors who wish to

use laser and light - based devices for hair removal or reduction

to complete 30 hours of education under the requirements of rules

64B8 - 52.004(2) and (3).

60. Petitioner also contends that there is no express

authority for the Board to set a number of training hours

required for licensed electrologists to use laser and light - based

device s in their practices. Petitioner argues that the Board

only has authority regarding training required for an

electrologist seeking licensure pursuant to section 478.50(4),

which limits continuing education hours to 20 for license

renewal , and section 478.45(1)(e), which provides a maximum of

12 0 class room hours for initial licensure. Petitioner also

maintains neither section 478.50 nor section 478.45 allows the

Board to require an additional 30 hours of education in the use

of laser and light - based devices and therefore the rule is

invalid.

61 . Petitioner further contends that sections 458.348(3)

and 459.025(2) prohibit rule 64B8 - 56.002(2)(a) and restrictive

language exists to preclude the challenged rule in sections

458.348(6) and 459.025(5).

62. Section 458.348(3) provides in pertinent par t:

(3) Protocols requiring direct supervision.

Ï All protocols relating to electrolysis or

electrology using laser or light - based hair

removal or reduction by persons other than

physicians licensed under this chapter or

chapter 459 shall require the perso n

performing such service to be appropriately

trained and work only under the direct

supervision and responsibility of a physician

licensed under this chapter or chapter 459.

63. Section 459.025(2) provides in pertinent part:

( 2) Protocols requiring dir ect supervision.

Ï All protocols relating to electrolysis or

electrology using laser or light - based hair

removal or reduction by persons other than

osteopathic physicians licensed under this

chapter or chapter 458 shall require the

person performing such s ervice to be

appropriately trained and to work only under

the direct supervision and responsibility of

an osteopathic physician licensed under this

chapter or chapter 458.

64. Sections 458.348(6) and 459.025(5) state:

LIMITATION ON RULEMAKING - This sect ion is

self - executing and does not require or

provide authority for additional rulemaking.

65. Respondent correctly points out in its Proposed Final

Order that section 478.43(4) provides the authority for the Board

to adopt Ðrules related to the curricul umÑ and rules Ðrelated to

. . . continuing education requirements.Ñ

66. Section 478.43(4) provides in pertinent part:

(4) The board, in consultation with the

council, shall recommend proposed rules, and

the board shall adopt rules for a code of

ethics f or electrologists and rules related

to the curriculum and approval of

electrolysis training programs, sanitary

guidelines, the delivery of electrolysis

services, continuing education requirements,

and any other area related to the practice of

electrology.

67. The undersigned rejects PetitionerÓs argument because

PetitionerÓs basis for the position, sections 458.348(3) and

459.025(2), each address supervising protocols for physicians and

physician extenders. However, neither section is dealing with

the ch allenged ruleÓs subject matter regarding protocols of laser

or light - based devices.

68. Likewise, PetitionerÓs challenge of rule 64B8 -

56.002(2)(a) regarding the 30 - hour course is also misplaced.

Rule 64B8 - 56.002(2)(a) fails to have any language mandating 30

hours. The challenged rule refers to rule 64B8 - 52.004, the rule

which contains the language Ð30 hours curriculumÑ in section two.

If Petitioner was concerned about the 30 - hour curriculum, the

proper solution would have been to challenge the actual ru le

requiring 30 hours, rule 64B8 - 52.004, not the rule that

incorporates such. Challenging 64B8 - 56.002(2)(a), standing

alone, leaves the requirements for the course specified in

64B8 - 52.00 4 in t act.

69. Accordingly, Petitioner has not met the burden to

establish by a preponderance of the evidence that rule 64B8 -

56.002(2)(a) is an invalid exercise of delegated legislative

authority.

Challenged Ðnon - ruleÑ agency policies (i) through (iv)

70. Petitioners maintain in its Proposed Final Order that

the Board has the following four agency statements that are

unadopted rules.

( i. ) The Electrolysis Council is a de facto

party to a petition for declaratory statement

filed with the Board of Medicine concerning

the practice of electrology and need not

intervene in the proceeding before the Board

when considering rules and statutes related

to the practice of electrology;

( ii. ) The Electrolysis Council is a de facto

party to a petition to adopt, amend, or

repeal an agency rule filed with the Board of

Medicine conc erning the practice of

electrology and need not intervene in the

proceeding before the Board when the rules

concern the practice of electrology;

( iii. ) No additional materials can be

submitted to the Board of Medicine prior to

the meeting of the full Bo ard for

consideration of a draft order on a petition

for declaratory statement; and

( iv. ) The Board of Medicine will not

consider any materials submitted for

consideration within 48 hours of a full Board

of Medicine meeting unless the Board Chair

allows their distribution to the members.

71. Section 120.56(4)(a) provides:

Any person substantially affected by an

agency statement may seek an administrative

determination that the statement violates

section 120.54(1)(a). The petition shall

include the tex t of the statement or a

description of the statement and shall state

with particularity facts sufficient to show

that the statement constitutes a rule under

section 120.52 and that the agency has not

adopted the statement by the rulemaking

procedure provid ed by section 120.54.

72. Petitioners demonstrated that they are Ðsubstantially

affectedÑ and have standing to contest the four challenged

statements. Although Petitioners did demonstrate standing,

Petitioners failed to adequately provide the proper fo undation to

establish the challenged statements (i), (ii), or (iii). Labeling

a paragraph an agency statement does not make it one.

PetitionersÓ general reference to Exhibit B, a 26 - page document 1/

attached to the Petition, does not provide a proper founda tion

for the alleged Board statements. Additionally, PetitionersÓ

Proposed Final Order fails to clarify any further details

demonstrating the Board making the alleged statements (i), (ii),

and (iii). Hence, Petitioners have not met their burden to show

a lleged agency statements (i), (ii), and (iii) were created by

the Board. However, even if alleged statements (i), (ii), and

( iii) were proper agency statements, none would constitute

unadopted rules.

73. Section 120.52(16) defines ÐruleÑ and provides in

pertinent part:

ÐRuleÑ means each agency statement of general

applicability that implements, interprets, or

prescribes law or policy or describes the

procedure or practice requirements of an

agency and includes any form which imposes any

requirement or so licits any information not

specifically required by statute or by an

existing rule. The term also includes the

amendment or repeal of a rule. The term does

not include:

(a) Internal management memoranda which do

not affect either the private interests of any

person or any plan or procedure important to

the public and which have no application

outside the agency issuing the memorandum.

(b) Legal memoranda or opinions issued to an

agency by the Attorney General or agency legal

opinions prior to their use in connection with

an agency action.

( c) The preparation or modification of:

1. Agency budgets.

2. Statements, memoranda, or instructions to

state agencies issued by the Chief Financial

Officer or Comptroller as chief fiscal officer

of the state and relating or pertaining to

claims for payment submitted by state agencies

to the Chief Financial Officer or Comptroller.

3. Contractual provisions reached as a result

of collective bargaining.

4. Memoranda issued by the Executive Office

of the Gov ernor relating to information

resources management.

74. Section 120.52(20) defines unadopted rule and provides

in pertinent part:

ÐUnadopted ruleÑ means an agency statement

that meets the definition of the term Ðrule,Ñ

but that has not been adopted purs uant to the

requirements of section 120.54.

75. Section 120.54(1)(a) provides, in relevant part:

Rulemaking is not a matter of agency

discretion. Each agency statement defined as

a rule by section 120.52 shall be adopted by

the rulemaking procedure pr ovided by this

section as soon as feasible and practicable.

76. Petitioner s assert in its Proposed Final Order that

each of the Board ' s statements (i ) through (iv) are rules under

s ection 120.52(16) because the statements are of general

applicability tha t implement, interpret, or prescribe law or

policy or describe the procedure or practice requirements of an

agency.

77. As to the first two unadopted rule challenges, (i) and

(ii), both pose the same threshold question regarding the

CouncilÓs status for Ðpetitions for declaratory statementÑ and

Ðpetitions to adopt, amend, or repeal an agency rule.Ñ Hence,

both can be considered together as Petitioners maintain the

Council has a Ðde facto partyÑ status in each procedure and Ðneed

not intervene in the proc eeding before the BoardÑ when considering

rules and/or statutes related to the practice of electrology.

78. Under the APA, section 120.52(13) provides five

categories defining ÐpartyÑ status. In order to establish ÐpartyÑ

status, one has to have some ty pe of substantial interest being

affected by the decision proposed by the agency action. Contrary

to PetitionersÓ position, the two - tiered bifurcated system that

already exists defines the CouncilÓs status and mandates that the

Board allow the Council to participate in a limited manner.

Section 478.43(1) mandates collaboration between the Board Ðwith

the assistance of the Electrolysis Council.Ñ

79. Additionally, rule 64B8 - 50.003(2) further designates the

CouncilÓs limited status by specifying that the Co uncil provide

only a recommendation for petitions of declaratory statement and

petitions to adopt, amend or repeal an agency rule filed with the

Board relating to the practice of electrology. Hence,

Petitioners ' contention that the Council is a de facto p arty is

not persuasive because the CouncilÓs role is advisory and the

Council is required to participate. As such, it need not move to

intervene. Additionally, the Council is not a party because it

neither has substantial interests nor any rights and the BoardÓs

decision does not affect the Council as a regulatory body.

Therefore, Petitioners fail to demonstrate challenges (i) and (ii)

are unpromulgated rules and the CouncilÓs status has already been

adopted in rule 64B8 - 50.003(2) defining its right to p articipat e .

80. As to challenged statement (iii), the series of events

including the Board declining to accept additional documentary

evidence at the October 10, 2014, meeting after the SocietyÓs

April 29, 2014, Petition for Declaratory Statement had al ready

been ruled on at the August 1, 2014, Board meeting, but before

the final draft order was presented at the October 10, 2014,

Board meeting is a singular factual situation. The additional

submitted documentation being denied consideration under such

c ircumstances was a one - time event and the facts in this matter

are too specific to support a finding of general applicability.

See State, DepÓt of Com., Div. of Labor v. Matthews Corp. , 358

So. 2d 256, 257 (Fla. 1 st DCA 1978)(wage rate guidelines

applicabl e only to the construction of a particular public

building was not a statement of general applicability) ; DepÓt of

High . Saf . & Motor Veh. v. Schluter , 705 So. 2d 81, 82 (Fla. 1 st

DCA 1997) (agency statements that applied only under Ðcertain

circumstancesÑ and did not have the Ðconsistent effect of lawÑ

were not statements of general applicability). Accordingly,

statement (iii) is narrowly focused, not of general

applicability, and does not constitute an unadopted rule.

81. As to the final alleged unadop ted rule, (iv), the

record demonstrates that the Board follows the seven day deadline

for setting the Ðagenda, along with any meeting materialsÑ and

allows the Chair to determine any changes as mandated by section

120.525(2), which provides in pertinent pa rt:

An agenda shall be prepared by the agency in

time to ensure that a copy of the agenda may

be received at least 7 days before the event

by any person in the state who requests a

copy and who pays the reasonable cost of the

copy. The agenda, along with any meeting

materials available in electronic form

excluding confidential and exempt

information, shall be published on the

agencyÓs website. The agenda shall contain

the items to be considered in order of

presentation. After the agenda has been made

ava ilable, a change shall be made only for

good cause, as determined by the person

designated to preside, and stated in the

record. Notification of such change shall be

at the earliest practicable time.

82. The record also shows that the Board adopted a po licy

that it will not automatically consider any materials submitted

for consideration within 48 hours of a full Board meeting unless

the Board Chair allows distribution to the members. The internal

operating procedure in this matter is not a policy of ge neral

applicability because the late - filed material cutoff of 48 hours

prior to the Board meeting does not apply to all material

submissions but only to those who submit late, which means such a

procedure would only apply under certain circumstances . See Ag .

for Health Care Admin. v. Custom Mobility, Inc. , 995 So. 2d 984,

986 (Fla. 1st DCA 2008)(The court found the formula for the

cluster sampling, which the agency used in some cases to

calculate Medicaid overpayments was not a statement of general

applica bility because it did not apply to all Medicaid providers

but rather only to some of the providers being audited, which is

too specific to support a finding of general applicability).

Hence, the 48 - hour submission procedure is not an unadopted rule.

83. A ccordingly, Petitioners did not meet their burden of

proving that the four statements, (i), (ii), (iii), and (iv),

constitute unadopted rules in this proceeding.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED :

1. The section of Florida Admin istrative Code Rule 64B8 -

50.003 (2) which states Ðpetitions for declaratory statementÑ

constitutes an invalid exercise of delegated legislative

authority in violation of section 120.52(8).

2. The section of Florida Administrative Code Rule 64B8 -

50.003(2) which states Ðpetitions to adopt, amend or repeal

rulesÑ is a valid exercise of delegated legislative authority as

defined by section 120.52(8), and the challenge is DI S MISSED.

3. Florida Administrative Code Rule 64B8 - 56.002(2)(a) is a

valid exercise of delegated legislative authority as defined by

section 120.52(8), and the challenge is DI S MISSED.

4. PetitionersÓ Petition seeking an administrative

determination of the four agency statements, (i), (ii), (iii),

and (iv) , is hereby DISMISSED.

DONE AND ORDERED this 1st day of May , 2015 , in Tallahassee,

Leon County, Florida.

S

JUNE C. MCKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Talla hassee, 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 1st day of May , 2015 .

ENDNOTE

1/ Exhibit B consists of the October 10, 2014, Board meeting

m inutes and transcript. The Board allowed the CouncilÓs attorney

to make comments even though Petitioner objected. However, the

undersigned is not persuaded that Petitioners demonstrated that

the BoardÓs deliberations and/or votes formulate alleged agency

statements (i), (ii), and (iii).

COPIES FURNISHED:

Jon M. Pellett, Esquire

Debra M. Metzler, Esquire

Barr, Murman & Tonelli, P.A.

201 E ast Kennedy B oulevard , Suite 1700

Tampa, Florida 33602

(eServed)

Edward A. Tellechea, Esquire

Robert Milne, Esquire

Megan Zbikowski

Marlene Katherine Stern, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eServed)

John H. Armstrong, M.D., F.A.C.S.

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

(eServed)

Ken Plante, Coordinator

Joint Administrat ive Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Reddick, Chief

Alexandra Nam

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Andre Ourso, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin C03

Tallahassee, Florida 32399

(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 Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

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

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

of the District Court of Appeal in the appellate district where

the agency mainta ins its headquarters or where a party resides or

as otherwise provided by law.