20-000441RP Ricky Rescue Training Academy, Inc. vs. Department Of Financial Services, Division Of State Fire Marshal Status: Closed DOAH Final Order on Friday, October 23, 2020.

Summary: Petitioner did not establish that requiring specified classes to be taught in a traditional format is an invalid exercise of delegated legislative authority.

invalid exercise of legislatively granted authority in violation of section

120.52(8)(b), (c), (e), and (f), Florida Statutes (2020).

P RELI MINARY S TATEMENT

On January 27, 2020, Petitioner, Ricky Rescue Training Academy, Inc.

(Ricky Rescue), filed a Petition to Challenge Specific Changes to Proposed

Rule 69A - 39.005(1)(b)2.d. with the Division of A dministrative Hearings

(DOAH). Petitioner filed an Amended Petition to Challenge Specific Changes

to Proposed Rule 69A - 39.005(1)(b)2.d. (Amended Petition) the next day, and

on January 29, 2020, the case was assigned to the undersigned. A telephonic scheduling conference was conducted on February 3, 202 0, and as a result, a

Notice of Hearing was issued scheduling the case for February 24, 2020. On

February 13, 2020, Petitioner filed an Unopposed Motion for Continuance,

based upon the need to receive and review responses to public records

requests sent to the Department of Financial Services (the Department or

Respondent) several weeks before the Amended Petition was filed, in order to

prepare for hearing. The continuance was granted and the hearing was

rescheduled for March 27, 2020.

On March 1, 2020, t he Governor of the State of Florida issued Executive

Order 20 - 51, directing the State Health Officer and Surgeon General to

declare a public health emergency pursuant to section 381.00315, Florida Statutes, in connection with the pandemic associated with C OVID - 19.

COV I D - 19 is a highly contagious respiratory illness that, at this time, has no

vaccination. People were encouraged to stay home and limit interpersonal interaction, and practice “social distancing” (stay six feet apart) with people outside one’s household. As a result, on March 16, 2020, the parties filed a

Joint Motion for Continuance, citing the uncertainty caused by the pandemic,

and asking that the case be continued for 45 days. Ultimately, the case was rescheduled for hearing to be conducted by Zoom technology on July 27

and 28, 2020, and proceeded as scheduled. The parties filed a Joint

Prehearing Statement that included stipulated facts that have been

incorporated into the Findings of Fact below.

At hearing, Jeromy VanderMuelen, Chadwick K etron, Susan Schell, Ryan

Russell, Robert Morgan, Matthew Trent, and Joseph Pasquariello testified on

behalf of Petitioner, and Petitioner’s Exhibits 1 through 54 were admitted

into evidence. It is noted that during Petitioner’s case in chief, Respondent

o nly objected to Petitioner’s Exhibits 13, 19, 20, and 21 in the event that

Respondent’s Exhibit F was not admitted, so ruling with respect to these

exhibits was deferred. Respondent’s Exhibit F was admitted over objection.

Inasmuch as Respondent’s objectio n to these four exhibits was conditional,

they have been admitted.

Mark Harper, Anthony Apfelbeck, Michael Tucker, Cheryl Edwards, and

David Abernathy testified on behalf of the Department, and Respondent’s

Exhibits C through H and J through W were admit ted into evidence.

The Transcript of the proceedings was fi led with the Division on

August 14, 2020. That same day, Petitioner filed a Motion for Extension of

Time to File Petitioner’s Proposed Order, which stated good cause and was

unopposed. An Order w as entered granting the m otion and extending the

time for the filing of p roposed f inal o rders until September 25, 2020. Both

parties’ post - hearing submissions were timely filed, and have been carefully

considered in the preparation of this Final Order.

A ll references to Florida Statutes are to the current codification, unless

otherwise indicated.

F INDINGS OF F ACT

The Parties

1. Respondent, Department of Financial Services, Division of State Fire

Marshal, is headed by the Chief Financial Officer of the s tate, who serves as

the Chief Fire Marshal pursuant to section 603.104(1), Florida Statutes. The

State Fire Marshal is charged with the responsibility to minimize the loss of

life and property in Florida due to fire, and to adopt rules, which must “be in s ubstantial conformity with generally accepted standards of firesafety; must

take into consideration the direct supervision of children in nonresidential child care facilities; and must balance and temper the need of the State Fire Marshal to protect all Fl oridians from fire hazards with the social and

economic inconveniences that may be caused or created by the rules.”

§ 633.104(1), Fla. Stat.

2. Petitioner is a Florida corporation authorized by the Department to

offer fire certification training courses i n both online and blended learning

formats. A blended learning course is one that has both online and in - person

components. The blended learning courses Petitioner currently offers have

37 hours of online learning and eight hours of in - person instruction t o

address those portions of the course that may need “hands on” instruction.

3. Section 633.216 , Florida Statutes, requires Respondent to certify fire

safety inspectors, and to provide by rule for the development of a fire safety

inspector training program of at least 200 hours. The program developed by

Department rule must be administered by education or training providers

approved by the Department for the purpose of providing basic certification

traini ng for fire safety inspectors. § 633.216(2), (8), Fla . Stat.

Current Certification Requirements

4 . Section 633.406 identifies several certifications in the fire safety arena

that may be awarded by the Division of State Fire Marshal : firefighter, for

those meeting the requirements in section 633.408(4) ; fir e safety inspector,

for those meeting the requirements in section 633.216(2); special certification,

for those meeting the requirements in section 633.408(6); forestry

certification, for those meeting the requirements of section 590.02(1)(e); fire

service ins tructor , for those who demonstrate general or specialized

knowledge, skills, and abilities in firefighting and meet the qualifications

established by rule; certificate of competency, for those meeting certain

requirements with special qualifications for particular aspects of fire fighting

service; and volunteer fire fighter certifications.

5 . In order to become a fire safety officer, an applicant must take the

courses outlined in r ule 69A - 39.005, and pass an examination with a score of

70% or higher. The five courses as listed in the current version of rule 69A -

39.005 are Fire Inspection Practices; Private Protection Systems; Blue Print

Reading and Plans Examinations (also known as Construction Documents and Plans Review); Codes and Standards; and Charact eristics of Building

Construction.

The Rulemaking Process

6 . On November 5, 2015, the Department held the first of a series of rule

workshops and “listening sessions” as it began the process for making

changes in the certification program for fire safety inspectors. 1 These

workshops and listening sessions were held on November 5, 2015; July 10,

2016; November 10, 2016; January 17, 2017; August 8, 2018; November 8,

2018; and October 29, 2019. As described by Mark Harper, who is now the

assistant superintend ent of the Bureau of Fire Standards and Training at the

Florida State Fire College, the Bureau conducted the first few listening

sessions to hear the industry’s view on what changes were needed, follow ed

by drafting proposed rule language and conduct of ru le workshops.

1 Curiously, neither party introduced the notices for any of these workshops or listening

sessions, so how notice was provided to interested persons wanting to give input on possible

changes cannot be determined.

7 . The first workshop/listening session was conducted on November 5,

2015, in Palm Beach Gardens, and was moderated by Mark Harper. At this

workshop, a variety of comments were received regarding the quality of the

existing program and the qu ality of the fire safe ty inspectors being certified.

Those comments included the need for more field training and more hours of

instruction; suggested use of a “task book” in training; the view that classes

should be taught by more experienced inspectors, not just people who have

passed the classes; and the need for more practical training. The view was

expressed by at least one attendee that the quality and method of delivery

needed to be examined, and that Codes and Standards and Construction

Documents a nd Plans Review should not be taught online.

8 . In December 2015, Tony Apfelbeck, the Fire Marshal for Altamonte

Springs, provided to Mr. Harper proposed draft revisions to chapter 69A - 39,

which included increasing the number of training hours to 315 hours (as

opposed to the 200 hours required by section 633.216), and requiring use of a task book, as well as other changes. The draft did not include any language

regarding course methodology in terms of classroom, online, or blended

format classes.

9 . At the next workshop, held July 10, 2016, a draft proposal was provided

to the audience, but it is not clear whether th e draft provided is the one

Mr. Apfelbeck suggested or something else. Concerns were expressed

regarding the implementation of the use of a task book, and at least one

speaker speaking against the suggested changes opined that the changes

suggested in the draft would cost more money. Another commented that

increasing the hours may not help the issue. Instead, there should be a

greater emphasis on the quality of the educational delivery, and that

instruction needed to be tied more closely to field work. Late in the workshop,

comments were made regarding online and classroom delivery, and it was

suggested that some classes should not be held online.

10 . While the drafts that were provided at the various workshops are not

in the record, at some point, language was added that would require two of

the five courses for fire safety certification, i.e., Codes and Standards and

Construction Documents and Pla ns Review, be taught in a traditional

classroom setting only.

1 1 . The subject of online classes was discussed more thoroughly at the

next workshop held November 10, 2016. During this workshop, there were

comments both in favor of and against the use of onl ine classes. While the

speakers cannot always be identified from the recordings of the workshops,

some attendees stated that some of the online providers were doing a really

good job, and the concern was raised that if online classes were eliminated, it

mi ght be an exchange of convenience for quality. 2 At least one person

expressed the opinion that the speaker was not a fan of online classes, and

Mr. Harper suggested that blended learning might be a way to meet some of

the concerns expressed, and that the m ethod of delivery would be up to the

institution. Others who participated in the workshop spoke highly of blended

classes.

1 2 . The remaining workshops also had discussions regarding the online

class change, as well as other changes in the proposed rule. Op inions were

voiced on both sides of the issue. The primary source of comments seeking a

traditional classroom setting only were fire marshals at various

municipalities around the state concerned about the need for “hands - on”

training and the current lack o f preparation encountered with new staff.

1 3 . On July 10, 2019, the Department filed a Notice of Proposed Rules for

rules 69A - 39.003, 39.005, and 39.009. The proposed rule amendments

included the following amendment to rule 69A - 39.005(1)(b)2.d . :

d. The cou rses “Codes and Standards” and

“Construction Documents and Plans Review”

2 The identity of the speakers is not important, and th e comments are not relayed for the

truth of the statements made. They are listed simply to show that the Department heard

several viewpoints during these listening sessions.

required under this paragraph (1)(b) will only be

approved by the Bureau when taught in a traditional classroom delivery method.

1 4 . No definition for “traditional classroom deliver y method” is provided.

1 5 . On January 15, 2020, Respondent conducted a public hearing on the

proposed rule. As was the case with the workshops, people voiced both

support and opposition to the proposal to require a traditional classroom

setting for the Cod es and Standards and Construction Documents and Plans

Review courses. Counsel for Petitioner appeared and spoke against the

proposed language to eliminate online and blended learning for the two

classes, and asked whether any type of data existed to suppor t the change in

the rule, or whether any type of study had been conducted to gauge the need

for the change. Respondent’s representative stated that the proposed

language was based upon “extensive testimony” from employers requesting

the change. Counsel als o asked that Respondent consider defining what is

meant by traditional classroom delivery. No such definition has been added

to the rule.

1 6 . The Notice of Proposed Rule does not include a Statement of

Estimated Regulatory Costs. Instead, it states:

The A gency has determined that this will not have

an adverse impact on small business or likely

increase directly or indirectly regulatory costs in

excess of $200,000 in the aggregate within one year

after the implementation of the rule. A SERC has not been pre pared by the Agency.

The Agency has determined that the proposed rule

is not expected to require legislative ratification based on the statement of regulatory costs or if no

SERC is required, the information expressly relied

upon and described herein: The Department’s

economic analysis of the potential impact of the

proposed rule amendments determined that there

will be no adverse economic impact or increased

regulatory costs that would require legislative

ratification.

Any person who wishes to provide i nformation

regarding a statement of estimated regulatory

costs, or provide a proposal for a lower cost

regulatory alternative must do so within 21 days of

this Notice.

1 7 . Petitioner addressed the increased costs under the proposed rule

during at least o ne of the workshops. There is no evidence, however, that

Petitioner submitted, in writing, a proposal for a lower cost regulatory

alternative within 21 days of the Notice of Proposed Rule .

1 8 . On January 27, 2020, Petitioner filed its Petition to Challen ge

Specific Changes to Proposed Rule 69A - 39.005(1)(b)2.d. The Petition is timely

filed.

Current Online Providers and Course Review Process

1 9 . As of April 10, 2020, there are approximately 20 organizations

approved by the Bureau of Fire Standards and Tr aining that offer distance

learning delivery for courses in programs leading to a certification pursuant

to rule 69A - 37.605. Of those providers, two are approved to teach Codes and

Standards and three are approved to teach Construction Documents and

Plans R eview.

20 . In addition, as of June 1, 2020, there are 13 state colleges and/or

universities in Florida also approved to provide distance learning. Of those,

ten are approved to offer Codes and Standards, and ten are approved to offer

Construction Documen ts and Plans Review.

21 . Petitioner has been approved to teach these two courses in a blended

format since at least 2015. It also has articulation agreements with some educational institutions, including Waldorf University in Iowa, and Columbia

Southern U niversity in Alabama.

2 2 . The Department previously sought to take action against Ricky

Rescue related to the type of courses taught, although the statutory basis for

taking action against Ricky Rescue is not part of the evidence presented in

this proceed ing. The Consent Order entered to resolve the prior proceeding

expressly provides, “Respondents agree that they will not offer any on - line

courses until such time as they obtain approval from the Bureau, which will

not be unreasonably withheld.”

2 3 . In o rder to be approved to teach any of the courses for certification in

an online or blended format, a provider is required to go through an extensive

review process. Initially, Respondent used a Quality Matters Higher

Education Rubric to evaluate the courses a provider sought to offer. Course

approvals initially took anywhere from four months to a year and a half to

meet the standards and be approved. Respondent no longer uses the Quality

Matters rubric, because it has transitioned to the accreditation proces s used

by the Southern Association of Colleges and Schools. With this change, the

length of time for class approvals has shortened considerably.

2 4 . Susan Schell used to be the Department’s Training Programs Manager

and was in charge of the review and app roval of classes for online learning.

She has since moved on to another position within the Department.

Ms. Schell would take the submitted course herself, view the different videos

and discussion boards, and work through some of the projects, as well as

r eview some of the case discussions and questions. Ricky Rescue’s courses

that she reviewed met all of the state requirements to be approved.

2 5 . According to Ms. Schell, classes taught in the traditional format did

not go through the same review process.

2 6 . Ricky Rescue’s accreditation verification from AdvancED Southern

Association of Colleges and Schools Council on Accreditation and School

Improvement indicated that Ricky Rescue’s accreditation was confirmed on

March 31, 2017, for a five - year term expi ring June 30, 2022. There is no

credible dispute regarding whether Ricky Rescue complies with the

requirements for offering its courses in a blended format. The report of the

external review team prepared by AdvancED Education, Inc., noted that the

school’ s website is exemplary and stated in its conclusions:

Once a month, students attend a day on site

blended learning instruction where students can

collaborate and complete and present projects.

Given that the owners are brother fire fighters,

there is a gen uine feeling of camaraderie and

collegiality.

It is apparent to the Team that the Ricky Rescue

Training Academy is an ideal institutional

opportunity to obtain classes for firefighter training

and certification classes. … The school has

embraced the conti nuous improvement model to

insure that they continue to deliver high quality

online educational programs with rigor, relevance, and fidelity.

Two Different Views

2 7 . Petitioner and Respondent approached the proposed rule amendment,

both at the worksho ps and public hearing conducted by the Department and

at the hearing in this proceeding, from different perspectives. Ricky Rescue

focused on the needs and opinions of students seeking to take the courses. Its

witnesses testified that the blended courses h ad significant substantive

content; that the in - person component gave the necessary opportunity for

completion of group projects and hands - on instruction or field trips; and that

the ability to complete the course at any time during a 30 - day period was

ess ential in terms of both costs and scheduling for the student, and

completing the classes while managing job and family responsibilities.

2 8 . For example, Ryan Russell has worked for over ten years in the fire

service and is a battalion chief for the Haine s City Fire Department. He has a variety of certifications and oversaw the training division for his department.

Mr. Ryan has taken five courses from Ricky Rescue, and speaks highly of them. Mr. Ryan agrees that there are some advantages to traditional

cla ssroom settings, because they provide more opportunities for engagement,

but that ultimately, a class is only as good as the instructor.

2 9 . Similarly, Robert Morgan is also a battalion chief at another fire

department, and took Documents and Plan s Revie w from Ricky Rescue.

Mr. Morgan believed that the online blended course is just as good as a

traditional classroom setting, and believes that in the blended setting, a

student has to work harder than just sitting at the back of the classroom.

Both men spok e of the convenience and accessibility that online learning

provides that a traditional classroom does not.

30 . Matthew Trent also testified in favor of the availability of online and

blended courses. Mr. Trent has a master’s degree in public administrati on

and is a Ph.D. student in public policy administration . He is also a certified

state firefighter II ; pump operator ; Fire Officer I, II, III, and IV; fire inspector

I and II ; fire investigator I ; and fire life safety educator I. About half of

Mr. Trent’s certifications have been based on classes taken online, and all of

his classes for his masters’ and doctoral degrees have been online. Mr. Trent

felt both courses at issue could be taught in an online format, and stated that

both as a student and as an in structor, it is up to the student to choose the

delivery method by which they want to learn . If not for online learning, he

would not have been able to accomplish nearly as much in his professional

life, because distance learning gives the student the abil ity to work around

other responsibilities.

31 . The Department, on the other hand, was influenced more heavily by

(and sought information from) the fire safety officials across the state who

employ fire safety inspectors. Many of those officials spoke at t he public

workshops and some testified at hearing. The major concern voiced by these

officials was that new fire safety inspectors certified by the state were not

re ally prepared to do their job. Although most acknowledged that some on the

job training wou ld always be necessary to deal with local codes and

ordinances that are not part of the state curriculum, they felt that new

inspectors did not have a good grasp of the concepts necessary to be effective,

especially with respect to the skills taught in the classes at issue in this case.

3 2 . For example, Anthony Apfelbeck is the Director of the Building and

Fire Safety Department for the City of Altamonte Springs. He has worked in

that d epartment for approximately 20 years and served as Fire Marshal for a

s ignificant portion of his tenure there, and serv ed in other cities as well.

Mr. Apfelbeck has an impressive array of certifications and currently

supervises approximately eight fire safety inspectors. He attended almost all

of the workshops and was an acti ve participant.

3 3 . Mr. Apfelbeck testified that he concurred with the State Fire

Marshal’s Association that both classes should be offered only in a traditional

classroom environment. He stated that there is a limited period of time to get

someone traine d and certified as a fire safety inspector, and he has seen some

of the deficiencies in the current training. In his view, requiring these two

classes to be given in a traditional classroom environment allows the

instructor to keep the student engaged, and to get into critical thinking with

probing questions and real - life examples. Instructors can have interactions

with students that address issues the students may be having in the

students’ jurisdictions, and read the body language of the students to gauge

involvement. He also spoke of the ability to develop relationships with other

individuals in the class and develop a peer group within that body.

Mr. Apfelback has used the virtual environment extensively during the

COVID - 19 pandemic, and does not feel th at it has the spontaneity and free -

flow of information that a traditional classroom affords.

34 . Mr. Apfelbeck has not taken any of Ricky Rescue’s classes, and does

not know what it has done to make sure its students get 200 hours of

education. Likewise , he is not aware of the review Ricky Rescue went through

to get its courses approved. He stated, correctly, that the rule is not written

specifically about Ricky Rescue’s programs. It is written for all educational

programs that are provided pursuant to t his rule.

3 5 . Michael Tucker is the assistant superintendent for the State Fire

Marshal’s Office. His experience includes serving as battalion chief for the

Reedy Creek Improvement District (i.e., Disney) for 13 years, and serving as

the Chief of the Fire Department for the Villages for 13 years. He has taught

fire safety classes both in the classroom setting and online. While at Reedy

Creek, he was the training officer responsible for providing training to fire

inspectors, firefighters, paramedics , and EM Ts.

3 6 . Mr. Tucker believes that the two classes addressed in the proposed

rule are very intricate classes with a lot of detail. He believes that the

traditional environment gives more opportunity for students to get hands - on

instruction and have more in teraction with the instructor. He acknowledged

that there is a possibility that fees could increase under the proposed rule,

but thinks that the increased cost is outweighed by the value that employers

would get when they hire people trained in a classroom setting.

3 7 . Cheryl Edwards is the Fire Marshal for the City of Lakeland, and her

views regarding traditional versus online learning are similar to those

already expressed. She believes that the traditional classroom environment

promotes collaborative le arning and enhances critical thinking skills, through

live discussions, and the need to think on your feet. She also felt that in

person, an instructor is better able to gauge students’ learning styles and

provide activities and modalities for all to learn , regardless of learning style.

Ms. Edwards believes that the traditional classroom setting allows for more

“teachable moments,” and guided practice before a student has to put that

knowledge into use.

3 8 . Finally, David Abernathy is the Fire Chief of the City of Satellite

Beach and has worked with the City for 35 years. Mr. Abernathy has an

impressive list of certifications and has taught all five of the courses

necessary for fire safety inspector certification, but has never taught them in

an online or b lended learning format. Mr. Abernathy believes that for these

two courses there is a benefit to the traditional classroom setting. He believes

that both classes need a hands - on approach to be the most effective.

39 . Mr. Abernathy also believes that requir ing these two courses to be

taught in a traditional classroom setting will cost more, but as an employer is

more willing to pay for it than for online classes.

40 . Mark Harper testified that during the workshops, the Department

wanted to hear from everyo ne, because all would be impacted by the changes.

However, he believes that there is a heavier weight of responsibility on

employers as opposed to students, because they are the ones trying to fill

positions, and they are the ones having to deal with addit ional costs

occasioned by failures in training. As a practical matter, employers are more

cognizant of the potential liability jurisdictions face when a fire safety

inspector, who looks at everything from mom and pop businesses to

industrial sites with lar ge containers of hazardous materials, is not

adequately trained.

41 . The decision to go forward with the proposed rule amendment

requiring a traditional classroom delivery method with respect to Codes and

Standards and Construction Documents and Plans Rev iew is based on the

feedback received through the workshop process. It is not based on data.

4 2 . The Department does not track how students who took certification

classes online or in a blended format score on the certification examination as

opposed to s tudents who took the same classes in a traditional setting. It

would be difficult to collect that type of data, because there is no requirement

that a student take all five courses the same way.

4 3 . In preparation for the hearing in this case, the Departm ent conducted

a survey of employers regarding their views on traditional versus distance

learning. The Florida Fire Marshals and Inspectors Association distributed

the survey to its members, and of the 358 addressees, 114 responded. There

was no evidence t o indicate that the Department attempted to survey people

taking the classes.

4 4 . The questions asked in the survey were quite limited, and frankly,

provide no guidance because they provide only two alternatives, and do not

address blended learning format s at all. There are three questions, and they

are as follows, with the responses in parentheses:

1. Is there is current need to increase the

proficiency of newly certified Firesafety Inspectors

in Florida?

Yes (59.65%)

No (16.67%)

Neutral opinion (12. 68%)

2. When a prospective Firesafety Inspector attends a Codes and Standards class, which class setting would produce a more proficient inspector?

Traditional classroom delivery method (71.17%)

Online (dist ance learning ) delivery

method (9.91%)

Neut ral opinion (18.92%)

3. When a prospective Firesafety Inspector attends

a Construction Documents and Plans Review Class,

which class setting would produce a more proficient

instructor?

Traditional classroom (76.32%)

Online (7.02%)

Neutral opinion (16.6 7%)

4 5 . Questions two and three assume that one format must be better than

the other, rather than allowing for the possibility of equivalency. Had there

been some recognition of a blended learning format, the answers might be

different.

46 . The survey w as informative in terms of the comments that were

provided by the respondents. Similar to the views expressed at the

workshops, there were strong opinions both in favor of limiting the classes to

the traditional setting, and strong opinions advocating for the option of online

learning.

4 7 . Petitioner presented information related to the increased costs that

will be incurred should the rule go in effect. Those costs include the need for

space rental for five - day periods in order to teach in multiple locatio ns; the

costs related to conversion of the material to a classroom setting versus

online; and the need to pay instructors for more days each time the course is

taught. It does not appear from the evidence presented that Ricky Rescue

would experience increa sed costs of $200,000 in one year. However, Ricky

Rescue is just one provider, and section 120.54 speaks in terms of an increase

in costs in the aggregate, meaning as a whole. It is not known whether the

other approved providers who teach these two courses will continue to do so

should the rule be amended to require a classroom setting. It is also unknown

what types of costs would be borne by state colleges and universities in order

to recast the courses for traditional classroom settings.

4 8 . Finally, t he litigants to this proceeding were well aware that this rule

was being developed and was noticed as a proposed rule before the world

began to deal with the COVID - 19 pandemic. It is open to speculation whether

some of the impetus to require a traditional classroom setting would have

changed in light of the changes society has had to make over the last six

months. Department employees were questioned regarding the Fire College’s

response to the pandemic, and both Mark Harper and Michael Tucker

testified abo ut the precautions being taken on the campus to insure safety,

such as taking temperatures, having students complete a questionnaire

regarding possible exposure, limiting the number of students per class , and

spacing people six feet apart to maintain effec tive social distancing.

4 9 . Mr. Tucker testified that they would be ready to postpone some classes

until they could be taught safely in person. When asked whether Respondent

would consider postponing the effective date of the proposed rule, he

indicated “ that would be something we would have to take into consideration,

and again, the feedback from our constituents, but if it became necessary,

then we would consider it.”

C ONCLUSIONS OF L AW

50 . The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this proceeding pursuant to sections 120.67,

120.569, and 120.57(2).

51 . The parties do not dispute that Petitioner has standing to participate

in this case. Any person who is substantially affected by a proposed rule may

seek an administrative determination regarding the validity of the rule and

whether it is an invalid exercise of delegated legislative authority.

§ 120.56(1)(a), Fla. Stat. Ricky Rescue is substantially affected by the

proposed rule because it will ch ange the method by which it can offer fire

safety training courses in this state.

5 2 . A person challenging a proposed rule must state with particularity the

reasons that it contends the proposed rule is invalid. § 120.56(1)(e), Fla. Stat.

Petitioner has t he burden to prove by a preponderance of the evidence that it

would be substantially affected by the proposed rule, and the Department has the burden of proving by a preponderance of the evidence that the proposed

rule is not an invalid exercise of del egat ed legislative authority.

§ 120.56(2)(a), Fla. Stat. A preponderance of the evidence is defined as the

“greater weight of the evidence , … or evidence that more likely than not

tends to prove a certain proposition.” Gross v. Lyons , 763 So. 2d 276, 280 n.1 ( Fla. 2000).

5 3 . Petitioner has met its burden of demonstrating that it would be

substantially affected by the proposed rule. To continue offering Construction Documents and Plans Review and Codes and Standards classes, Ricky

Rescue will have to change its business model in some respects, and will have

to expend additional money for space and staffing requirements, as well as

for modifications of the course to adapt it to a traditional format.

5 4 . When a substantially affected person seeks a determination regarding

the validity of a proposed rule, the proposed rule is not presumed to be valid or invalid. § 120.56(2)(c), Fla. Stat.

5 5 . Section 120.52(8) defines “ invalid exercise of del egated legislative

authority.” It provides:

(8) “Invalid exercise of dele gated legislative

authority” means action that goes beyond the

powers, functions, and duties delegated by the

Legislature. A proposed or existing rule is an

invalid exercise of delegated legislative authority if

any one of the following applies:

(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

rulemaking authority, citation to which is required

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

(c) The rule enlarge s, 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 establish adequate

standards for agency decisions, or vests unbridled

discretion in the agency;

(e ) The ru le 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 thought 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 rulemaking authority is necessary but

not sufficient to allow an agency to adopt a rule; a

specif ic law to be implemented is also required. An

agency may adopt only rules that implement or

interpret the specific powers and duties gr anted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to th e 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 authority to implement

statutory provisions setting forth general

legislative intent or policy. Sta tutory 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.

5 6 . In its Petition, Petitioner contends that the proposed rule’s

requirement that Construction Documents and Plans Review and Codes and

Standards classes be taught in a traditional format exceeds the Department’s

grant of rulemaking authority in violation of se ction 120.52(8)(b); that the

move to traditional classroom presentation for these classes modifies the

specific provisions of the law implemented, in violation of section 120.52(8)(c);

that the proposed rule is arbitrary and capricious, in violation of sec tion

120.52(8)(e); and that the amendment imposes regulatory costs on the

regulated entities affected by the rule that could be reduced by the adoption

of less costly alternatives, in violation of section 120.52(8)(f).

Section 120.52(8)(b): Whether the Pr oposed Rule Exceeds Statutory

Authority

5 7 . Petitioner contends that the Department has exceeded its rulemaking

authority because the Department is seeking to regulate the methods through which a provider may deliver an approved course or training

program without rulemaking authority to do so.

58 . One of the more recent cases interpreting the standards related to

rulemaking authority is United Faculty of Florida v. Florida State Board of

Education , 157 So. 3 d 514 , 516 - 517 (Fla. 1st DCA 2015). In that case , the

State Board of Education adopted a rule that established standards and

criteria for continuing contracts with full - time faculty members employed by

Florid a College System institutions. The First District stated:

A rule is invalid under section 120.52 (8)(b) if the

agency “exceed[s] its g rant of rulemaking

authority.” A grant of rulemaking authority is the

“statutory language that explicitly authorizes or

requires an agency to adopt [a rul e].” § 120.52(17),

Fla. Stat. The scope of an agency’s rulemaking

authority is constrained by section 120.536(1) and

the so - called “flush - left paragraph” in section

120.52(8), which provide that an agency may only

adopt rules to “implement or interpret the specific

powers and duties granted by the [agency’s] enabling st atute”; that an agency may not adopt

rules to “implement statutory provisions setting forth general legislative intent or policy” or simply

because the rule “is reasonably related to the

purpose of the enabling legislation and is not arbitrary or capriciou s or is within the agency’s

class of powers and duties”; and that “[s]tatutory

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 th e specific powers

and duties conferred by the enabling statute.”

Section 120.536(1) and the flush - left paragraph in

section 120.52(8) require a close examination of the statutes cited by the agency as authority for the rule at issue to determine whether t hose statutes

explicitly grant the agenc y authority to adopt the

rule. As this court famously stated in [ Southwest

Florida Water Management District v. ] Save the

Manatee Club, [ Inc. , 773 So. 2d 594 (Fla. 1st DCA

2000)], 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

authorizes the rule at issue or it does not.” 773 So. 2d at 599 (emphasis in original). Accord Bd. of Trs. of the Internal Improvement Trust Fund v. Day Cruise Ass’n, Inc. , 794 So. 2d 696, 700 (Fla. 1st

DCA 2001) (“[A]gencies have rulemaking authority

only where the legislature has enacted a specific

statute, and authorized the agency to implement it. . . .”); see also Fla. Elections Comm’n v. Blair , 52 So.

3d 9, 12 - 13 (Fla. 1st DCA 2010) (explaining that

the definition of “rulemaking authority” in section 120.52(17) does not further restrict agency rulemaking authority beyond what is contained in

the flush - left paragraph in section 120.52(8), as

construed by this court in Save the Manatee Club

and subsequent cases.

5 9 . The First District ultimately upheld the rule in United Faculty of

Florida , stating that “it is not necessary under Save the Manatee Club and i ts

progeny for the statutes to delineate every aspect of tenure that the Board is authorized to address by rule; instead, all that is necessary i s for the statutes

to specifically authorize the Board to adopt rules for college faculty contracts

and tenure, which the statutes clearly do.” Id. At 517 - 518 (footnote omitted).

60 . In this case, proposed rule 69A - 39.005 lists as its rulemaking

authority sections 633.104; 633.216; and 633.406. It lists sections 633.216 and 633.406 as the laws implemented. Section 633.104 provides in pertinent

part:

(1) The Chief Financial Officer is designated as

“State Fire Marshal.” The State Fire Marshal has authority to adopt r ules pursuant to ss. 12.536

and 120.54 to implement this chapter. Rules must

be in substantial confor mity with generally

accepted standards of firesafety; must take into consideration the direct supervision of children in

nonresidential child care facilities; and must

balance and temper the need of the State Fire

Marshal to protect all Floridians from fir e hazards with the social and economic inconveniences that may be caused or created by the rules. The

department shall adopt the Florida Fire Prevention

Code.

(2) Subject to the limitations of subsection (1), it is the intent of the Legislature that the S tate Fire

Marshal shall have the responsibility to minimize

the loss of life and property in this state due to fire.

The State Fire Marshal shall enforce all laws and provisions of this chapter, and any rules adopted

pursuant thereto, relating to:

* * *

(c)2. The training and licensing of persons engaged

in the business of servicing, repairing, recharging,

testing, marking, inspecting, installing,

maintaining, and tagging fire extinguishers,

preengineered systems, and individually designed

fire protection systems; …

61 . Section 633.216 provides in pertinent part:

(2) Except as provided in s. 633.312(2), every

firesafety inspection conducted pursuant to state or

local firesafety requirements shall be by a person certified as having met the inspection t raining

requirements set by the State Fire Marshal. Such

person shall m eet the requirements of

s. 633.412(1) - (4), and:

(a) Have satisfactorily completed the firesafety inspector certification examination as prescribed by

division rule; and

(b) 1. Have sa tisfactorily completed, as determined

by division rule, a firesafety inspector training program of at least 200 hours established by the

department and administered by education or

training providers approved by the department for the purpose of providing basic certification training

for firesafety inspectors; or

(b) 2. Have received training in another state which is determined by the division to be at least equivalent to that required by the department for

approved firesafety inspector education and

train ing programs in this state.

* * *

(9) The department shall provide by rule for the

certification of firesafety inspectors and fire code administrators.

6 2 . Section 633.406 simply lists the classes of certification, and requires a

fire safety inspector t o meet the requirements of section 633.216(2).

6 3 . Petitioner contends that the proposed rule exceeds the statutory

authority quoted above because nothing in the statutes it implements

specifies that the Department can dictate the methodology used to prov ide

fire safety training. However, the authority to establish a fire safety inspector

training program in section 633.216 is broad enough to encompass both

content and methodology. Section 633.216(2) provides the authority to

establish a training program a nd specifies a minimum for the number of

hours. It leaves the shape of the training program, including both content

and delivery, to the Department. Moreover, if one were to accept Petitioner’s

argument, the Department would be unable to specify course con tent without

specific reference to the subject areas in the law implemented. As with

United Faculty of Florida , it is not necessary for the Legislature to delineate

every aspect of the training program it directs the Department to develop. It

is enough tha t it requires the development of the program.

6 4 . Petitioner relies on Department of Financial Services v. Peter R. Brown

Construction, Inc., 108 So. 3d 723 (Fla. 1 st DCA 2013), to support its

argument that the Department has no authority to determine the

methodology used for the training program it is charged with establishing. In

Brown Construction , the Legislature granted to the Department the

authority to establish procedures for approval of expenditures. It did not

grant the authority to establish wha t expenditures could be approved by

means of those procedures. Spending authority and approval process are two

very different things. The same cannot be said here.

Section 120.52(8)(c): Whether the Proposed Rule Modifies the Statute

6 5 . Petitioners also contend that the proposed rule is invalid pursuant to

section 120.52(8)(c) because it enlarges, modifies, or contravenes the specific

provisions of the law implemented. As noted by the First District in Day Cruise Ass ociatio n , while section 120.52(8) (b) and (c) are “interrelated, two

different issues are involved.” 794 So. 2d at 701.

6 6 . Petitioner’s argument is to some degree a reiteration of the argument

that the Department has exceeded its authority. It adds that while the

Department is required to e stablish the program, the Legislature did not

grant to the Department the authority to dictate to providers how the program will be administered.

6 7 . Section 633.216(2) requires the training providers to be approved

before they can administer the trainin g program the Department establishes.

It is not unreasonable to require a provider to commit to using the

methodology specified by the Department before the provider is allowed to

administer the training program. Indeed, Ricky Rescue has been submitting cl asses for approval, both in terms of content and methodology, since at least

2015. The Consent Order to which they agreed specified that they would “not

offer any on - line courses until such time as they obtain approval from the

Bureau, which shall not be u nreasonably withheld.”

6 8 . Petitioner also contends that the specification of traditional classroom

delivery for the two courses in the proposed rule modifies the statute because sections 633.216 and 633.406 do not grant to the Department the authority to

regulate education and training providers. Section 633.216 does, however,

grant to the Department the authority to approve providers. Petitioner cites and attempts to distinguish Association of Florida Community Developers v.

Department of Environmental Protection , 943 So. 2d 989 (Fla. 1 st DCA 2006 ) ,

in which the court found that where the implementing statute provided the

Department of Environmental Protection a broad grant of authority to

reserve water in order to protect fish and wildlife or to protec t the public

health and safety, the broad grant of authority adequately covered the

examples in the proposed rule. Here, the Department is charged with the

broad grant of authority to minimize the loss of life and property in this state

due to fire. Requir ing that some aspects of the training for fire safety

inspectors charged with enforcing these very important fire safety

regulations to be taught in a traditional classroom setting is within this

broad grant. T he proposed rule’s specification of a teaching methodology is

not a modification of the statutory framework the proposed rule implements.

Section 120.52(8)(e): Whether the Proposed Rule is Arbitrary and Capricious

6 9 . Section 120.52(8)(e) also declares that a rule is an invalid exercise of

delegated legislative authority when it is arbitrary and ca pricious. The

statute recognizes the long - standing definitions of the terms, stating that a

rule is arbitrary if it “is not supported by logic or the necessary facts.” A rule

is capricious “if it is adopted without thought or reason or is irrational.” See

Dravo Basic Materials Co. v. Dep’t of Transp. , 602 So. 2d 632, 634 (Fla. 1st

DCA 1992).

70 . T he proposed rule is also not arbitrary and capricious. While one may

disagree with the ultimate position taken by the Department, it is a position

taken after listening sessions and workshops held around the state over a

four - to - five - year period. Several officials within the fire safety industry both

participated in the workshops and testified at hearing that they were

concerned about the education received in an online setting, and felt that Construction Document and Plans Review, as well as Codes and Standards,

were classes that were better presented in person as opposed to online. While section 120.52(8)(e) requi res that a rule be supported by necessary facts, it

does not require that it be supported by scientific data. The testimony of

individuals who are experienced in the field and supervising new fire safety

inspectors, and in several cases have experience tea ching the classes, can

provide the necessary factual framework for amendments to the rule.

71 . The classroom requirement is one that drew significant discussion and

firmly held beliefs on both sides of the issue. The Department may learn that

this change in the delivery method does not have the predicted effect of

helping to produce more prepared fire safety inspectors, and , if so, it has the

flexibility to respond to that information. As long as the rule is the product of

a thoughtful, open process where different viewpoints are considered, the

statutory authority for this rule is broad enough for the Department to

fashion a program it believes, in good faith, to best serve the public. Where

reasonable people can disagree, and did so here, the proposed ru le is not

arbitrary or capricious.

Section 120.52(8)(f); Whether the Proposed Rule Represents the Least Costly

Regulatory Alternative

72 . Petitioner also contends that the proposed rule is an invalid exercise of

delegated legislative authority because it imposes regulatory costs that could

be reduced by the adoption of less costly alternatives that substantially

accomplish the statutory objectives.

7 3 . This particular challenge is foreclosed by the failure to comply with

the requirements of section 120. 541, which provides in pertinent part:

(1)(a) Within 21 days after publication of the notice

required under s. 120.54(3)(a), a substantially

affected person may submit to an agency a good

faith written proposal for a lower cost regulatory alternative to a proposed rule which substantially accomplishes the objectives of the law being implemented. The proposal may include the

alternative of not adopting any rule if the proposal

explains how the lower costs and objectives of the law will be achieved by not ad opting any rule. …

* * *

g) A rule that is challenged pursuant to

s. 120.52(8)(f) may not be declared invalid unless:

1. The issue is raised in an administrative

proceeding within 1 year after the effective date of

the rule;

2. The challenge is to the agency’s rejection of a

lower cost regulatory alternative offered under

paragraph (a) or s. 120.54 (3)(b)2.b.; and

3. The substantial interests of the person

challenging the rule are materially affected by the

rejection.

7 4 . As noted in the Findings of Fact, no evidence was presented to

establish that Petitioner filed a good faith written proposal within 21 days of

the Notice of Proposed Rule of a lower cost regulatory alternative. The failure

to provide such a written good faith proposal is fatal to Petitioner’s claim.

7 5 . While it is found that the proposed rule is not a invalid exercise of

delegated legislative authority, the undersigned is not unsympathetic to the

current challenge presented for those individuals who may need to take the

classes at issue but cannot do so in person in the health environment created by COVID - 19. During the hearing, Mr. Tucker was asked whether it would

consider postponing implementati on of the rule, and Mr. Tucker indicated

that it was something that could be considered. It is suggested that the Department give serious consideration to doing so.

O RDER

Based on the foregoing Findin gs of Fact and Conclusions of Law, it is

O RDERED that proposed rule 69A - 39.005 is not an invalid exercise of

delegated legislative authority, and the Amended Petition to Invalidate

Proposed Rule 69A - 39.005 is dismissed.

D ONE A ND O RDERED this 2 3rd day of O ctober , 2020 , in Tallahassee, Leon

County, Florida.

L ISA S HEARER N ELSON

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 2 3rd day of October , 2020 .

C OPIES F URNISHED :

Christina Harris Schwinn, Esquire

Pavese Law Firm

1833 Hendry Street

Post Office Draw er 1507

Fort Myers, Florida 33901

(eServed)

Max Oliver McCann, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

(eServed)

Catherine Thrasher, Esquire

Department of Financial Services

Office of the General Couns el

200 East Gaines Street

Tallahassee, Florida 32399

(eServed)

Vanessa Fernandez, Esquire

Pavese Law Firm

1833 Hendry Street

Fort Myers, Florida 33901

(eServed)

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Ser vices

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

(eServed)

John MacIver, General Counsel

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

(eServed)

Ernest Reddick, Program Administrator

Anya Grosenbaugh

Fl orida Administrative Code & Register

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedure Committee

Room 680, Pepper Building

111 West Madison S treet

Tallahassee, Florida 32399 - 1400

(eS e rved)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

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 cop y of the notice, accompanied

by any filing fees prescribed by law, with the clerk of the d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.