86-002272RP
Florida Association Of Academic Nonpublic Schools, Jacksonville County Day School vs.
Department Of Health And Rehabilitative Services
Status: Closed
DOAH Final Order on Friday, October 3, 1986.
DOAH Final Order on Friday, October 3, 1986.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8FLORIDA ASSOCIATION OF ACADEMIC )
13NONPUBLIC SCHOOLS, JACKSONVILLE )
17COUNTRY DAY SCHOOL, and )
22THE CUSHMAN SCHOOL , )
26)
27Petitioners , )
29)
30vs. ) CASE NO. 86-2272RP
35)
36DEPARTMENT OF HEALTH AND )
41REHABILITATIVE SERVICES , )
44)
45Respondent. )
47__________________________________)
48FINAL ORDER
50Pursuant to Notice, this cause was heard by Linda M. Rigot , the assigned
63Rearing Officer of the Division of Administrative Bearings, on August 14 and 15,
761986, in Tallahassee, Florida.
80Petitioners Florida Association of Academic Nonpublic Schools, Jacksonville
88Country Day School, and The Cushman School were represented by Dexter Douglas,
100Esquire, and Sherry Spiers , Esquire, Tallahassee, Florida. Harold D. Smith,
110Esquire, Hollywood, Florida, also appeared on behalf of Petitioner Florida
120Association of Academic Nonpublic Schools. Respondent Department of Health and
130Rehabilitative Services was represented by B. Elaine New, Esquire, Tallahassee,
140Florida.
141Respondent Department of Health and Rehabilitative Services published an
150amendment to rule 10M-12.001, Florida Administrative Code, on June 6, 1986, in
162the Florida Administrative Weekly. Chapter 10M-12, Florida Administrative Code,
171provides the standards for licensing of child care facilities. The proposed
182amendment relates to the statutory exemption of schools from child care facility
194licensing laws. The Petitioners filed a Petition to Determine Invalidity of a
206Proposed Rule on June 17, 1986, and an Amended Petition to Determine Invalidity
219of Proposed Rule on June 18, 1986. Accordingly, the issue for determination
231herein is whether proposed rule 10M-12.001 is an invalid exercise of delegated
243legislative authority.
245Petitioners presented the testimony of Howard G. Burke; Thomas A. Horkan,
256Jr.; Joan Drody Lutton; Patricia Cantieri, and by way of deposition Jasper
268Lawrence Pintacuda. Respondent presented the testimony of Jasper Lawrence
277Pintacuda, Pamela C. Phelps, Pamala Hutchinson, Bess Lander Bell, Allen Wankat,
288and Patterson Lamb. Additionally, Petitioners' Exhibits numbered 3 and 4 and
299Respondent's Exhibits numbered 1 and 3-6 were admitted in evidence.
309Both parties submitted posthearing proposed findings of fact, memoranda of
319law, and written closing arguments. Respondent's Motion to Strike Petitioners'
329posthearing pleadings for late filing was granted by Order dated September 26,
3411986. Respondent's proposed findings of fact numbered 2, 3, 6, 8, and 9 have
355been adopted in substance. The remainder of Respondent's proposed findings of
366fact have rejected as follows : numbers 1, 13, 14, 18, 19, 23-25, and 27-30 as
382not being supported by competent, substantial evidence; and numbers 4, 5, 7, 10-
39512, 15-17, 29-22, and 26 as being immaterial to the issue in this cause.
409FINDINGS OF FACT
4121. Chapter 402, Florida Statutes, provides for licensing of child care
423facilities by the Department of Health and Rehabilitative Services (hereinafter
"433HRS"). It mandates minimum standards for personnel, physical facilities,
443sanitation and safety, nutritional practices, admissions and record keeping,
452transportation safety, child discipline, and plans of activities. Section
461402.306, Florida Statutes, allows counties whose licensing standards meet or
471exceed state minimum standards to perform child care facility licensing in that
483county rather than HRS performing that activity.
4902. Chapter 402, Florida Statutes, was originally enacted in 1974 to
501provide minimum standards for the growing number of commercial day care
512facilities. In the definitional section of that Chapter, the legislature
522specifically defined a child care facility and further specified those programs
533and facilities exempted from the child care facility licensing laws. Section
544402.302(4), Florida Statutes, provided as follows:
"550Child care facility" includes any child
556care center or child care arrangement
562which provides child care for more than
569five children unrelated to the operator
575and which receives a payment, fee, or
582grant for any of the children receiving
589care, wherever operated, and whether or
595not operated for profit. The following
601are not included: public schools and non-
608public schools which are in compliance
614with the Compulsory School Attendance Law,
620chapter 232; summer camps having children
626in full-time residence; summer day camps;
632and Bible Schools normally conducted
637during vacation periods. [Emphasis
641supplied.]
6423. Due to extensive publicity involving certain abuse incidents by
652personnel at child care facilities and public opinion, the child care facility
664licensing laws were revisited in 1984. In a special session, the Legislature
676strengthened some requirements of Chapter 402 and provided for screening and
687background checks of personnel in child care facilities and for reasonable
698parental access to children in those facilities. Chapter 84-551, Laws of
709Florida.
7104. Due to the insistence of HRS and certain counties performing their own
723child care facility licensing that pre- kindergarten programs in schools
733required those schools to obtain licensure as child care facilities, Chapter 402
745was further amended in 1985 to clarify the exclusion of schools. As amended,
758the statutory definition of child care facility now provides:
"767Child care facility" includes any child
773care center or child care arrangement
779which provides child care for more than
786five children unrelated to the operator
792and which receives a payment, fee, or
799grant for any of the children receiving
806care, wherever operated, and whether or
812not operated for profit. The following
818are not included: public schools and non-
825public schools and their integral
830programs; summer camps having children in
836full-time residence; summer day camps; and
842Bible Schools normally conducted during
847during vacation periods. [Emphasis
851supplied.]
852Section 402.302(4), Florida Statutes 1985. The Senate Staff Analysis and
862Economic Impact Statement regarding the amendment of Chapter 402 provides that
873this change is a "Technical amendment which clarifies that public and non-public
885school programs are not subject to licensure as child care facilities."
896Respondent's Exhibit numbered 6.
9005. Following the 1985 amendments to Chapter 402, HRS and the Palm Beach
913County Health Department (which was responsible for child care facility
923licensing in Palm Beach County) jointly requested a legal opinion from the
935Attorney General regarding the scope of the statutory exclusions from child care
947licensing laws for public and nonpublic schools and their integral programs.
958The specific question posed was as follows:
965Do the exemptions under s. 402.302(4),
971F.S., as amended, and s. 9, Ch. 77-620,
979Laws of Florida, apply to public and
986nonpublic schools which offer:
990A. Prekindergarten classes during regular
995school hours in the same physical plant or
1003in an adjoining structure?
1007B. Infant care during regular school
1013hours in the same physical plant or in an
1022adjoining structure?
1024C. School age child care services before
1031and after school hours in the same
1038physical plant or in an adjoining
1044structure?
1045In a lengthy analysis of the statutory exclusion of schools from child care
1058facility licensing requirements, the Attorney General concluded:
1065In sum, then, and unless and until
1072legislatively or judicially determined
1076otherwise, it is my opinion that the
1083exemptions under s. 402.302(4), F.S., as
1089amended by Chs. 84-551 and 85-54, Laws of
1097Florida, and s. 9, Ch. 77-620, Laws of
1105Florida, apply to public and nonpublic
1111schools which offer prekindergarten
1115classes or infant care during regular
1121schools hours or school age child care
1128services before and after school
1133hours. . . . AGO 55-74, p. 7.
11416. Attorney General Opinion 85-74 also provides at page 3 as follows:
1153Thus, public schools and nonpublic schools
1159and their integral programs are not "child
1166care facilit[ies]" for purposes of ss.
1172402.301-402.319, F.S., as amended. The
1177term "integral programs" is not defined
1183within ss. 402.301-402.319, F.S., as
1188amended, or Oh. 85-54, Laws of Florida;
1195however, the word "integral" has generally
1201been defined as "[c]onstituting a
1206completed whole; . . . lacking nothing of
1214completeness." See, 46 C.J.S. Integral p.
12201100; Ballentine's Law Dictionary 645 (3rd
1226ed. 1969). And see, Random House
1232Dictionary of the English Language
1237Integral p. 738 (unabridged ed. 1967)
1243(pertaining to or belonging as a part of
1251the whole; constituent or component;
1256necessary to the completeness of the
1262whole); Webster's Third International
1266Dictionary Integral p. 1173 (1966)
1271(composed of constituent parts; making up
1277a whole). Of., Matezak v. Secretary of
1284Health, Education and Welfare, 299 F.Supp .
1291409, 413 (D.C.N.Y. 1969)("integral" means
1297part of constituent component necessary or
1303essential to complete the whole). Whether
1309a particular child care center or
1315arrangement constitutes an integral
1319program for purposes of s. 402.302(4),
1325FS ., as amended, would appear to present
1333a factual question which can only be
1340reached on a case-by-case basis.
1345[Emphasis supplied.]
13477. During the special session in 1984 and the regular session in 1985, the
1361Legislature increased funding for HRS' child care facility licensing activities
1371and also created 48 additional staff positions for those licensure activities.
13828. Several HRS employees determined that (1) the Attorney General's
1392Opinion was confusing, (2) it was too difficult to determine on a case-by-case
1405basis whether a program was an integral part of a school or a child care
1420facility, and (3) the exclusion of schools from child care facility licensing
1432requirements was inconsistent with legislative intent of protecting children.
1441Accordingly, HRS drafted an amendment to Rule 10M-12.001, Florida Administrative
1451Code, to define the term "integral program". The "rule package" prepared by HRS
1465in compliance with Section 120.54, Florida Statutes, commences with the
1475following language:
1477Reason rule is being filed or amended:
1484Chapter 402.302(4), Florida Statutes,
1488provides the definition of a child care
1495facility. Public and non public schools
1501and their integral programs are precluded
1507from this definition as a child care
1514facility and therefore are not subject to
1521licensure. . . .
1525The term "integral programs", which is not
1532defined by statute, is ambiguous and has
1539been the subject of various
1544interpretations by public and non public
1550schools. For purposes of licensure, this
1556rule amendment is necessary in order to
1563clarify which specific child care programs
1569in the public and non public schools are
1577required to be licensed. Without the rule
1584amendment, some schools will continue to
1590interpret their "integral programs" as
1595meaning their infant and preschool
1600programs, or before and after school
1606programs, thereby avoiding licensure and
1611resulting in no regulation by the
1617department . . .
16219. Rule 10M-12.001, Florida Administrative Code, as proposed, would
1630provide as follows:
1633(1) Child Care Standards and Licensure.
1639(a) Child Care Standards included in this
1646chapter were adopted by the department to
1653protect the health, safety and well being
1660of the children of the State who receive
1668child care in child care facilities as
1675defined in Section 402.302, Florida
1680Statutes, and to promote their emotional
1686and intellectual development and care.
1691(b ) Public and nonpublic schools and
1698their integral programs are not child care
1705facilities as defined in Section
1710402.302(4) Florida Statutes, and are not
1716subject to licensure.
17191. The term "integral programs" includes
1725school activities which are directly
1730related to the educational component of
1736the school for 5 year old kindergarten
1743programs through grade 12, and extra
1749curricular activities, such as sport
1754teams, school yearbook, school band,
1759meetings, and service clubs. The term
1765also includes child care programs
1770administered directly by the school to
1776care and supervise children from 5 year
1783old kindergarten through grade 12 before
1789and after the school day.
17942. The term "integral program" does not
1801include child care programs for children
1807below 5 year old kindergarten, such as
1814infants and preschoolers, and child care
1820programs which are contracted by the
1826school to provide care and supervision for
1833children from 5 year old kindergarten
1839through grade 12 before and after the
1846school day.
184810. The proposed rule as published and noticed by HRS, although defended
1860by HRS vigorously in this proceeding, is not in fact the rule that HRS intends
1875to adopt. HRS now admits that it has no authority to regulate any program in a
1891public school since only the Florida Department of Education can regulate public
1903schools. HRS intends, therefore, to delete the reference to public schools in
1915its proposed rule and to only regulate nonpublic schools although it admits that
1928such regulation of only nonpublic schools would therefore be discriminatory.
193811. HRS further intends to amend its proposed rule so as to clarify that
1952those nonpublic schools which are religious in affiliation will continue to
1963enjoy the additional exemption from child care facility licensure given to them
1975by Section 402.316(1), Florida Statutes, which provides:
1982The provisions of ss. 402.301-402.319,
1987except for the requirements regarding
1992screening of child care personnel, shall
1998not apply to a child care facility which
2006is an integral part of church or parochial
2014schools conducting regularly scheduled
2018classes, courses of study, or education
2024programs accredited by, or by a member of,
2032an organization which publishes and
2037requires compliance with its standards for
2043health, safety, and sanitation. However,
2048such facilities shall meet minimum
2053requirements of the applicable local
2058governing body as to health, sanitation,
2064and safety and shall meet the screening
2071requirements pursuant to ss. 402.305 and
2077402.3055. Failure by a facility to comply
2084with such screening requirements shall
2089result in the loss of the facility's
2096exemption from licensure.
209912. Petitioner Florida Association of Academic Nonpublic Schools
2107(hereinafter "FAANS") is comprised of approximately 25 associations of schools.
2118Additionally, archdioceses, which are separate corporate entities, and which own
2128and operate schools, are direct members as are county organizations and the
2140Florida Catholic Conference. The organization itself represents nonpublic
2148schools in the state of Florida before state agencies, including the Legislature
2160which it actively lobbies. It has a direct relationship as a state
2172representative, one of only five in the country, with the United States
2184Department of Education. It is involved in accreditation and has a code of
2197ethics with which all schools (both direct members and indirect members) must
2209comply. FAANS presently represents 943 schools with approximately 230,000
2219students, out of the approximate 1,750 nonpublic schools in the state of
2232Florida. A majority of the schools represented by FAANS operate educational
2243programs for children under 5 years of age. For the most part, these school
2257programs are not licensed as child care facilities although some of the schools
2270have licensed their programs under duress rather than have their programs closed
2282by the child care facility licensing agencies. All of the nonpublic schools
2294represented by FAANS comply with the Florida Department of Education requirement
2305that they annually submit statistical information including the number of
2315students and faculty in their prekindergarten programs for the Department of
2326Education's Nonpublic School Data Base.
233113. Petitioner Jacksonville Country Day School presented no evidence in
2341this proceeding.
234314. Petitioner The Cushman School is a nonpublic school in Miami, Florida,
2355and is an indirect member of FAANS. It has been in operation for 62 years and
2371has operated educational programs for children under 5 since it was founded. It
2384begins enrolling students at the age of 3 years (and on rare occasion 2 years)
2399and offers education through grade 6. It is not presently licensed as a child
2413care facility.
241515. Under the proposed rule as published in the June 6, 1986, Florida
2428Administrative Weekly, The Cushman School would be required to obtain a child
2440care facility license, the economic impact of which would be significant.
2451First, it would lose its exemption from property taxes as an educational
2463institution at a speculated cost of approximately $10,000. Structural
2473modifications would need to be made to the school for bathing and sleeping
2486facilities. Additional requirements, such as fencing and child-staff ratios,
2495would come into play imposing more costs on the school. The Cushman School
2508possesses historic site status which means even minor repairs, let alone
2519structural modifications, have extensive restrictions imposed as to how they can
2530be done and the materials that can be used. The end result is that if the
2546proposed rule goes into effect, The Cushman School will have to discontinue its
2559educational programs for children under 5 years of age. The economic impact of
2572compliance with child care facility licensing requirements by schools is not
2583unique to The Cushman School.
258816. Section 120.54, Florida Statutes, requires each agency proposing or
2598amending a rule to provide a detailed economic impact statement. The purpose of
2611an economic impact statement is to promote informed decision-making by ensuring
2622an accurate analysis of economic factors, and those factors an agency must
2634consider are clearly specified. An agency must also consider the impact of a
2647proposed rule on small businesses as defined in the Florida Small and Minority
2660Business Assistance Act of 1985. There are nonpublic schools throughout Florida
2671which fit the statutory definition of small business. It is clear from the
2684economic impact statement for proposed rule 10M-12.001 that HRS did not consider
2696the impact of the rule on small business nonpublic schools.
270617. Also to be considered is the cost to an agency of implementing the
2720rule. According to HRS' impact statement, actual implementation statewide will
2730only cost $31. There is no consideration of additional staff time and paperwork
2743to process applications, issue additional licenses, or conduct additional
2752inspections.
275318. There is no comment in the economic impact statement of the impact on
2767competition and the open market for employment, or any indication that such an
2780analysis is inapplicable; rather, the agency's estimate of effect on competition
2791speaks to potential cost savings from deregulation of before and after school
2803care programs.
280519. Similarly, the required analysis of the costs or economic benefits to
2817all persons directly affected by the proposed rule speaks in terms of
2829deregulation and substantial savings and is, accordingly, deceptive.
283720. An agency is also required to provide a detailed statement of the data
2851and method used in making each of the estimates required in the economic impact
2865statement. The only detailed statement in HRS' economic impact statement refers
2876to the costs of printing and mailing, publication of the proposed rule in the
2890Florida Administrative Weekly, and conducting a public hearing on the proposed
2901rule. There is no hint of the data and method used, if any, in reaching other
2917conclusions contained within the economic impact statement.
292421. The economic impact statement accompanying proposed rule 10M-12.001 is
2934inadequate.
293522. Section 120.54(1), Florida Statutes, further requires that an agency
2945proposing a rule give notice of its intended action and the specific legal
2958authority under which its adoption is authorized. As set forth above, the rule
2971proposed by HRS does not reflect its intended action since the rule purports to
2985apply to both public and nonpublic schools and HRS intends to further amend the
2999rule so as to exclude its application to public schools and its application to
3013religious nonpublic schools.
301623. As to the specific legal authority under which the proposed rule is
3029authorized, HRS cites, at the end of the proposed rule, as its rulemaking
3042authority Section 402.301, Florida Statutes. That section is entitled "Child
3052care facilities; legislative intent and declaration of purpose and policy".
3063Nowhere in that legislative intent section is HRS authorized to promulgate
3074rules. The proposed rule thus fails to fulfill that requirement.
3084CONCLUSIONS OF LAW
308724. The Division of Administrative Hearings has jurisdiction over the
3097parties hereto and the subject matter hereof. Section 120.54(4), Florida
3107Statutes.
310825. The parties agree that the burden of proof is on Petitioners to show
3122that proposed rule 10M-12.001 is an invalid exercise of delegated legislative
3133authority. Petitioner Jacksonville Country Day School presented no evidence.
3142Accordingly, Petitioner Jacksonville Country Day School is hereby dismissed from
3152this proceeding.
315426. Petitioners FAANS and The Cushman School, however, have successfully
3164met their burden of proof to show that the proposed rule is an invalid exercise
3179of delegated legislative authority. Although the proposed rule purports to
3189implement the definition section of Chapter 402 governing child care facilities,
3200the proposed rule is an attempt by HRS to legislate by defining "and their
3214integral programs" to exclude from the definition of both public and nonpublic
3226schools anything other than "5 year old kindergarten programs through grade 12."
3238By doing so, HRS undertakes to legislate what a school is and is not. The
3253amendment to Section 402.302(4), Florida Statutes, can be viewed in only one of
3266two ways : as a clarification of original legislative intent that programs in
3279public and nonpublic schools are excluded from child care facility licensure, or
3291as an expansion of the previous exclusion. It is clearly not a limitation or
3305restriction of the exclusion.
330927. The statute, unlike the proposed rule, does not specifically define
3320the terms "integral programs" or "schools." Therefore, they are to be given
3332their plain and ordinary meaning. Department of Business Regulation v. Salvation
3343Limited, Inc., 452 So.2d 65 (Fla. 1st DCA 1984). As pointed out in the Attorney
3358General's Opinion set forth above, "integral" means constituting a completed
3368whole, pertaining to or belonging as a part of the whole. Further, a school is
3383commonly understood to be an institution consisting of a teacher and pupils,
3395irrespective of age, gathered together for instruction. By placing a 5 year-old
3407age limitation on schools, and excluding from the definition educational classes
3418and other programs for children under 5 years of age, HRS has violated the
3432statutory construction plain meaning rule and has exceeded its rulemaking
3442authority. If the Legislature had intended to impose an age limitation on the
3455child care facility licensure exclusion for school programs, it could easily
3466have said so rather than completely excluding public and nonpublic schools.
347728. Perceived necessity for or desirability of an administrative rule does
3488not, of itself, bring into existence authority to promulgate such rule. 4245
3500Corporation v. Division of Beverage, 371 So.2d 1032 (Fla. 1st DCA 1978).
3512Administrative agencies have no inherent rulemaking authority but have only the
3523authority granted them by statute. Section 120.54(15), Florida Statutes. An
3533administrative rule may not add to, amend, modify, or contravene provisions of a
3546statute. A rule which purports to do so is an invalid exercise of delegated
3560legislative authority. Department of Business Regulation v. Salvation Limited,
3569Inc., supra. That is the case here.
357629. Under the Compulsory School Attendance Law, children between the ages
3587of 6 and 16 must attend school, Section 232.01, Florida Statutes (1985), and a
3601child must complete kindergarten in order to enter first grade. For purposes of
3614publicly supported education, a child must be at least 5 years old to enter
3628public kindergarten. Section 232.04, Florida Statutes (1985). These statutes
3637are the source of HRS' use of "5 year old kindergarten" to delineate between
3651child care facilities and schools. However, that delineation is not required or
3663even suggested by those statutes.
366830. The age limitation for eligibility for public kindergarten is placed
3679upon the child. The Legislature has refused to impose age restrictions on
3691students enrolled in nonpublic schools. In fact, the Legislature has chosen to
3703leave matters such as academic and other program development, curricula, and
3714teacher qualifications to nonpublic schools and their accrediting associations.
3723This is one characteristic which distinguishes nonpublic schools from public
3733schools.
373431. Section 402.302(4), Florida Statutes, formerly excluded from the
3743definition of "child care facility" public and nonpublic schools "which are in
3755compliance with the Compulsory School Attendance Law, Chapter 232." Under that
3766language, HRS might have argued (be it illogical) that it was justified in
3779defining a school in terms of a 5-year-old age limitation. Significantly, by
3791its 1985 amendment, the Legislature removed the reference to the Compulsory
3802School Attendance Law. It is axiomatic that legislative enactments are presumed
3813to have some meaning. Here, it is plain that no age limitation on schools and
3828their integral programs is to be imposed by analogy to the Compulsory School
3841Attendance Law. The law itself makes this meaning clear:
3850[N ]othing in this section shall authorize
3857the state or any school district to
3864oversee or exercise control over the
3870curricula or academic programs of
3875nonpublic schools.
3877Section 232.01(1)(b )1., Florida Statutes (1985).
388332. The policy that nonpublic school programs shall remain free of
3894regulation is again expressed in Section 229.808, Florida Statutes (1985). That
3905statute requires nonpublic schools to submit to the Department of Education an
3917annual data base survey and further provides:
3924It is the intent of the Legislature not to
3933regulate, control, approve, or accredit
3938nonpublic educational institutions, but to
3943create a data base where current
3949information may be obtained relative to
3955the educational institutions in this state
3961coming within the provisions of this
3967section as a service to the public, to
3975governmental agencies, and to the other
3981interested parties.
3983Section 229.808(7), Florida Statutes (1985).
398833. Nonpublic schools provide educational opportunities for children less
3997than 5 years of age. The evidence indicates that those classes are located in
4011the same physical facility as the rest of the school, the teachers are part of
4026the schools' teaching staffs, they have the same principal, and students must
4038satisfactorily complete each grade level in order to advance to the next, the
4051same as in school classes for older children. Religious nonpublic schools, in
4063addition to educational programs, have also developed infant and day care
4074services as integral parts of their schools and their ministries. All of these
4087programs, educational and day care, are excluded from the definition of "child
4099care facility" in Chapter 402; yet, proposed rule 10M-12.001 would repeal that
4111exemption.
411234. In Re: Miami Christian School, Inc., 15 Fla. Supp. 2d 171 (March
41251985), concerned a determination by the Property Appraiser of Dade County that
4137certain schools be partially denied ad valorem tax exemptions because the
4148schools were attended by children under 5 years of age. The affected schools
4161maintained that they were "educational institutions" and qualified for the
4171exemptions. In recommending that the exemptions be granted in full, the Special
4183Master opined:
4185There is simply no provision in the
4192Florida Constitution or in the relevant
4198[ tax] statutes which excludes wholly, or
4205in part, from the definition of "education
4212institutions" those schools which admit or
4218integrate into their systems children who
4224are younger than five (5) years of age.
4232Nor is there any . . . decision known to
4242the undersigned which would justify the
4248engrafting onto the statutory language any
4254such limiting proviso.
4257* * *
4260[The undersigned concludes that the
4265Property Appraiser in this instance has
4271simply exceeded his authority in denying
4277the exemptions of the affected schools
4283simply because they have attempted to
4289admit and to integrate into their systems
4296children who are less than five (5) years
4304of age. If the notion of "education" is
4312to be redefined at this late date in such
4321fashion as to exclude the learning
4327programs for children of certain age
4333groups, same should be done by the
4340constitutional lawmakers . . . .
4346Id., at pp. 174, 175. The reasoning of the Special Master in that case applies
4361quite well in this case.
436635. The educational freedom of nonpublic schools does not mean that there
4378is no state oversight or control over them. The Department of Education
4390regulates nonpublic schools to the extent that they are required to submit the
4403annual data base survey. Nonpublic schools are subject to local zoning
4414ordinances. They are inspected by the state fire marshal for fire safety. They
4427are inspected by HRS under Chapter 10D-24, Florida Administrative Code,
4437governing school sanitation. Their school buses are inspected, and drivers are
4448required to be properly licensed by the Department of Highway Safety and Motor
4461Vehicles. In short, nonpublic schools do comply with the state's police power
4473regulations regarding health, safety, and sanitation.
447936. Chapter 402, Florida Statutes, only purports to regulate child care
4490facilities and specifically excludes public and nonpublic schools and their
4500integral programs from the requirements of child care facility licensure.
4510Proposed rule 10M-12.001, in effect amends that statute by modifying the
4521exemption given to schools by the Legislature. Further, by utilizing a five-
4533year old cutoff age to define what is a school and what is a child care facility
4550HRS further attempts to amend the statute by adding a criterion which the
4563Legislature choose not to add. Such simply cannot be done.
457337. The five-year old cutoff age is arbitrary and unreasonable. It
4584continues to be drawn from analogy to some portions--but only some--of the
4596Florida School Code, i.e., that public schools must include kindergarten, and
4607that a child must be 5 years old to attend public kindergarten. However, the
4621Florida School Code also provides that public schools may include nurseries for
46334-year-olds and that, in some instances, 3-year-olds may be admitted to public
4645school. The Legislature has not chosen to define schools in terms of students'
4658ages. It has merely made a policy choice as to the age of children for whom
4674publicly-supported education will be provided.
467938. It is interesting to note that HRS admits in this cause that it cannot
4694regulate as child care facilities programs in public schools and programs in
4706religious nonpublic schools since it has no authority to do so. It further
4719admits that requiring licensure of only programs in nonreligious nonpublic
4729schools would be discriminatory. Yet, it fails to see that promulgating a rule
4742that does so is arbitrary, capricious, and unreasonable.
475039. Proposed rule 10M-12.001 is also invalid for its failure to comply
4762with the rulemaking and adoption procedures in Section 120.54, Florida Statutes,
4773in a number of respects. First, the proposed rule does not give notice of the
4788agency's intended action since the agency has already admitted that it intends
4800to substantially amend its proposed rule to conform with its real intent of only
4814licensing programs in nonreligious nonpublic schools. Second, the specific
4823legal authority relied upon by HRS for authorization of adoption of its proposed
4836rule does not give rulemaking authority to HRS. Third, the economic impact
4848statement accompanying the rule is both inadequate and deceptive.
485740. Petitioners FAANS and The Cushman School have clearly met their burden
4869of proof by competent substantial evidence that proposed rule 10M-12.001 is an
4881invalid exercise of delegated legislative authority and that they are
4891substantially affected persons who have standing to challenge that proposed
4901rule. Florida Home Builders Association v. Department of Labor and Employment
4912Security, 412 So.2d 351 (Fla. 1982). It is, therefore,
4921CONCLUDED and ORDERED that proposed rule 10M-12.001 constitutes an invalid
4931exercise of delegated legislative authority.
4936DONE and ORDERED this 3rd day of October, 1986, at Tallahassee, Florida.
4948___________________________________
4949LINDA M. RIGOT, Hearing Officer
4954Division of Administrative Hearings
4958The Oakland Building
49612009 Apalachee Parkway
4964Tallahassee, Florida 32301
4967(904) 488-9675
4969Filed with the Clerk of the
4975Division of Administrative Hearings
4979this 3rd day of October, 1986.
4985COPIES FURNISHED:
4987William Page, Jr., Secretary
4991Department of Health and
4995Rehabilitative Services
49971323 Winewood Boulevard
5000Tallahassee, Florida 32301
5003W. Dexter Douglass, Esquire
5007Sherry A. Spiers, Esquire
5011Post Office Box 1674
5015Tallahassee, Florida 32302
5018Harold D. Smith, Esquire
50221935 Hollywood Boulevard
5025Hollywood, Florida 33022
5028B. Elaine New, Esquire
5032Department of Health and
5036Rehabilitative Services
50381323 Winewood Boulevard
5041Tallahassee, Florida 32301
5044Liz Cloud, Chief
5047Bureau of Administrative code
50511802 The Capitol
5054Tallahassee, Florida 32301
5057Carroll Webb, Executive Director
5061Administrative Procedures Committee
5064120 Holland Building
5067Tallahassee, Florida 32301
5070A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL
5084REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE
5094GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE
5105COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE
5121DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING
5132FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR
5145WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY
5158RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE
5173ORDER TO BE REVIEWED.
Case Information
- Judge:
- LINDA M. RIGOT
- Date Filed:
- 06/17/1986
- Date Assignment:
- 06/27/1986
- Last Docket Entry:
- 10/03/1986
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Department of Health
- Suffix:
- RP