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.

Summary: HRS proposed rule re: licensing of child care facilities purported to repeal a statutory exemption for schools and was, therefore, invalid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ASSOCIATION OF ACADEMIC )

NONPUBLIC SCHOOLS, JACKSONVILLE )

COUNTRY DAY SCHOOL, and )

THE CUSHMAN SCHOOL , )

)

Petitioners , )

)

vs. ) CASE NO. 86-2272RP

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES , )

)

Respondent. )

__________________________________)

FINAL ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot , the assigned

Rearing Officer of the Division of Administrative Bearings, on August 14 and 15,

1986, in Tallahassee, Florida.

Petitioners Florida Association of Academic Nonpublic Schools, Jacksonville

Country Day School, and The Cushman School were represented by Dexter Douglas,

Esquire, and Sherry Spiers , Esquire, Tallahassee, Florida. Harold D. Smith,

Esquire, Hollywood, Florida, also appeared on behalf of Petitioner Florida

Association of Academic Nonpublic Schools. Respondent Department of Health and

Rehabilitative Services was represented by B. Elaine New, Esquire, Tallahassee,

Florida.

Respondent Department of Health and Rehabilitative Services published an

amendment to rule 10M-12.001, Florida Administrative Code, on June 6, 1986, in

the Florida Administrative Weekly. Chapter 10M-12, Florida Administrative Code,

provides the standards for licensing of child care facilities. The proposed

amendment relates to the statutory exemption of schools from child care facility

licensing laws. The Petitioners filed a Petition to Determine Invalidity of a

Proposed Rule on June 17, 1986, and an Amended Petition to Determine Invalidity

of Proposed Rule on June 18, 1986. Accordingly, the issue for determination

herein is whether proposed rule 10M-12.001 is an invalid exercise of delegated

legislative authority.

Petitioners presented the testimony of Howard G. Burke; Thomas A. Horkan,

Jr.; Joan Drody Lutton; Patricia Cantieri, and by way of deposition Jasper

Lawrence Pintacuda. Respondent presented the testimony of Jasper Lawrence

Pintacuda, Pamela C. Phelps, Pamala Hutchinson, Bess Lander Bell, Allen Wankat,

and Patterson Lamb. Additionally, Petitioners' Exhibits numbered 3 and 4 and

Respondent's Exhibits numbered 1 and 3-6 were admitted in evidence.

Both parties submitted posthearing proposed findings of fact, memoranda of

law, and written closing arguments. Respondent's Motion to Strike Petitioners'

posthearing pleadings for late filing was granted by Order dated September 26,

1986. Respondent's proposed findings of fact numbered 2, 3, 6, 8, and 9 have

been adopted in substance. The remainder of Respondent's proposed findings of

fact have rejected as follows : numbers 1, 13, 14, 18, 19, 23-25, and 27-30 as

not being supported by competent, substantial evidence; and numbers 4, 5, 7, 10-

12, 15-17, 29-22, and 26 as being immaterial to the issue in this cause.

FINDINGS OF FACT

1. Chapter 402, Florida Statutes, provides for licensing of child care

facilities by the Department of Health and Rehabilitative Services (hereinafter

"HRS"). It mandates minimum standards for personnel, physical facilities,

sanitation and safety, nutritional practices, admissions and record keeping,

transportation safety, child discipline, and plans of activities. Section

402.306, Florida Statutes, allows counties whose licensing standards meet or

exceed state minimum standards to perform child care facility licensing in that

county rather than HRS performing that activity.

2. Chapter 402, Florida Statutes, was originally enacted in 1974 to

provide minimum standards for the growing number of commercial day care

facilities. In the definitional section of that Chapter, the legislature

specifically defined a child care facility and further specified those programs

and facilities exempted from the child care facility licensing laws. Section

402.302(4), Florida Statutes, provided as follows:

"Child care facility" includes any child

care center or child care arrangement

which provides child care for more than

five children unrelated to the operator

and which receives a payment, fee, or

grant for any of the children receiving

care, wherever operated, and whether or

not operated for profit. The following

are not included: public schools and non-

public schools which are in compliance

with the Compulsory School Attendance Law,

chapter 232; summer camps having children

in full-time residence; summer day camps;

and Bible Schools normally conducted

during vacation periods. [Emphasis

supplied.]

3. Due to extensive publicity involving certain abuse incidents by

personnel at child care facilities and public opinion, the child care facility

licensing laws were revisited in 1984. In a special session, the Legislature

strengthened some requirements of Chapter 402 and provided for screening and

background checks of personnel in child care facilities and for reasonable

parental access to children in those facilities. Chapter 84-551, Laws of

Florida.

4. Due to the insistence of HRS and certain counties performing their own

child care facility licensing that pre- kindergarten programs in schools

required those schools to obtain licensure as child care facilities, Chapter 402

was further amended in 1985 to clarify the exclusion of schools. As amended,

the statutory definition of child care facility now provides:

"Child care facility" includes any child

care center or child care arrangement

which provides child care for more than

five children unrelated to the operator

and which receives a payment, fee, or

grant for any of the children receiving

care, wherever operated, and whether or

not operated for profit. The following

are not included: public schools and non-

public schools and their integral

programs; summer camps having children in

full-time residence; summer day camps; and

Bible Schools normally conducted during

during vacation periods. [Emphasis

supplied.]

Section 402.302(4), Florida Statutes 1985. The Senate Staff Analysis and

Economic Impact Statement regarding the amendment of Chapter 402 provides that

this change is a "Technical amendment which clarifies that public and non-public

school programs are not subject to licensure as child care facilities."

Respondent's Exhibit numbered 6.

5. Following the 1985 amendments to Chapter 402, HRS and the Palm Beach

County Health Department (which was responsible for child care facility

licensing in Palm Beach County) jointly requested a legal opinion from the

Attorney General regarding the scope of the statutory exclusions from child care

licensing laws for public and nonpublic schools and their integral programs.

The specific question posed was as follows:

Do the exemptions under s. 402.302(4),

F.S., as amended, and s. 9, Ch. 77-620,

Laws of Florida, apply to public and

nonpublic schools which offer:

A. Prekindergarten classes during regular

school hours in the same physical plant or

in an adjoining structure?

B. Infant care during regular school

hours in the same physical plant or in an

adjoining structure?

C. School age child care services before

and after school hours in the same

physical plant or in an adjoining

structure?

In a lengthy analysis of the statutory exclusion of schools from child care

facility licensing requirements, the Attorney General concluded:

In sum, then, and unless and until

legislatively or judicially determined

otherwise, it is my opinion that the

exemptions under s. 402.302(4), F.S., as

amended by Chs. 84-551 and 85-54, Laws of

Florida, and s. 9, Ch. 77-620, Laws of

Florida, apply to public and nonpublic

schools which offer prekindergarten

classes or infant care during regular

schools hours or school age child care

services before and after school

hours. . . . AGO 55-74, p. 7.

6. Attorney General Opinion 85-74 also provides at page 3 as follows:

Thus, public schools and nonpublic schools

and their integral programs are not "child

care facilit[ies]" for purposes of ss.

402.301-402.319, F.S., as amended. The

term "integral programs" is not defined

within ss. 402.301-402.319, F.S., as

amended, or Oh. 85-54, Laws of Florida;

however, the word "integral" has generally

been defined as "[c]onstituting a

completed whole; . . . lacking nothing of

completeness." See, 46 C.J.S. Integral p.

1100; Ballentine's Law Dictionary 645 (3rd

ed. 1969). And see, Random House

Dictionary of the English Language

Integral p. 738 (unabridged ed. 1967)

(pertaining to or belonging as a part of

the whole; constituent or component;

necessary to the completeness of the

whole); Webster's Third International

Dictionary Integral p. 1173 (1966)

(composed of constituent parts; making up

a whole). Of., Matezak v. Secretary of

Health, Education and Welfare, 299 F.Supp .

409, 413 (D.C.N.Y. 1969)("integral" means

part of constituent component necessary or

essential to complete the whole). Whether

a particular child care center or

arrangement constitutes an integral

program for purposes of s. 402.302(4),

FS ., as amended, would appear to present

a factual question which can only be

reached on a case-by-case basis.

[Emphasis supplied.]

7. During the special session in 1984 and the regular session in 1985, the

Legislature increased funding for HRS' child care facility licensing activities

and also created 48 additional staff positions for those licensure activities.

8. Several HRS employees determined that (1) the Attorney General's

Opinion was confusing, (2) it was too difficult to determine on a case-by-case

basis whether a program was an integral part of a school or a child care

facility, and (3) the exclusion of schools from child care facility licensing

requirements was inconsistent with legislative intent of protecting children.

Accordingly, HRS drafted an amendment to Rule 10M-12.001, Florida Administrative

Code, to define the term "integral program". The "rule package" prepared by HRS

in compliance with Section 120.54, Florida Statutes, commences with the

following language:

Reason rule is being filed or amended:

Chapter 402.302(4), Florida Statutes,

provides the definition of a child care

facility. Public and non public schools

and their integral programs are precluded

from this definition as a child care

facility and therefore are not subject to

licensure. . . .

The term "integral programs", which is not

defined by statute, is ambiguous and has

been the subject of various

interpretations by public and non public

schools. For purposes of licensure, this

rule amendment is necessary in order to

clarify which specific child care programs

in the public and non public schools are

required to be licensed. Without the rule

amendment, some schools will continue to

interpret their "integral programs" as

meaning their infant and preschool

programs, or before and after school

programs, thereby avoiding licensure and

resulting in no regulation by the

department . . .

9. Rule 10M-12.001, Florida Administrative Code, as proposed, would

provide as follows:

(1) Child Care Standards and Licensure.

(a) Child Care Standards included in this

chapter were adopted by the department to

protect the health, safety and well being

of the children of the State who receive

child care in child care facilities as

defined in Section 402.302, Florida

Statutes, and to promote their emotional

and intellectual development and care.

(b ) Public and nonpublic schools and

their integral programs are not child care

facilities as defined in Section

402.302(4) Florida Statutes, and are not

subject to licensure.

1. The term "integral programs" includes

school activities which are directly

related to the educational component of

the school for 5 year old kindergarten

programs through grade 12, and extra

curricular activities, such as sport

teams, school yearbook, school band,

meetings, and service clubs. The term

also includes child care programs

administered directly by the school to

care and supervise children from 5 year

old kindergarten through grade 12 before

and after the school day.

2. The term "integral program" does not

include child care programs for children

below 5 year old kindergarten, such as

infants and preschoolers, and child care

programs which are contracted by the

school to provide care and supervision for

children from 5 year old kindergarten

through grade 12 before and after the

school day.

10. The proposed rule as published and noticed by HRS, although defended

by HRS vigorously in this proceeding, is not in fact the rule that HRS intends

to adopt. HRS now admits that it has no authority to regulate any program in a

public school since only the Florida Department of Education can regulate public

schools. HRS intends, therefore, to delete the reference to public schools in

its proposed rule and to only regulate nonpublic schools although it admits that

such regulation of only nonpublic schools would therefore be discriminatory.

11. HRS further intends to amend its proposed rule so as to clarify that

those nonpublic schools which are religious in affiliation will continue to

enjoy the additional exemption from child care facility licensure given to them

by Section 402.316(1), Florida Statutes, which provides:

The provisions of ss. 402.301-402.319,

except for the requirements regarding

screening of child care personnel, shall

not apply to a child care facility which

is an integral part of church or parochial

schools conducting regularly scheduled

classes, courses of study, or education

programs accredited by, or by a member of,

an organization which publishes and

requires compliance with its standards for

health, safety, and sanitation. However,

such facilities shall meet minimum

requirements of the applicable local

governing body as to health, sanitation,

and safety and shall meet the screening

requirements pursuant to ss. 402.305 and

402.3055. Failure by a facility to comply

with such screening requirements shall

result in the loss of the facility's

exemption from licensure.

12. Petitioner Florida Association of Academic Nonpublic Schools

(hereinafter "FAANS") is comprised of approximately 25 associations of schools.

Additionally, archdioceses, which are separate corporate entities, and which own

and operate schools, are direct members as are county organizations and the

Florida Catholic Conference. The organization itself represents nonpublic

schools in the state of Florida before state agencies, including the Legislature

which it actively lobbies. It has a direct relationship as a state

representative, one of only five in the country, with the United States

Department of Education. It is involved in accreditation and has a code of

ethics with which all schools (both direct members and indirect members) must

comply. FAANS presently represents 943 schools with approximately 230,000

students, out of the approximate 1,750 nonpublic schools in the state of

Florida. A majority of the schools represented by FAANS operate educational

programs for children under 5 years of age. For the most part, these school

programs are not licensed as child care facilities although some of the schools

have licensed their programs under duress rather than have their programs closed

by the child care facility licensing agencies. All of the nonpublic schools

represented by FAANS comply with the Florida Department of Education requirement

that they annually submit statistical information including the number of

students and faculty in their prekindergarten programs for the Department of

Education's Nonpublic School Data Base.

13. Petitioner Jacksonville Country Day School presented no evidence in

this proceeding.

14. Petitioner The Cushman School is a nonpublic school in Miami, Florida,

and is an indirect member of FAANS. It has been in operation for 62 years and

has operated educational programs for children under 5 since it was founded. It

begins enrolling students at the age of 3 years (and on rare occasion 2 years)

and offers education through grade 6. It is not presently licensed as a child

care facility.

15. Under the proposed rule as published in the June 6, 1986, Florida

Administrative Weekly, The Cushman School would be required to obtain a child

care facility license, the economic impact of which would be significant.

First, it would lose its exemption from property taxes as an educational

institution at a speculated cost of approximately $10,000. Structural

modifications would need to be made to the school for bathing and sleeping

facilities. Additional requirements, such as fencing and child-staff ratios,

would come into play imposing more costs on the school. The Cushman School

possesses historic site status which means even minor repairs, let alone

structural modifications, have extensive restrictions imposed as to how they can

be done and the materials that can be used. The end result is that if the

proposed rule goes into effect, The Cushman School will have to discontinue its

educational programs for children under 5 years of age. The economic impact of

compliance with child care facility licensing requirements by schools is not

unique to The Cushman School.

16. Section 120.54, Florida Statutes, requires each agency proposing or

amending a rule to provide a detailed economic impact statement. The purpose of

an economic impact statement is to promote informed decision-making by ensuring

an accurate analysis of economic factors, and those factors an agency must

consider are clearly specified. An agency must also consider the impact of a

proposed rule on small businesses as defined in the Florida Small and Minority

Business Assistance Act of 1985. There are nonpublic schools throughout Florida

which fit the statutory definition of small business. It is clear from the

economic impact statement for proposed rule 10M-12.001 that HRS did not consider

the impact of the rule on small business nonpublic schools.

17. Also to be considered is the cost to an agency of implementing the

rule. According to HRS' impact statement, actual implementation statewide will

only cost $31. There is no consideration of additional staff time and paperwork

to process applications, issue additional licenses, or conduct additional

inspections.

18. There is no comment in the economic impact statement of the impact on

competition and the open market for employment, or any indication that such an

analysis is inapplicable; rather, the agency's estimate of effect on competition

speaks to potential cost savings from deregulation of before and after school

care programs.

19. Similarly, the required analysis of the costs or economic benefits to

all persons directly affected by the proposed rule speaks in terms of

deregulation and substantial savings and is, accordingly, deceptive.

20. An agency is also required to provide a detailed statement of the data

and method used in making each of the estimates required in the economic impact

statement. The only detailed statement in HRS' economic impact statement refers

to the costs of printing and mailing, publication of the proposed rule in the

Florida Administrative Weekly, and conducting a public hearing on the proposed

rule. There is no hint of the data and method used, if any, in reaching other

conclusions contained within the economic impact statement.

21. The economic impact statement accompanying proposed rule 10M-12.001 is

inadequate.

22. Section 120.54(1), Florida Statutes, further requires that an agency

proposing a rule give notice of its intended action and the specific legal

authority under which its adoption is authorized. As set forth above, the rule

proposed by HRS does not reflect its intended action since the rule purports to

apply to both public and nonpublic schools and HRS intends to further amend the

rule so as to exclude its application to public schools and its application to

religious nonpublic schools.

23. As to the specific legal authority under which the proposed rule is

authorized, HRS cites, at the end of the proposed rule, as its rulemaking

authority Section 402.301, Florida Statutes. That section is entitled "Child

care facilities; legislative intent and declaration of purpose and policy".

Nowhere in that legislative intent section is HRS authorized to promulgate

rules. The proposed rule thus fails to fulfill that requirement.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has jurisdiction over the

parties hereto and the subject matter hereof. Section 120.54(4), Florida

Statutes.

25. The parties agree that the burden of proof is on Petitioners to show

that proposed rule 10M-12.001 is an invalid exercise of delegated legislative

authority. Petitioner Jacksonville Country Day School presented no evidence.

Accordingly, Petitioner Jacksonville Country Day School is hereby dismissed from

this proceeding.

26. Petitioners FAANS and The Cushman School, however, have successfully

met their burden of proof to show that the proposed rule is an invalid exercise

of delegated legislative authority. Although the proposed rule purports to

implement the definition section of Chapter 402 governing child care facilities,

the proposed rule is an attempt by HRS to legislate by defining "and their

integral programs" to exclude from the definition of both public and nonpublic

schools anything other than "5 year old kindergarten programs through grade 12."

By doing so, HRS undertakes to legislate what a school is and is not. The

amendment to Section 402.302(4), Florida Statutes, can be viewed in only one of

two ways : as a clarification of original legislative intent that programs in

public and nonpublic schools are excluded from child care facility licensure, or

as an expansion of the previous exclusion. It is clearly not a limitation or

restriction of the exclusion.

27. The statute, unlike the proposed rule, does not specifically define

the terms "integral programs" or "schools." Therefore, they are to be given

their plain and ordinary meaning. Department of Business Regulation v. Salvation

Limited, Inc., 452 So.2d 65 (Fla. 1st DCA 1984). As pointed out in the Attorney

General's Opinion set forth above, "integral" means constituting a completed

whole, pertaining to or belonging as a part of the whole. Further, a school is

commonly understood to be an institution consisting of a teacher and pupils,

irrespective of age, gathered together for instruction. By placing a 5 year-old

age limitation on schools, and excluding from the definition educational classes

and other programs for children under 5 years of age, HRS has violated the

statutory construction plain meaning rule and has exceeded its rulemaking

authority. If the Legislature had intended to impose an age limitation on the

child care facility licensure exclusion for school programs, it could easily

have said so rather than completely excluding public and nonpublic schools.

28. Perceived necessity for or desirability of an administrative rule does

not, of itself, bring into existence authority to promulgate such rule. 4245

Corporation v. Division of Beverage, 371 So.2d 1032 (Fla. 1st DCA 1978).

Administrative agencies have no inherent rulemaking authority but have only the

authority granted them by statute. Section 120.54(15), Florida Statutes. An

administrative rule may not add to, amend, modify, or contravene provisions of a

statute. A rule which purports to do so is an invalid exercise of delegated

legislative authority. Department of Business Regulation v. Salvation Limited,

Inc., supra. That is the case here.

29. Under the Compulsory School Attendance Law, children between the ages

of 6 and 16 must attend school, Section 232.01, Florida Statutes (1985), and a

child must complete kindergarten in order to enter first grade. For purposes of

publicly supported education, a child must be at least 5 years old to enter

public kindergarten. Section 232.04, Florida Statutes (1985). These statutes

are the source of HRS' use of "5 year old kindergarten" to delineate between

child care facilities and schools. However, that delineation is not required or

even suggested by those statutes.

30. The age limitation for eligibility for public kindergarten is placed

upon the child. The Legislature has refused to impose age restrictions on

students enrolled in nonpublic schools. In fact, the Legislature has chosen to

leave matters such as academic and other program development, curricula, and

teacher qualifications to nonpublic schools and their accrediting associations.

This is one characteristic which distinguishes nonpublic schools from public

schools.

31. Section 402.302(4), Florida Statutes, formerly excluded from the

definition of "child care facility" public and nonpublic schools "which are in

compliance with the Compulsory School Attendance Law, Chapter 232." Under that

language, HRS might have argued (be it illogical) that it was justified in

defining a school in terms of a 5-year-old age limitation. Significantly, by

its 1985 amendment, the Legislature removed the reference to the Compulsory

School Attendance Law. It is axiomatic that legislative enactments are presumed

to have some meaning. Here, it is plain that no age limitation on schools and

their integral programs is to be imposed by analogy to the Compulsory School

Attendance Law. The law itself makes this meaning clear:

[N ]othing in this section shall authorize

the state or any school district to

oversee or exercise control over the

curricula or academic programs of

nonpublic schools.

Section 232.01(1)(b )1., Florida Statutes (1985).

32. The policy that nonpublic school programs shall remain free of

regulation is again expressed in Section 229.808, Florida Statutes (1985). That

statute requires nonpublic schools to submit to the Department of Education an

annual data base survey and further provides:

It is the intent of the Legislature not to

regulate, control, approve, or accredit

nonpublic educational institutions, but to

create a data base where current

information may be obtained relative to

the educational institutions in this state

coming within the provisions of this

section as a service to the public, to

governmental agencies, and to the other

interested parties.

Section 229.808(7), Florida Statutes (1985).

33. Nonpublic schools provide educational opportunities for children less

than 5 years of age. The evidence indicates that those classes are located in

the same physical facility as the rest of the school, the teachers are part of

the schools' teaching staffs, they have the same principal, and students must

satisfactorily complete each grade level in order to advance to the next, the

same as in school classes for older children. Religious nonpublic schools, in

addition to educational programs, have also developed infant and day care

services as integral parts of their schools and their ministries. All of these

programs, educational and day care, are excluded from the definition of "child

care facility" in Chapter 402; yet, proposed rule 10M-12.001 would repeal that

exemption.

34. In Re: Miami Christian School, Inc., 15 Fla. Supp. 2d 171 (March

1985), concerned a determination by the Property Appraiser of Dade County that

certain schools be partially denied ad valorem tax exemptions because the

schools were attended by children under 5 years of age. The affected schools

maintained that they were "educational institutions" and qualified for the

exemptions. In recommending that the exemptions be granted in full, the Special

Master opined:

There is simply no provision in the

Florida Constitution or in the relevant

[ tax] statutes which excludes wholly, or

in part, from the definition of "education

institutions" those schools which admit or

integrate into their systems children who

are younger than five (5) years of age.

Nor is there any . . . decision known to

the undersigned which would justify the

engrafting onto the statutory language any

such limiting proviso.

* * *

[The undersigned concludes that the

Property Appraiser in this instance has

simply exceeded his authority in denying

the exemptions of the affected schools

simply because they have attempted to

admit and to integrate into their systems

children who are less than five (5) years

of age. If the notion of "education" is

to be redefined at this late date in such

fashion as to exclude the learning

programs for children of certain age

groups, same should be done by the

constitutional lawmakers . . . .

Id., at pp. 174, 175. The reasoning of the Special Master in that case applies

quite well in this case.

35. The educational freedom of nonpublic schools does not mean that there

is no state oversight or control over them. The Department of Education

regulates nonpublic schools to the extent that they are required to submit the

annual data base survey. Nonpublic schools are subject to local zoning

ordinances. They are inspected by the state fire marshal for fire safety. They

are inspected by HRS under Chapter 10D-24, Florida Administrative Code,

governing school sanitation. Their school buses are inspected, and drivers are

required to be properly licensed by the Department of Highway Safety and Motor

Vehicles. In short, nonpublic schools do comply with the state's police power

regulations regarding health, safety, and sanitation.

36. Chapter 402, Florida Statutes, only purports to regulate child care

facilities and specifically excludes public and nonpublic schools and their

integral programs from the requirements of child care facility licensure.

Proposed rule 10M-12.001, in effect amends that statute by modifying the

exemption given to schools by the Legislature. Further, by utilizing a five-

year old cutoff age to define what is a school and what is a child care facility

HRS further attempts to amend the statute by adding a criterion which the

Legislature choose not to add. Such simply cannot be done.

37. The five-year old cutoff age is arbitrary and unreasonable. It

continues to be drawn from analogy to some portions--but only some--of the

Florida School Code, i.e., that public schools must include kindergarten, and

that a child must be 5 years old to attend public kindergarten. However, the

Florida School Code also provides that public schools may include nurseries for

4-year-olds and that, in some instances, 3-year-olds may be admitted to public

school. The Legislature has not chosen to define schools in terms of students'

ages. It has merely made a policy choice as to the age of children for whom

publicly-supported education will be provided.

38. It is interesting to note that HRS admits in this cause that it cannot

regulate as child care facilities programs in public schools and programs in

religious nonpublic schools since it has no authority to do so. It further

admits that requiring licensure of only programs in nonreligious nonpublic

schools would be discriminatory. Yet, it fails to see that promulgating a rule

that does so is arbitrary, capricious, and unreasonable.

39. Proposed rule 10M-12.001 is also invalid for its failure to comply

with the rulemaking and adoption procedures in Section 120.54, Florida Statutes,

in a number of respects. First, the proposed rule does not give notice of the

agency's intended action since the agency has already admitted that it intends

to substantially amend its proposed rule to conform with its real intent of only

licensing programs in nonreligious nonpublic schools. Second, the specific

legal authority relied upon by HRS for authorization of adoption of its proposed

rule does not give rulemaking authority to HRS. Third, the economic impact

statement accompanying the rule is both inadequate and deceptive.

40. Petitioners FAANS and The Cushman School have clearly met their burden

of proof by competent substantial evidence that proposed rule 10M-12.001 is an

invalid exercise of delegated legislative authority and that they are

substantially affected persons who have standing to challenge that proposed

rule. Florida Home Builders Association v. Department of Labor and Employment

Security, 412 So.2d 351 (Fla. 1982). It is, therefore,

CONCLUDED and ORDERED that proposed rule 10M-12.001 constitutes an invalid

exercise of delegated legislative authority.

DONE and ORDERED this 3rd day of October, 1986, at Tallahassee, Florida.

___________________________________

LINDA M. RIGOT, Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of October, 1986.

COPIES FURNISHED:

William Page, Jr., Secretary

Department of Health and

Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

W. Dexter Douglass, Esquire

Sherry A. Spiers, Esquire

Post Office Box 1674

Tallahassee, Florida 32302

Harold D. Smith, Esquire

1935 Hollywood Boulevard

Hollywood, Florida 33022

B. Elaine New, Esquire

Department of Health and

Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative code

1802 The Capitol

Tallahassee, Florida 32301

Carroll Webb, Executive Director

Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32301

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 ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

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