STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STANLEY CARTER KISER, )

)

Petitioner, )

)

vs. ) CASE NO. 76-440RX

) 76-441RX

FLORIDA STATE UNIVERSITY, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 10:00

1. on April 8, 1976, in Room 103 of the Collins Building, Tallahassee, Florida.

   
   

   APPEARANCES

   
   

   Mr. Stanley Carter Kiser 3220 Jim Lee Road Tallahassee, Florida 32301

   
   

   Mr. Robert D. Bickel University Attorney

   Suite 309, Westcott Building Florida State University Tallahassee, Florida 32306

   
   

   Mr. John D. Carlson Florida Board of Education

   Suite 400, Barnett Bank Building Tallahassee, Florida 32304

   
   

   INTRODUCTION

   
   

   Pursuant to F.S. Subsection 120.56, petitioner filed two petitions seeking administrative determinations of two rules. Named as parties respondent were the Florida Board of Regents, Florida State University, the Florida State University College of Law, Vice Dean David Dickson, and Professor Joseph W. Jacobs. The petitions challenge the validity of Florida Administrative Code, Rule 6J-5.56(11)(b), also known as the "12 hour F rule" (Case No. 76-440RX) and Rule 6J-5.56(5)(c), also known as "the mandatory grade curve rule" (Case No. 76- 441RX). Due to the similarity of issues, the cases were consolidated by the undersigned hearing officer.

   
   

   The respondent Florida State University and the Florida Board of Regents filed various motions prior to the hearing. At a prehearing conference, the following occurred:

   1. Inasmuch as the agency whose rule is being attacked is Florida State University; the Board of Regents, the College of Law, Vice Dean Dickson and Professor Jacobs were dismissed as parties respondent. The Board of Regents was permitted to join in the proceedings as an intervenor.

      
      

   2. All allegations of the petitions relating to the merits or application, rather than to the validity, of the challenged rules were stricken.

      
      

   3. The respondent's motion to quash the subpoena duces tecum served upon Alma E. Koski was granted.

      
      

   4. All other portions of the prehearing motions were denied.

ISSUES

The issue presented for determination in these causes, pursuant to F.S. Section 120.56(1), is whether or not the "12 hour F rule," F.A.C. Rule 6J- 5.56(11)(b), and/or the "mandatory grade curve rule," F.A.C. Rule 6J-5.56(5)(c), constitute either

1. an invalid exercise of validly delegated legislative authority, or

   
   

2. an exercise of invalidly delegated legislative authority.

The major contention of petitioner is that the respondent failed to comply with the notice requirements of F.S. Section 120.54(1)(a) when it adopted the rules in question. No other issues, including the wisdom or the applicability of such rules, are appropriate in a Section 120.56 proceeding for an administrative determination of a rule.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The petitions filed herein allege that petitioner was academically dismissed from the law school because of the "12 hour F rule" and that he received a failing grade in Tax 601-602 because of the "mandatory grade curve rule."

   
   

2. After some student input, the faculty of the FSU law school adopted the "12 hour F rule" and the "mandatory grade curve rule" in 1973 and 1975 respectively, prior to the effective date of Chapter 75-191, Laws of Florida.

   
   

3. Effective June 26, 1975, Chapter 75-191, Laws of Florida, included units of the state university system within the confines of the Administrative Procedures Act, Chapter 120 of the Florida Statutes. Pursuant thereto, the respondent, Florida State University, began the process of adopting new and repromulgating its existing rules.

   
   

4. The Dean of the FSU Law School was instructed by respondent to submit all of the law school rules to the respondent so that they could be properly promulgated along with other FSU rules. The Dean complied with this request.

   
   

5. On August 20, 1975, and again on August 22, 1975, legal ads were placed in the Tallahassee Democrat concerning respondent's intent to adopt proposed rules. Notices were also published, making reference to the aforesaid more

   complete notice, in the Miami Herald, the St. Petersburg Times and the Jacksonville Times-Union. The August 20th notice in the Tallahassee Democrat announced that a hearing would be held on September 3, 1975, and set forth for each rule the purpose and effect of the rule, a summary of the rule, general authority for the rule and the law implemented. The challenged College of Law Rules numbered, as 6J-5.56, were included in this legal ad and were in substantially the same form as that previously adopted by the law school faculty.

   
   

6. By letter dated August 13, 1975, Mr. Mike Beaudoin, respondent's Director of Informational Services, notified respondent's three foreign branches in Florence, Italy, London, England and the Canal Zone of the proposed rules.

   
   

7. Gail Shumann, a staff assistant to respondent's Vice President for Academic Relations, assisted in the rule promulgation process. Utilizing a list furnished her by the Coordinator of Student Organizations, Shumann sent by campus mail a "notice of intent to file rules" to all listed registered student organizations existing on January 17, 1975. Such notice was also posted in the personnel office. This notice announced that the rules would be adopted on September 10, 1975, that a copy of the notice of the proposed rules was available in the Office of Student Government, that a copy of the rules was available at the information desk in the Strozier Library and could be obtained at cost from the Division of University Relations and that a hearing on the proposed rules would be held on September 3-5, 1975. The notice was dated August 18, 1975.

   
   

8. The list of registered student organizations furnished Ms. Shumann by the Coordinator of Student Organizations did not contain the name of the student body president and listed the former president of the student bar association. A secretary for the student body president was unable at the time of the hearing to find or to recall whether she had received copies of the notice of intent to adopt rules. She testified that she did not have the opportunity to go through all of her files and that it was possible she received such notice. The president of the student bar association, who was not on campus during the summer quarter, could not recall having seen the notice of intent, but testified that it was possible that it came through his office while he was off campus.

   
   

9. At least fourteen days prior to the scheduled hearing, Informational Services Director Beaudoin directed a reliable employee to post the notice of intent upon respondent's fifteen official bulletin boards.

   
   

10. On August 20, 1975, respondent's rules were filed with the Joint Administrative Procedures Committee.

    
    

11. Public hearings were held on September 3, 4, and 5, 1975, on the FSU campus for the purpose of hearing comments concerning the proposed rules. Few persons attended these hearings.

    
    

12. The rules were filed with the Secretary of State on September 10, 1975, and became effective on September 30, 1975.

CONCLUSIONS OF LAW

As noted above, in a F.S. Section 120.56 proceeding for an administrative determination of the validity of a rule, there are two grounds upon which a rule may be challenged:

1. that the rule is an invalid exercise of validly delegated legislative authority; or

   
   

2. that the rule is an exercise of invalidly delegated legislative authority.

Although the petitions filed by petitioner contain allegations of lack of legislative authority and lack of citation of legislative authority for the rules in question, petitioner failed to present evidence of either. A review of the applicable statutes and other rules governing the state university system provide ample authority for the two rules in question. F.S. Subsection 240.042(1) and (2); 241.475; F.A.C. Rules 6C-4.01; 6C-6.10 and 6C-6.11. The

rules as filed with the Secretary of State clearly cite the general authority under which they are authorized, as well as the law being implemented.

Petitioner's prime contention in this proceeding, to which virtually all of the evidence at the hearing was directed, is that respondent failed to provide sufficient notice of intent to adopt the challenged rules. It is important to point out here that prior to the time unites of the state university system were expressly made subject to the Administrative Procedure Act, the law school faculty had adopted the two rules in question after considerable student input. It is only the repromulgation of those rules with which we are here concerned.

1. Section 120.54(1)(a) sets forth the manner in which educational units are to publish, mail or post notice of intent to adopt, amend or repeal a rule. Educational units are required, at least fourteen days prior to the intended action, to give notice of intent

   
   

   1. By publication in a newspaper of general circulation in the affected area;

   2. By mail to all persons who have made requests of the educational unit for advance notice of its proceedings and to organizations representing persons affected by the proposed rule; and

   3. By posting in appropriate places so that those particular classes of persons to whom the intended action is directed may be duly notified.

The undersigned hearing officer concludes that the respondent, under any standard of reasonableness, substantially complied with the notice requirements of F.S. Section 120.54(1)(a). The respondent timely published its notice of intent in four Florida newspapers of general circulation. Notice was also sent to respondent's three foreign campuses. Notice of the proposed rules was made available in the office of student government and a copy of the rules was placed in the main library on campus. Hearings were conducted over a three-day period. While these hearings may have occurred during the student break between quarters, the particular circumstances and time constraints placed upon respondent for completion of compliance with the Administrative Procedures Act are to be taken into account. Chapter 75-191 became effective on June 26, 1975, and the Administrative Procedures Act. mandated certification of respondent's rules by October 1, 1975. See F.S. 120.72(4)(a). By campus mail, all listed registered student organizations were sent a copy of the notice of intent. Such notice was also placed upon the respondent's fifteen official bulletin boards, as well as in the personnel office which receives substantial student traffic.

Such extensive actions to afford reasonable notice of the respondent's intent to

properly adopt or repromulgate its rules constitutes sufficient compliance with the requirements of F.S. Section 120.54. The possibility that one or two persons or classes of persons, out of over 25,000 affected individuals, may have been unintentionally omitted from actual notification does not defeat the respondent's reasonable and substantial statutory compliance with the Administrative Procedures Act.

In conclusion, it is hound that the challenged rules are a valid exercise of validly delegated legislative authority and were adopted pursuant to the requirements of the Administrative Procedures Act.

DONE and entered this 26th day of April, 1976, in Tallahassee, Florida,

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Mr. Stanley Carter Kiser 3220 Jim Lee Road Tallahassee, Florida 32301

Mr. Robert D. Bickel University Attorney

Suite 309, Westcott Building Florida State University Tallahassee, Florida 32306

Mr. John D. Carlson Florida Board of Education

Suite 400, Barnett Bank Building Tallahassee, Florida 32304

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STANLEY C. KISER

Petitioner,

vs. CASE NO. 76-440RX

76-441RX

FLORIDA STATE UNIVERSITY

Respondent.

/

FINAL ORDER

Pursuant to notice, an Administrative Hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 9:30

A.M. on May 24, 1976, in Room 103 of the Collins Building, Tallahassee, Florida. Stanley C. Kiser, Petitioner, appeared in his own behalf. Robert D. Bickel, Esquire, and John D. Carlson, Esquire, appeared as Counsel for Respondent, Florida State University, and Intervenor, Florida Board of Regents, respectively. At the time this case arose, Petitioner was a student enrolled in the Florida State University College of Law. He received, among other grades, a grade of "F" from Professor Kenneth Vinson in a course in Constitutional Law. Petitioner filed this petition pursuant to Section 120.57, Florida Statutes, challenging that grade.

The Respondent, Florida State University, filed various motions prior to the hearing. Over Respondent's objection, the Hearing Officer held that the assignment of a grade is agency action affecting a substantial interest of a person; however, on other grounds, Respondent's Motion to Dismiss the Complaint was granted with leave to Petitioner to amend. Respondent's Motion to Dismiss the Amended Complaint was granted in part, and counts III, IV, V, and VI of the Amended Petition were dismissed. It was further ordered that paragraphs 7, 11, 13, 15, and 17 through 20 of Count I of the Amended Petitioner were dismissed.

Respondent's Motion to Quash the Subpoena commanding testimony of President Stanley Marshall, the agency head of Respondent, was granted.

The Board of Regents was permitted to join in the proceedings as an intervenor by order of April 26, 1976.

The remaining portions of the pre-hearing motions were denied.

The issue for determination is whether the failing grade received by the Petitioner from Professor Kenneth Vinson was motivated by arbitrariness, capriciousness, or bad faith. The Hearing Officer concluded that Petitioner failed to carry his burden to establish that his grade was based upon arbitrariness, capriciousness, or bad faith.

Pursuant to Section 120.57(1)(b)9, Florida Statutes, I, Stanley Marshall, President of the Florida State University, have reviewed the Recommended Order of the Hearing Officer. In addition, I have reviewed the record in this cause.

It is my opinion that the assignment of a grade by a State University System faculty member is not agency action affecting the substantial interest of a person entitling him to a plenary hearing under the provisions of Section 120.57(1), Florida Statutes. The Motion to Dismiss initially filed by Respondent should have been granted, and this case should not have been heard on its merits. Any further petitions requesting hearings pursuant to Section 120.57, Florida Statutes, to review grades, should be dismissed insofar as they seek jurisdiction under Section 120.57, Florida Statutes.

Inasmuch as this petition was heard on the merits, however, I am willing to enter a final order on the merits on this one case. In arriving at my final order, I have considered all factors, including the findings of fact and conclusions of law set forth in the Hearing Officer's Recommended Order. I adopt her findings of fact and conclusions of law as my own, and they are the basis for my final order that the Petitioner, Stanley C. Kiser, failed to present evidence showing that his failing grade from Professor Vinson was based upon arbitrariness, capriciousness or bad faith. Therefore, the failing grade Petitioner received from Professor Vinson in Constitutional Law 517 - 518 shall stand.

RENDERED this 22nd day of July, 1976.

STANLEY MARSHALL

Stanley Marshall, President

Copies Furnished to:

Mr. Stanley C. Kiser 3220 Jim Lee Road

Tallahassee, Florida 32301

Robert D. Bickel, Esquire University Attorney

Suite 309, Westcott Building Florida State University Tallahassee, Florida 32306

John D. Carlson, Esquire Florida Board of Education

Suite 134, Miles Johnson Building Tallahassee, Florida 32304

Docket for Case No: 76-000440RX

Orders for Case No: 76-000440RX