STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RANDALL O. REDER, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1836RP

)

FLORIDA STATE UNIVERSITY, )

)

Respondent. )

and )

)

FRANKLIN D. GREENMAN, )

)

Intervenor. )

)

FINAL ORDER

The Petitioner and Intervenor jointly challenge, pursuant to Section 120.54(4), Florida Statutes, the practice of the Respondent, Florida State University, of imposing a $25 late registration fee for students who fail to participate in computer-assisted preregistration.

APPEARANCES

For Petitioner: Randall Reder, pro se For Respondent: Robert Bickel , Esquire

For Intervenor: Franklin D. Greenman, pro se

1. This case was presented to the undersigned Hearing Officer by a written Stipulation of facts submitted by the parties. The presentation of live testimony and oral argument was waived by all parties. At issue is the question of whether the fee recently imposed by the university is a rule as defined by Section 120.52(14), F.S. It has been stipulated by all parties that the practice in question has not been formally adopted as a rule pursuant to Chapter 120, F.S. The Petitioner and Intervenor are both currently enrolled law students at Florida State University. The Petitioner Reder had been assessed the $25 late registration fee, but later had the fee waived by the university. Intervenor Greenman was assessed and paid the $25 late registration fee for failing to register during the computer-assisted "preregistration".

   
   

2. The fee in question originated at a meeting of the University's Council for Academic Affairs held on September 7, 1976. This is an advisory body of the University's Academic Administrative Staff. This Council recommended the fee be imposed and the University later adopted the recommendation. Beginning the Fall academic quarter of 1976 the University imposed a $25 late registration fee for all currently enrolled students who failed to register during the computer- assisted registration.

3. The Florida Administrative Code in Chapter 6C-7.03(5) deals with late registration at the state universities, it requires that universities assess a late registration fee against students who fail to initiate registration in the regular registration period . . . ." The rule apparently leaves the amount of the fee subject to the discretion of each university. Rules adopted by Florida State University, the Respondent, appear in Chapter 6C2 of the Florida Administrative Code. Rule 6C2-5.82, Florida Administrative Code, states that the academic calendar establishes the annual deadlines for all matters including deadlines for registration. A copy of the academic calendar for the year 1977-

   78 indicates that late registration begins on September 26, 1977. However, the evidence indicated that the university assessed late fees for students who had registered before this date. It can be seen the academic calendar does not reflect the university's policy for imposing a $25 late registration fee for currently enrolled students who do not participate in the computer-assisted registration.

   
   

4. At issue is whether the University has adopted a rule by virtue of instituting the late registration fee. If the new policy of the University is a rule as defined in Chapter 120, F.S., then it is an invalid rule for it has not been adopted pursuant to law. Straughn v. O'Riordan, 338 So.2d 832 (Fla. 1976). Division of Personnel v. Patricia Harvey, Case No. EE-131 (Fla. 1st DCA Dec. 27, 1977).

   
   

5. The Respondent, Florida State University, objects to the standing of the Petitioner and Intervenor. It alleges that neither of them is substantially affected by the school's policy as required by Section 120.56, F.S. and is therefore not entitled to a determination as to the validity of the school's late registration fee. As enrolled students of the University, both the Petitioner and the Intervenor are subject to paying the late registration fee any time they do not comply with the school's requirement for timely registration. As such they are required to either comply with the school's directive or suffer payment of tie penalty. As such, they are substantially affected and do have standing to maintain this proceeding.

   
   

6. The question of whether an agency practice or policy is a rule may be determined by several criteria. Any agency statement is a rule if it "purports in and of itself to create certain rights and adversely affects others." Dept. of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). Further, an agency statement is a rule if by itself it serves to "create rights, or to require compliance, or otherwise to have the direct and consistent effect of law." McDonnell v. Dept. of Banking and Finance, 346 So.2d 56g (Fla. 1st DCA 1977).

   
   

7. It should be seen that the practice adopted by the Respondent falls within the definition of a rule. The University now requires all currently enrolled students to comply with its new registration policy and to be assessed a $25 penalty should they fail to meet the registration deadline

   
   

8. The University's practice therefore, by itself, has the effect of law and not only requires compliance, but penalizes those who violate the standard imposed. Such matters have always been considered to be of a legislative nature. The totality of the effect of the rule is what the legislature intended to be adopted only through formal rule making proceedings.

   
   

9. The Petitioners have also raised the argument that the Advisory Committee's meeting which proposed the above rule was held in violation of the Sunshine Law because no public notice was given for the meeting. However, in

the opinion of the undersigned an action of an agency is not automatically in violation of Chapter 286, F.S., merely because the body did not advertise their scheduled meeting. Furthermore, in view of the discussion above, it is unnecessary to consider arguments relating to the Sunshine Law since those arguments would only apply in this case when it is decided that the above policy is a rule. Since that question has been answered in the affirmative and since the failure to adopt the rule pursuant to Rule 120 renders it void it is unnecessary to search for a second reason which would only bring the parties to the same conclusion.

It is therefore ORDERED:

That the late registration practice of the Respondent is an invalid rule. DONE and ORDERED this 9th day of January, 1978, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

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

(904) 488-9675

COPIES FURNISHED:

Mr. Randall O. Reder

546 Oakland Avenue Tallahassee, Florida 32301

Franklin D. Greenman

708-1 West St. Augustine Road Tallahassee, Florida

Robert Bickel, Esquire Florida State University

210 Westcott Building Tallahassee, Florida 32306

Docket for Case No: 77-001836RP

Orders for Case No: 77-001836RP