STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROCKWELL UNIVERSITY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 79-2054RX

) STATE OF FLORIDA, STATE BOARD OF ) INDEPENDENT COLLEGES AND )

UNIVERSITIES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on November 20, 1979, at 10:00 A.M. in the Collins Building, Tallahassee, Florida. The issue for determination at the hearing was whether respondent's Rule 6E- 2.04, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.

APPEARANCES

For Petitioner: Sidney L. Matthew

Post Office Box 10064 Tallahassee, Florida 32302

For Respondent: James D. Little, General Counsel

State Board of Education, Knott Building Tallahassee, Florida 32301

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The respondent is an independent board attached to the Department of Education. It began its operations in 1972. Among its duties and responsibilities is the licensure of certain nonpublic colleges and the promulgation of rules containing minimum educational standards for the licensing of such colleges.

   
   

2. The rule being challenged herein, Rule 6E-2.04, sets forth the minimum standards for licensure. These standards relate to the purpose of the institution, administrative organization, educational program and curricula, finances, faculty, library, student personnel services, physical plant and facilities, publications and required disclosure statements regarding the status of the institution in relation to professional certification and licensure. The Rule further provides that

   "It is recognized by the state board of independent colleges and universities that these minimum standards may not be equally applicable to every institution applying for a license."

   
   

   A substantially similar rule has been in effect since the respondent began its operations in 1972.

   
   

3. It was the testimony of respondent's executive director, Dr. C. Wayne Freeberg, that the standards and criteria set forth in Rule 6E-2.04 are uniformly applied to all applicants. The prime inquiry of the respondent is whether the applicant has provided concrete documentation that the institution meets the standards set forth in the rule, even if they be met in a non- traditional manner. The respondent seeks to apply the rule uniformly to both traditional and nontraditional institutions.

   
   

4. The petitioner is a profit-oriented, private corporation whose purpose is to provide educational services in a graduate dimension using a nontraditional delivery method. It applied to the respondent for licensure pursuant to Florida Statutes, Chapter 246. By letter dated September 26, 1979, petitioner was notified that its application for licensure had been denied by the respondent for failure to meet certain standards contained in Rule 6E-2.04. The deficiencies noted were in the areas of curricula, faculty and library.

   
   

5. Subsequent to the denial of its application for licensure, petitioner filed the instant petition challenging the validity of Rule 6E-2.04, pursuant to Florida Statutes, 120.56. Petitioner has also requested and been granted an administrative hearing pursuant to Florida Statutes, 120.57(1), concerning the denial of its application for licensure.

   
   

   CONCLUSIONS OF LAW

   
   

6. The parties have stipulated and the facts adduced at the hearing clearly support the conclusion that the petitioner is substantially affected by challenged Rule 6E-2.04, Florida Administrative Code.

   
   

7. In support of its contention of invalidity, petitioner alleges that the challenged rule permits too much discretion on the part of the respondent, it lacks objective standards and guidelines, it permits the standards to be applied in an unequal fashion to applicants and it conflicts with the statutory purposes of Chapter 246, Florida Statutes, to promote private institutions within the State while protecting consumers from fraud in the acquisition of an adequate education. It is the conclusion of the undersigned that the petitioner has failed to demonstrate that Rule 6E-2.04 constitutes an invalid exercise of delegated legislative authority.

   
   

8. The application of the rule by respondent to the petitioner's application for licensure is not at issue in the instant Proceeding. That is the subject of a separate Florida Statutes, 120.57(1) proceeding presently pending before the respondent.

   
   

9. The petitioner's concern relating to potential unequal or nonuniform application of the rule by respondent is not a basis for invalidating the rule. First, the testimony established that the rule is interpreted and implemented to provide a uniform application in all instances. Second, a party substantially affected by inconsistent or unequal application of a rule or policy of an agency

   is afforded a remedy via Section 120.57(1), Florida Statutes. The petitioner has failed to illustrate that the standards contained in the rule are not reasonably related to the licensure of private educational institutions or are not capable of being applied in a reasonable manner by respondent.

   
   

10. Finally, the petitioner has failed to demonstrate that the rule does violence to legislative intent or that its contents are vague, arbitrary or capricious. The rule finds ample legislative authority in Florida Statutes,

246.051. Subsection (1) of that statute provides the respondent with the power and authority to prescribe and execute minimum standards concerning the operation and establishment of non-public colleges. Subsection (2) of 246.051 specifically enumerates the subject matters to be included in the minimum educational standards adopted by the Board. The items for inclusion listed in the statute follow precisely the standards listed in the challenged rule. With little modification, the rule has been in effect since the Board began its operation in 1972. The 1976 amendments to Chapter 246 clearly illustrate legislative approval of the rule's contents and the respondent's long administrative interpretation.

FINAL ORDER

Petitioner having failed to present sufficient evidence that Rule 6E-2.04, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority,

IT IS ORDERED THAT the petition filed pursuant to Florida Statutes, 120.56 challenging that rule is DISMISSED.

Entered and ordered this 20th day of December, 1979, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Sidney L. Matthew Post Office Box 10064

Tallahassee, Florida 32302

James D. Little General Counsel

State Board of Education Knott Building

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 Capitol Building

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32304

Docket for Case No: 79-002054RX

Orders for Case No: 79-002054RX