STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOOKER CREEK PRESERVATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-547RX

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

FINAL ORDER

The Petitioner has filed a "Petition to Determine the Invalidity of a Rule" of the Respondent, Department of Environmental Regulation, pursuant to Section 120.56, Florida Statutes. Petitioner is seeking an order declaring the Respondent's policy of requiring parties who wish to take exceptions to the findings of fact set out in a recommended order directed to the Secretary of the Department to provide a transcript of the hearing at the party's expense an invalid exercise of delegated legislative authority. The matter was assigned to the undersigned Hearing Officer by Order entered by the Director of the Division of Administrative Hearings. A final hearing was scheduled on three occasions, and continued each time upon motions. The parties waived the time limitations set out in Section 120.56, Florida Statutes, and were able to resolve the factual issues through a stipulation.

The Respondent has submitted a proposed final order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they have been expressly set out in this Final Order. They have been otherwise rejected as not supported by the evidence, contrary to law, or not relevant to the issues.

FINDINGS OF FACT

1. The parties have resolved the factual issues through a stipulation. A copy of the stipulation is appended to this Final Order, and constitutes findings of fact for the purposes of this proceeding. In summary, the facts are that the Respondent refers requests for formal administrative hearings that are submitted to it to the Division of Administrative Hearings. Formal hearings are conducted by the Division of Administrative Hearings, culminating in entry of recommended orders directed to the Secretary of the Department. The Department records the hearings on tape recording equipment. Tapes of the hearings are routinely made available to the parties. The Department has a policy of rejecting any exceptions to the findings of fact set out in a recommended order unless the objecting party submits a complete transcript of the hearing at that party's expense. The Respondent's practice is to allow parties to utilize tapes of the final hearing so that the party can prepare a transcript from the tapes. The Department accepts any notarized transcript prepared from the tapes as a transcript of the hearing.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.56, Florida Statutes.

   
   

3. Petitioner contends that the Respondent's policy respecting preparation of transcripts constitutes a rule which has not been properly promulgated, and is therefore an invalid exercise of delegated legislative authority. Department of Administration v. Harvey, 356 So.2d 323 (1 DCA Fla. 1977). This contention is without merit. An agency cannot reject or modify the findings of fact set out in a recommended order "unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence . . ." Section 120.57(1)(b)9, Florida Statutes. The complete record includes the "official transcript" of the final hearing. Section 120.57(1)(b)5, Florida Statutes. An agency's responsibilities with respect to a transcript are statutorily provided at Section 120.57(1)(b)6, Florida Statutes, as follows:

   
   

   The agency shall accurately and completely preserve all testimony in the proceeding, and, on the request of any party, it

   shall make a full or partial transcript available at no more than actual cost.

   
   

   In pursuance of these statutory mandates, the Respondent has adopted Rule 17- 1.64(3), Florida Administrative Code. The rule provides that the Respondent will provide recording tapes to any party so that a transcript can be made from the tapes, and that any party who takes exception to a finding of fact set out in a recommended order "may need to ensure that a verbatim record of the proceedings is made." The Respondent's practices as set out in the stipulation are consistent with the provisions of Section 120.57(1)(b), and Rule 17-1.64(3). The Respondent's practices include some refinements of the statute and rule.

   This may render further rule making desirable, but it does not mandate it.

   
   

4. Petitioner has contended that even if properly promulgated as a rule, the Department's policy constitutes a denial of due process of law because it prevents a party unable to pay for a transcript from taking exceptions to the findings of fact set out in the recommended order. This contention is without merit. The Administrative procedure Act provides only that an agency must make a transcript available to a party "at no more than actual cost." Section 120.57(1)(b)6, Florida Statutes. There has been no contention that the Respondent's policy imposes more than actual cost upon preparation of a transcript. Indeed, it appears that the policy allows parties to prepare a transcript through their own efforts and thus to incur only insubstantial costs.

   
   

5. In Harrell v. Department of Health and Rehabilitative Services, 361 So.2d 715 (4 DCA Fla. 1978), the Court held that rules which set fees for the preparation of transcripts for the purposes of taking appeals from administrative action without any mechanism to permit persons unable to pay the costs to have the transcript prepared are not constitutionally infirm. Thus, even if the Respondent's policy actually operated to deprive the Petitioner of its ability to raise issues before the agency head, it does not appear that the policy would be constitutionally impermissible. In any event, it is beyond the authority of a Hearing Officer of the Division of Administrative Hearings to consider the constitutionality of an existing rule. Department of Environmental Regulation v. Leon County, 344 So2d 297, 298 (1 DCA Fla. 1977).

FINAL ORDER

Based on the foregoing findings of fact and conclusions of law, it is hereby,

ORDERED:

The Petitioner has failed to establish that the policy of the Department of Environmental Regulation respecting preparation of transcripts of formal proceedings constitutes an invalid exercise of delegated legislative authority, and the Petition to Determine the Invalidity of a Rule is accordingly dismissed.

DONE AND ORDERED this 18th day of June, 1981, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1981.

COPIES FURNISHED:

Mr. Peter B. Belmont Vice President

Booker Creek Preservation, Inc.

434 Williams Street Tallahassee, Florida 32303

Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Carroll Webb, Esquire Executive Director

Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301

Ms. Liz Cloud, Chief

Bureau of Administrative Code Department of State

1802 The Capitol

Tallahassee, Florida 32301

APPENDIX TO FINAL ORDER

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOOKER CREEK PRESERVATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-547RX

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

STIPULATION

This Stipulation applies only to the case of Booker Creek Preservation, Inc. v. Department of Environmental Regulation, DOAH Case No. 81-547RX, and is not an admission for the purposes of any other administrative or judicial proceeding. Petitioner and Respondent stipulate as follows:

1. When a party files exceptions to a recommended order's findings of fact, the Department considers whether, on their face, the exceptions conflict with the recommended findings of fact, such that a complete record must be reviewed by the Department in order for the Department to rule upon the merits of the exceptions.

   
   

2. The Department has always rejected and will continue to reject exceptions to findings of fact which conflict with the findings of the recommended order if a complete record, including a complete transcript of the proceedings, is not provided to the Department by a party or any other person or entity. The Department has always rejected and will continue to reject exceptions if, subsequent to a review of the complete record, including a transcript, the Department finds that the hearing officer's findings were based upon competent and substantial evidence.

   
   

3. Booker Creek Preservation, Inc., has standing to maintain this proceeding.

   
   

4. Booker Creek Preservation, Inc. is financially unable to purchase transcripts from or provide a court reporter in each case in which they may file exceptions.

   
   

5. The Department refers approximately 250 petitions for administrative hearings pursuant to Section 120.57(1), Florida Statutes, to the Division of Administrative Hearings each year. Hearings held as a result of these petitions range in length from one day to three weeks. The Department refers all requests for administrative hearings pursuant to Section 120.57(1) to the Division of Administrative Hearings.

6. The Department is financially unable to purchase transcripts of each hearing or to provide a court reporter for each hearing. The Department employs no court reporters.

   
   

7. The Department records all hearings on tape where no party has hired a court reporter to record the proceedings. The Department routinely makes these tapes available to any party, and will accept any notarized transcript prepared from the tapes. It is not necessary that such a transcript be prepared by a court reporter. A party may find it less expensive to provide a transcript prepared from a tape rather than purchasing a transcript from a court reporter. The Department will make arrangements for a court order transcripts or arrange to have transcripts prepared from tapes, if the party requesting a court reporter or transcripts provides a guarantee of payment for such services.

   
   

8. The Department's current practice is to notify all parties of its practice with respect to court reporters, the recordation of hearings, the availability of tapes and transcripts, and the possible necessity of providing a transcript if exceptions are filed.

   
   

9. Because of time constraints, it is most efficient for the Secretary of the Department to review transcripts of a hearing in order to rule on exceptions to findings of fact. It is the Department's position that, because of demands on the Secretary's time, it is impossible for the Secretary to listen to tapes of a hearing to rule on exceptions to findings of fact.

   
   

10. The Department's practice with respect to review of exceptions as described herein is reflected in the Final Orders listed on Exhibit "A", which is attached hereto. These orders are made a part hereof by reference.

    
    

11. Booker Creek Preservation, Inc.'s only source of income is from persons interested in the goals of the organization.

    
    

12. In instances where a court reporter records a hearing, the Model Rules of Administrative Procedure would preclude Booker Creek Preservation, Inc. from providing and the Department from considering a transcript prepared from tapes of the proceeding. It is the Department's practice to comply with the Model Rules.

AGREED to on this 12th day of May 1981.

BOOKER CREEK PRESERVATION, INC. STATE OF FLORIDA, DEPARTMENT

OF ENVIRONMENTAL REGULATION

PETER BELMONT PAUL R. EZATOFF, JR.

Vice President Assistant General Counsel

434 Williams Street 2600 Blair Stone Road Tallahassee, Florida 32303 Tallahassee, Florida 32301 For Petitioner For Respondent

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original and one true copy of the foregoing STIPULATION has been furnished by U.S. Mail to G. STEVEN PFEIFFER, Hearing Officer, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301 and a true copy of the same to PETER BELMONT, Vice President, Booker Creek Preservation, Inc., 434 Williams Street, Tallahassee, Florida 32303 on this day of May, 1981.

PAUL R. EZATOFF, JR.

Assistant General Counsel EXHIBIT A

CASES IN WHICH EXCEPTIONS HAVE BEEN REJECTED BECAUSE OF LACK OF TRANSCRIPT

1. St. Teresa Dock Association, Inc. and H. S. Oven v. Department of Environmental Regulation and Lomax Smith, et al., DOAH Case No. 78-2246 (Final Order entered January 5, 1980)

   
   

2. Booker Creek Preservation, Inc. v. Department of Environmental Regulation, DOAH Case No. 79-1667 (Final Order entered January 24, 1980)

   
   

3. Isles of Capri Civic Association v. Department of Environmental Regulation and Williams Capri Marine, Inc., DOAH Case No. 79-2415 (Final Order entered April 11, 1980)

   
   

4. Department of Environmental Regulation v. J. David Wood and Diane C. Wood and Ray E. Dugan, DOAH Case No. 79-790 (Final Order entered April 22, 1980)

   
   

5. Jackson v. Indian River County Board of County Commissioners and Department of Environmental Regulation, DOAH Case No. 79-2193 (Final Order entered April 28, 1980)

   
   

6. Keely v. Harriet Stokes and Department of Environmental Regulation, DOAH Case No. 78-2224 (Final Order entered June 4, 1980)

   
   

7. Department of Environmental Regulation v. Gunard C. Brautcheck, Sr., DOAH Case No. 80-810 (Final Order entered November 5, 1980)

   
   

8. City of Venice, Florida v. Department of Environmental Regulation and ARCJ Land Investments, Ltd., DOAH Case No. 80-920 (Final Order entered November 7, 1980)

   
   

9. Marshall v. Department of Environmental Regulation, Horseshoe Cove Resort, Inc., H. C. Green and Joseph F. Garrott, DOAH Case Nos. 79-2210 and 80-

   175 (Final Order entered November 17, 1980)

   
   

10. Alford, et al. v. Department of Environmental Regulation and Bay County Board of County Commissioners, DOAH Case No. 80-1123 (Final Order entered December 22, 1980)

11. Wood, Campbill, Miller, et al. v. The Deltona Corporation and Department of Environmental Regulation, DOAH Case No. 80-961 (Final Order entered January 6, 1981)

    
    

12. Leon County v. Department of Environmental Regulation and Maryland Realty Trust, DOAH Case No. 80-2061 (Final Order entered April 7, 1981)

Docket for Case No: 81-000547RX

Orders for Case No: 81-000547RX