STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD A. DARLING )

)

Petitioner, )

)

vs. ) CASE NO. 85-0096RP

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

HEARING AID SPECIALISTS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William

1. Thomas, held a formal hearing in this case on March 5, 1985, in Tallahassee, Florida.

   
   

   APPEARANCES

   
   

   FOR PETITIONER: Richard A. Darling, in pro per.

   Post Office Box 127 Tallahassee, Florida 32302

   
   

   FOR RESPONDENT: Randall A. Holland, Esquire

   Room 1601, The Capitol Tallahassee, Florida 32301

   
   

   By Petition dated January 10, 1985, Richard A. Darling challenges the Respondent's proposed Rules 21JJ-1.1 and 21JJ-1.12, Florida Administrative Code, contending that these rules constitute invalid exercises of delegated legislative authority. The petition was filed under the provisions of Section 120.54(4), Florida Statutes. 1/ No testimony was presented at the hearing. Thereafter, the parties submitted proposed findings of fact and conclusions of law, which have been considered. Where not adopted and incorporated herein, they were found to be subordinate, cumulative, immaterial or unnecessary, and have been

   rejected. Nevertheless, a ruling has been made on each either directly or indirectly.

   FINDINGS OF FACT

   
   

   1. The Petitioner has standing to challenge the proposed rules. He is a licensed Hearing Aid Specialist holding license number 34804-69 issued by the Respondent.

      
      

   2. On December 28, 1984, the Board of Hearing Aid Specialists noticed its intent to adopt Rules 21JJ-1.11 and 21JJ-1.12 by providing notice in Volume 10, Number 52 of the Florida Administrative Weekly.

   3. These Rules as proposed read as follows: 21JJ-1.11 Designation of Official Reporter.

      Council designates PSC Professional Services, Inc. Publishers of the Florida Administrative Law Reports (FALR) , as its official reporter for the purposes of publishing and indexing

      by subject matter all orders rendered after a proceeding which affects substantial interests has been held.

      
      

      21JJ-1.12 Conducting Meetings, Hearings, and Workshops by Communications Media Technology. The Council will follow and apply Rule Chapter 28-8, Florida Administrative Code, for conducting meetings, hearings, and work- shops by means of communications media tech- nology except when otherwise explicitly pro- vided by rule. One exception shall be that the time frame for notice of such meetings, hearings, and workshops shall be seven (7) days in advance.

      
      

   4. An economic impact statement was filed pursuant to 120.54(2)(a), Florida Statutes. No evidence was presented to demonstrate that this economic impact statement was inaccurate or that the fairness of this hearing was impaired thereby.

      
      

      CONCLUSIONS OF LAW

      
      

      RULE 21JJ-1.12, FLORIDA ADMINISTRATIVE CODE

      
      

   5. Section 120.53(6), Florida Statutes, provides: Each state agency, as defined in s. 216.011,

      shall adopt rules providing a procedure for conducting meetings, hearings, and workshops, and for taking evidence, testimony, and argument at such meetings, hearings, and workshops, by means of communications media technology. The rules shall provide that all evidence, testimony, and argument presented shall be afforded equal consideration, regardless of the method of communication.

      If a meeting, hearing, or workshop is to be conducted by means of communications media technology, or if attendance may be provided by such means, the notice shall so state.

      The notice for meetings, hearings, and workshops utilizing communications media technology shall state how persons interested in attending may do so and shall name locations, if any, where communications media technology facilities will be available.

      Nothing in this subsection shall be construed to diminish the public's right to inspect public records under chapter 119. Limiting points of access to meetings, hearings, and workshops subject to the provisions of s.

      286.011 to places not normally open to the public shall be presumed to violate the right of access of the public, and any official action taken under such circumstances is void and of no effect. Other laws relating to public meetings, hearings, and workshops, including penal and remedial provisions, shall apply to meetings, hearings, and workshops conducted by means of communications media technology, and shall be liberally construed in their applications to such meetings, hearings, and workshops.

      
      

   6. Section 120.54(10), Florida Statutes, provides:

      
      

      The Administration Commission shall promulgate one or more sets of model rules of procedure which shall be reviewed by the committee and filed with the Department of State. On filing with the department, the appropriate model rules shall be the rules of procedure for each agency subject to this act to the extent that each agency does not adopt a specific rule of

      procedure covering the subject matter contained in the model rules applicable to that agency. . . .

      
      

   7. The CMT (Communications Media Technology) statute is a part of the Administrative Procedure Act and, as such, deals with matters procedural in nature (e.g. conducting meetings receiving evidence). It is related to Section 120.53(1)(d), Florida Statutes, a part of the original 1974 Administrative Procedure Act, which requires agencies to adopt rules for the scheduling of meetings, hearings and workshops.

      
      

   8. The Petitioner contends that the Respondent is without authority to adopt a model rule of procedure on CMT. However, Section 120.53(6), Florida Statutes, requires such state agency to adopt rules providing a procedure for conducting meetings by means of communications media technology. Further, Section 120.54(10), Florida Statutes, requires the Administration Commission to promulgate model rules of procedure.

      
      

   9. Where state agencies are required by statute to adopt rules of procedure, the adoption of model rules is appropriate. Section 120.54(10), Florida Statutes, provides that the model rules of procedure become the rules of each agency when the agency does not adopt specific rules covering the subject matter. Since the model rules automatically become she rules of each agency, the only effect of Rule 21JJ-1.12 is to shorten the required time for notice of a meeting. Section 120.54(1)(d), Florida Statutes, provides that ". . . notice shall include a statement of the general subject matter to be considered and shall be given not less than 7 days before the event." Pursuant to Section 120.54(10), Florida Statutes, the Board of Hearing Aid Specialists has adopted a specific rule covering the subject of notice, and this specific rule comports with the requirement of 120.53(1)(d), Florida Statutes.

      
      

   10. The Petitioner also contends that the proposed rule is contrary to the Government in the Sunshine Law, Section 286.011, Florida Statutes, which provides in subsection (1) that:

       
       

       All meetings of any board or commission of any state agency or authority or of any

       agency or authority of any county, munici- pal corporation, or political subdivision, except as otherwise provided in the Consti- tution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule or formal action shall be considered binding except as taken or made at such meeting.

       
       

   11. The Petitioner argues that, insofar as the proposed rule would permit agencies to meet electronically rather than physically, it deprives him as a member of the public from being able to attend these meetings. However, the proposed rule does not "permit" an agency to meet electronically. The proposed rule only establishes procedures to be followed if the Board of Hearing Aid Specialists chooses to meet by means of communications media technology. Moreover, unless the Board of Hearing Aid Specialists has the authority to meet electronically, the directive of Section 120.53(6), Florida Statutes, to adopt procedures for such meetings would make no sense.

       
       

   12. The Petitioner alleges that the proposed rule violates the Sunshine Law, violates rights of free speech, and should recognize the public's right to address a public agency. 2/ However, these arguments are not relevant to this proceeding because the proposed adoption of Rule 21JJ- 1.12, Florida Administrative Code, does not relate to the Sunshine Law, free speech, or rights to address a public agency. The only effect the proposed rule would have is to shorten the notice time prescribed in the Model Rule.

       
       

   13. The Petitioner has also challenged the Respondent's Economic Impact Statement (EIS). However, no evidence was presented to demonstrate any inadequacies of the EIS. Since the only effect of Rule 21JJ-1.12, Florida Administrative Code, would be to shorten the notice period, it would have no economic impact. Further, there is no evidence to show that the fairness of these proceedings was impaired by the absence of an EIS. See Department of Health and Rehabilitative Services v. Wright, 439 So.2d, 937, 940 (Fla. 1st DCA 1983).

       
       

       CONCLUSIONS OF LAW

       
       

       RULE 21JJ-1.11, FLORIDA ADMINISTRATIVE CODE

       
       

   14. The Proposed Rule 21JJ-1.11 designates the Florida Administrative Law Reports (FALR) as the Board of Hearing Aid Specialists official reporter for the purposes of publishing and indexing its orders.

       
       

   15. Section 120.53(4), Florida Statutes, provides:

       
       

       (4) An agency may . . . [designate] by rule an official reporter which publishes and indexes by subject matter each agency order rendered after a proceeding which affects substantial interests has been held.

       
       

   16. The Petitioner presented no evidence to support a finding that the particular publisher designated by the Respondent should not be used.

       
       

   17. The Respondent has express statutory authority pursuant to Section 120.53(4), Florida Statutes, to designate an official reporter. Therefore, the proposed rule is valid.

FINAL ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that the Petitioner, Richard A. Darling, has failed to establish that the Respondent's proposed Rules 21JJ-1.11 and 21JJ-1.12 as set forth above constitute an invalid exercise of delegated legislative authority, and the Petition is DISMISSED.

THIS FINAL ORDER entered this 5th day of April, 1985, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

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 5th day of April, 1985.

ENDNOTES

1/ Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rules is an invalid exercise of delegated legislative authority.

2/ The Petitioner's challenge of Model Rule 28-8, Florida Administrative Code, on these grounds was resolved against him (DOAH Case NO. 84-1088R, Final Order filed June 12, 1984).

COPIES FURNISHED:

Richard A. Darling Post Office Box 127

Tallahassee, Florida 32302

Randall A. Holland, Esquire Room 1601,

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedure Committee

120 Holland Building Tallahassee, Florida 32301

Sal Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Marcelle Flanagan Executive Director

Board of Hearing Aid Specialists Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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 Division of Administrative Hearings and a second copy, Accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 85-000096

Orders for Case No: 85-000096