STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HUBBARD CONSTRUCTION COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3903RU

)

ORLANDO-ORANGE COUNTY )

EXPRESSWAY AUTHORITY, )

)

Respondent. )

)

FINAL ORDER

After assignment to Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, this case was decided without an evidentiary hearing.

APPEARANCES

For Petitioner: Mary M. Piccard

F. Alan Cummings

Cummings, Lawrence & Vezina, P.A. Post Office Box 589

Tallahassee, Florida 32302-0589

For Respondent: Michael P. McMahon

Martha J. Edenfield

Akerman, Senterfitt & Eidson, P.A. Post Office Box 231

Orlando, Florida 32801 STATEMENT OF THE ISSUE

The issues in this case are whether Respondent is an agency subject to the requirements of Chapter 120, Florida Statutes, and, if so, whether the Department of Transportation Standard Specifications for Road and Bridge Construction, 1991 edition, is a rule within the meaning of 120.52(16), Florida Statutes, when incorporated into two construction contracts between Petitioner and Respondent; and whether a July 11, 1995, letter from Respondent to Petitioner regarding a suspension or disqualification hearing is a rule within the meaning of 120.52(16).

PRELIMINARY STATEMENT

On August 7, 1995, Petitioner filed a Request for Administrative Determination of the Invalidity of a Rule of the Orlando-Orange County Expressway Authority. Petitioner alleged that Respondent made statements that were rules without following the rulemaking provisions of Chapter 120, Florida Statutes.

Following the cancellation of the final hearing set for October 5, 1995, due to Hurricane Opal, the parties conducted a prehearing conference by telephone on October 5, 1995. During the conference, the hearing officer suggested that there were no genuine issues of material fact and the legal disputes between the parties could be adjudicated without an evidentiary hearing. The hearing officer gave each party an opportunity to file evidentiary materials, such as affidavits, and proposed final orders.

After reviewing the record, including all materials filed after the prehearing conference, there are no genuine issues of material fact, and the issues may be adjudicated without an evidentiary hearing.

The findings of fact are drawn entirely from Respondent's proposed final order. All of Respondent's proposed findings are incorporated in the findings of fact, except for some minor portions that are subordinate, unnecessary, or irrelevant. The proposed findings of Petitioner that are not in the findings of fact have been rejected as subordinate, unnecessary, and irrelevant.

FINDINGS OF FACT

1. The Legislature created Respondent in 1963 by enacting Chapter 63-573, Laws of Florida, codified as Chapter 348, Part V, Florida Statutes. Section 348.754(1)(a) authorizes Respondent to construct, maintain, and operate the Orlando-Orange County Expressway System.

   
   

2. Petitioner constructs highways. In 1991, Respondent awarded Petitioner with two highway construction contracts. The two construction contracts incorporate by reference the 1991 edition of the Florida Department of Transportation Standard Specifications for Road and Bridge Construction ("Gray Book"). Commonly used in Florida highway construction, especially on state projects, the Gray Book is a code of standards for road and bridge construction projects.

   
   

3. In 1993 and 1994, Petitioner requested $5 million from Respondent in extra compensation for the two construction contracts. In reviewing the requests, Respondent asked Petitioner for various documents, claiming that Article 3-8 of the Gray Book entitled Petitioner to receive these documents for audit.

   
   

4. Article 3-8 of the Gray Book states:

   
   

   Upon execution of the Contract, [Respondent] reserves the right to conduct any necessary audit of the Contractor's records pertaining to the project. Such an audit, or audits, may be conducted by [Respondent] or its representatives at any time prior to final payment, or thereafter pursuant to 5/13. [Respondent] may also require submittal of the records from either the Prime Contractor, the Subcontractor or both. For the purpose of this Article, records shall include all books of account, supporting documents and papers deemed necessary by [Respondent] to

   assure compliance with the contract provisions.

   Failure of the Contractor or Subcontractor to comply with these requirements may result in disqualification or suspension from bidding for future contracts or disapproval as a Subcontractor at the option of [Respondent].

   
   

   The Contractor shall assure that his Subcon- tractor will provide access to his records pertaining to the project upon request by [Respondent].

   
   

5. Petitioner declined to give Respondent audit access to all the requested records, taking the position that the records were not necessary and that Article 3-8 did not give Respondent the access to records claimed by Respondent.

   
   

6. By letter dated July 11, 1995, Respondent notified Petitioner that it intended to consider whether to suspend or disqualify Petitioner from participating in future public bidding on Respondent's construction contracts.

   The letter advised that Respondent would hold a public hearing

   
   

   to consider the facts and circumstances of [Petitioner's] failure to provide contract documents requested by [Respondent]. At the hearing the Board will decide whether to suspend or disqualify [Petitioner] for its failure to comply with the Contract."

   
   

7. The July 11 letter informed Respondent that it had the right to be represented by counsel, to present oral and written evidence, to cross-examine witnesses, and to present rebuttal evidence. The letter prohibited ex parte communications with members of Respondent's board because they would be acting in a quasi-judicial capacity.

   
   

8. The Orlando-Orange County Expressway System consists of about 81 miles of multi-lane limited access highway in Orange County. Respondent's offices are in Orange County, which is where its employees work.

   
   

9. Respondent establishes its own annual budget and sets tolls without review by the Legislature or Department of Transportation. Respondent compensates its employees without regard to State of Florida personnel policies or guidelines. Respondent's employees do not receive State of Florida health insurance benefits. They receive health insurance through the Orange County group health policy that covers all otherwise- covered Orange County employees.

   
   

10. Transportation issues involve frequent contact between Respondent's employees and employees of the Public Works Department of Orange County and the City of Orlando. Contact between Respondent and the governments in and of surrounding counties is largely limited to participation in the Greater Orlando Metropolitan Planning Organization. In general, Respondent engages in transportation planning for, and studies the transportation needs of, Orange County, but not other counties.

    
    

11. In 1994 the Legislature enacted Chapter 94-237, Laws of Florida. Section 11 of Chapter 94-237 created 348.7545, Florida Statutes (1994 Supp.), which authorized Respondent

    to construct, finance, operate and maintain that portion of the Western Beltway known as the Western Beltway Part C, extending from Florida's Turnpike near Ocoee in Orange County southerly through Orange and Osceola Counties to an interchange with I-4 near the Osceola-Polk County line . . ..

    
    

12. Chapter 94-237, Laws of Florida, did not expressly authorize Respondent to exercise powers of eminent domain in Osceola County. In 1995 the Legislature enacted Chapter 95-257, Laws of Florida. Section 61 of Chapter 95-

    257 amended 348.7545 to allow expressly Respondent to use its eminent domain power in connection with the Western Beltway Part C.

    
    

13. Not considering itself an agency subject to Chapter 120, Florida Statutes, Respondent has not complied with any requirements of Chapter 120 except for the adoption of rules governing bid protests, as provided by 120.53(5). Respondent has not adopted as rules pre-qualification procedures and requirements, disqualification and suspension procedures and provisions, or procedures for formal hearings. Respondent has adopted various rules and policies, but not in accordance with Chapter 120. As far as it is aware, Respondent has not previously considered whether to suspend or disqualify a contractor, and therefore Respondent issued the July 11 letter on an ad hoc basis.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter. Sections 120.535 and 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

15. Section 120.52(1)(b) defines "agency" to include:

    
    

    each state department, departmental unit described in s. 20.04, commission, regional planning agency, board, district, and authority, including, but not limited to, those described in chapters 163, 298, 373, 380, and 582 and s.

    186.504, except any legal entity or agency created in whole or in part pursuant to chapter 361, part II.

    
    

16. In addressing this definition of "agency," the courts have examined closely the geographic scope of a governmental body to determine if it is a "state agency" or a unit of local government. In Booker Creek Preservation, Inc. v. Pinellas Planning Council, 433 So. 2d 1306 (Fla. 2d DCA 1983), the court affirmed a hearing officer's conclusion that the planning council was a unit of local government not subject to Chapter 120. The court noted that the Legislature created the planning council for "intracounty and intercounty coordination of county planning activities" and later added responsibilities for local land-use planning.

    
    

17. Holding that the Pinellas Planning Council was not a state agency under 120.52(1)(b), the Booker Creek court reasoned: "Because the [planning council] operates entirely within Pinellas County and has no authority outside that county, it is not comparable in jurisdiction to a statewide agency or even

    a regional, intercounty agency." 433 So. 2d at 1308. The court also noted that the planning agency had been created by a special act of the Legislature.

    
    

18. The Second District followed the Booker Creek approach in Rubinstein

    v. Sarasota County Public Hospital Board, 498 So. 2d 1012 (Fla. 2d DCA 1986) (per curiam). Holding that the hospital board, whose jurisdiction did not extent beyond one county, was not a state agency under 120.52(1)(b), the Rubinstein court read the Booker Creek decision as a rejection of the "'functional' argument in favor of an approach geared more toward the territorial jurisdiction of the body in question." 498 So. 2d at 1014.

    
    

19. Respondent implies in its proposed final order that the Second District's emphasis on territorial jurisdiction might not be, or might later prove not to be, the approach of other district courts. But Respondent would find no solace in a more functional approach to applying 120.52(1)(b). As it happens, the Supreme Court has considered the extra-local functions of Respondent in Pepin v. Division of Bond Finance, 493 So. 2d 1013 (Fla. 1986). Dealing with a bond issue for an entirely intracounty expansion of the expressway system, the Pepin Court analyzed the crucial role of Respondent in planning and constructing key part of an "integrated and balanced statewide transportation system" and concluded that the bond challenger had failed to prove that expressway expansion would not "serve a public purpose and benefit the citizens of Florida in general and the residents of Orange County in particular." 493 So. 2d at 1014.

    
    

20. Under the territorial approach, Respondent was a state agency under 120.52(1)(b) when the Legislature conferred upon it the rights to condemn land and construct road outside of Orange County. Under the functional approach, Respondent probably would have been a state agency prior to its acquisition of such extracounty powers.

    
    

21. Section 120.52(16) defines a "rule" as:

    
    

    each agency statement of general applicability that implements, interprets, or prescribes law of policy or describes the organization, procedure, or practice requirements of any agency and includes any form which imposes

    any requirement or solicits any information not specifically required by statute or by an existing rule. . . .

    
    

22. The Gray Book, including Article 3-8, applies to parties only after it has been incorporated into a contract. Thus, Article 3-8 is not "generally applicable" because it is not, in the words of the court in McDonald v. Department of Banking and Finance, 346 So. 2d 569, 581 (Fla. 1st DCA 1977) a statement that is "intended by [its] own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law."

    Based on this reasoning, two courts have consequently held that the Standard Specification for Road and Bridge Construction of the Department of Transportation does not constitute a rule when incorporated by reference into construction contracts. Department of Transportation v. Blackhawk Quarry Company of Florida, Inc., 528 So. 2d 447 (Fla. 5th DCA), rev. den. 536 So. 2d

    243 (Fla. 1988) and San Marco Contracting Company v. Department of Transportation, 386 So. 2d 615 (Fla. 1st DCA 1980).

23. Thus, even though Respondent is a state agency under 120.52(1)(b), it was not required to adopt as a rule Article 3- 8 from the Gray Book as long as Article 3-8 was incorporated into a construction contract.

    
    

24. The July 11, 1995, letter is a rule because it purports to "describe.

    . . the . . . procedure . . . of an agency." The letter describes procedural rights, such as the rights to cross- examine witness and present rebuttal evidence. But Respondent never adopted the procedural provisions set forth in the letter with the formalities required by Chapter 120.

    
    

25. Section 120.535(1) requires that state agencies, such as Respondent, engage in rulemaking "as soon as feasible and practicable." "Feasible" and "practicable" are terms of art, whose definitions acknowledge certain defenses available to state agencies. Wisely, Respondent has not attempted to take advantage of such defenses to a claim that it must engage in rulemaking of mere rules of procedure to govern a disqualification or suspension hearing of a contractor. Section 120.53(1)(b) and (c) requires agencies to adopt procedural and evidentiary rules, and Respondent would be hard put to explain why it could not do so at this time.

ORDER

It is

ORDERED that:

1. The Orlando-Orange County Expressway Authority is a state agency under 120.52(1)(b).

   
   

2. Article 3-8, which is part of the Gray Book that was incorporated into two construction contracts between the parties, is not a rule.

   
   

3. The July 11, 1995, letter from Respondent to Petitioner is a description of procedural provisions and, as such, is a rule. The letter violates 120.535(1), Florida Statutes.

   
   

4. Petitioner's request for oral argument, which was filed with its proposed final order, is denied.

   
   

   ENTERED on November 7, 1995, in Tallahassee, Florida.

   
   

   
   

   ROBERT E. MEALE

   Hearing Officer

   Division of Administrative Hearings The DeSoto Building

   1230 Apalachee Parkway

   Tallahassee, Florida 32399-1550

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings on November 7, 1995.

   COPIES FURNISHED:

   
   

   Harold W. Worrall, Executive Director Orlando-Orange County Expressway Authority

   525 South Magnolia Avenue Orlando, FL 32801-4414

   
   

   Mary M. Piccard

   F. Alan Cummings

   Cummings, Lawrence & Vezina, P.A.

   P.O. Box 589

   Tallahassee, FL 32302-0589

   
   

   Michael P. McMahon Martha J. Edenfield

   Akerman, Senterfitt & Eidson, P.A.

   P.O. Box 231 Orlando, FL 32801

   
   

   Hon. Sandra B. Mortham Secretary of State

   The Capitol

   Tallahassee, FL 32399-0250

   
   

   Don Bell, General Counsel Department of State

   The Capitol, PL-02 Tallahassee, FL 32399-0250

   
   

   Carroll Webb, Executive Director Administrative Procedures Committee

   120 Holland Bldg. Tallahassee, FL 32399-1300

   
   

   NOTICE OF RIGHT TO JUDICIAL REVIEW

   
   

   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.

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

   DISTRICT COURT OPINION

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

   
   

   IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 1996

   
   

   ORLANDO-ORANGE COUNTY NOT FINAL UNTIL TIME EXPIRES

   EXPRESSWAY AUTHORITY, TO FILE MOTION FOR REHEARING, AND, IF FILED, DISPOSED OF.

   Appellant,

   CASE NO. 95-3081

   vs. DOAH CASE NO. 95-3903RU

   
   

   HUBBARD CONSTRUCTION COMPANY

   
   

   Appellee.

   / Opinion filed August 30, 1996

   An Administrative Appeal from the Division of Administrative Hearings.

   
   

   Michael P. McMahon and William C. Tamer, of Akerman, Senterfitt & Eidson, P.A., Orlando, for Appellant.

   
   

   1. Alan Cummings, W. Robert Vezina, III and Mary M. Piccard of Cummings, Lawrence & Vezina, P.A., Tallahassee, for Appellee.

      
      

      SHARP, W. J.

      
      

      The Orlando-Orange County Expressway Authority (Authority) appeals from a final order of the Division of Administrative Hearing (DOAH), which determined that the Authority was subject to the Administrative Procedure Act (APA), at the time it sent a letter dated July 11,1995 to Hubbard Construction Company. The letter informed Hubbard that the Authority planned to hold a public hearing on August 23, 1995, to determine whether Hubbard should be disqualify or suspended from bidding on future construction contracts with the Authority because Hubbard refused to furnish the Authority with all of the records it requested pursuant to section 3-8 of the Standard Specifications for Road and Bridge Construction (1991 ed), (the Gray Book).

      
      

      The Hearing Officer concluded that the Authority is an agency as defined by section 120.52(1)(b) of the APA, and thus is subject to the APA. It also determined that the letter constituted a rule, which was not adopted by the Authority pursuant to section 120.535(1) of the APA. On appeal the Authority raises two points only:

      THE ORLANDO-ORANGE COUNTY EXPRESSWAY AUTHORITY IS NOT AN AGENCY SUBJECT TO THE ADMINISTRATIVE PROCEDURE ACT.

      
      

      1. Subsection (b) of Section 120.52(1) does not include the Orlando-Orange County Expressway Authority.

      2. Subsections (a) and (c) of 120.52(1) do not include the Orlando-Orange County Expressway Authority.

   
   

   We affirm.

   
   

   The Hearing Officer based his decision on the fact that the Authority has been given powers to operate in Osceola County as well as Orange County, and at oral argument counsel agreed the Authority also has at least potential powers to operate in Seminole County. The APA's definition of what is or what is not an agency subject to the APA, was obscure and convoluted in its 1993 version, which was in effect at the time of the letter and proposed hearing. Since then, the statute was amended effective October 1, 1996, to define agency as excluding any legal entity or agency created in whole or in part pursuant to chapter 348, or any legal or administrative entity created by an interlocal agreement pursuant to section 163.07(7) unless any party to such an agreement is otherwise an agency as defined in this subsection or an expressway pursuant to chapter 348.

   We pass no judgment or opinion about the effect of that double-exclusionary masterpiece of legislative drafting.

   
   

   The version of the APA in effect at the time the letter was sent to Hubbard defined Agency in section 120.52(1)(b) subject to the APA, as:

   
   

   (b) Each other state officer and each state department, departmental unit described

   in s. 20.04, commission, regional planning agency, board, district, and authority, including, but not limited to, those described in chapters 163, 298, 373, 380, and 582 and s.

   86.505. except any legal entity or agency created in whole or in part pursuant to chapter 361, part II.

   
   

   The Hearing Officer followed the territorial approach voiced in Booked Creek Preservation, Inc. v. Pinellas Planning Council, 433 So.2d 1306 (Fla. 2d DCA 1983) and Rubinstein v. Sarasota County Public Hospital Board, 498 So.2d 1012 (Fla. 2d DCA 1986), in concluding that the Authority is an agency because it has been given powers to operate outside the limits of one county. He also concluded that because the Authority has been given powers and duties to plan and build a an integral part of the statewide transportation highway system that affects many counties in the central Florida area, it could be considered an agency on a function approach as well. See Pepin v. Division of Bond Finance,

   493 So.2d 1013 (Fla. 1986). Accordingly, we adopt and approve the Hearing Officer's well-reasoned opinion as our own:

   
   

   CONCLUSIONS OF LAW

   
   

   1. The Division of Administrative Hearings has jurisdiction over the subject matter. Sections 120.535 and 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   2. Section 120.52(1)(b) defines agency to include:

      each state department, departmental unit described in s. 20.04, commission regional planning agency, board, district, and authority, including, but not limited to, those described in chapters 163, 298, 373,

      380 and 582 and s. 186.504, except any legal entity or agency created in whole or in part pursuant to chapter 361, part II.

   3. In addressing this definition of agency, the courts have examined closely the geographic scope of a governmental body to determine if it is a state agency or a unit of local government. In Booker Creek Preservation- Inc. v. Pinellas Planning Council, 433 So.

      2d 1306 (Fla. 2d DCA 1983), the court affirmed a hearing officer's conclusion that the planning council was a unit of local government not subject to Chapter 120.

      The court noted that the Legislature

      created the planning council for intracounty and intercounty coordination of county planning activities and later added responsibilities for local land-use planning.

   4. Holding that the Pinellas Planning Council was not a state agency under 120.52(1)(b) the Booker Creek court reasoned:

      Because the [planning council] operates entirely within Pinellas County and has no authority outside that county, it is not comparable in jurisdiction to a statewide agency or even a regional, intercounty agency. 433 So.2d at 1308. The court also noted that the planning agency had been created by a special act of the Legislature.

   5. The Second District followed the Booker Creek approach in Rubinstein v. Sarasota County Public Hospital Board, 498 So.2d 1012 (Fla. 2d DCA 1986) (per curiam). Holding that the hospital board, whose jurisdiction did not extent [sic] beyond one county, was not a state agency under 120.52(1)(b), the Rubinstein court read the Booker Creek decision as a rejection of the functional argument in favor of an approach geared more toward the territorial jurisdiction of

      the body in question. 498 So.2d at 1014.

   6. Respondent implies in its proposed final order that the Second District's emphasis

      on territorial jurisdiction might not be, or might later prove not to be, the approach of other district courts. But Respondent would find no solace in a more functional approach to applying 120.52(1)(b). As it happens, the Supreme Court has considered the extra-local functions of Respondent in Pepin v. Division

      of Bond Finance, 493 So.2d 1013 (Fla. 1986). Dealing with a bond issue for an entirely intracounty expansion of the expressway system, the Pepin Court analyzed the crucial role of Respondent in planning and constructing key part of an integrated and balanced statewide transportation system

      and concluded that the bond challenger had failed to prove that expressway expansion would not serve a public purpose and benefit the citizens of Florida in general and the residents of Orange County in particular.

      493 So.2d) at 1014.

   7. Under the territorial approach, Respondent was a state agency under 120.52(1)(b) when the Legislature conferred upon it the rights to condemn land and construct road outside of Orange County. Under the functional approach, Respondent probably would have

been a state agency prior to its acquisition of such extracounty powers

Accordingly, the final order below is AFFIRMED. GRIFFIN and THOMPSON, JJ., concur.

================================================================= DISTRICT COURT ORDER

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

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 1996

ORLANDO-ORANGE COUNTY NOT FINAL UNTIL TIME EXPIRES

EXPRESSWAY AUTHORITY, TO FILE MOTION FOR REHEARING, AND, IF FILED, DISPOSED OF.

Appellant,

CASE NO. 95-3081

vs. DOAH CASE NO. 95-3903RU

HUBBARD CONSTRUCTION COMPANY

Appellee.

/ Opinion filed November 15, 1996

An Administrative Appeal from the Division of Administrative Hearings.

Michael P. McMahon and William C. Tamer, of Akerman, Senterfitt & Eidson, P.A., Orlando, for Appellant.

F. Alan Cummings, W. Robert Vezina, III and Mary M. Piccard of Cummings, Lawrence & Vezina, P.A., Tallahassee, for Appellee.

SHARP, W. J.

We grant Orlando-Orange County Expressway's motion for rehearing, clarification and correction, and correct the opinion to the following extent: On pages 2-3, the underlined portions are substituted, and the opinion shall now state:

Since then, the statute was amended effective October 1, 1996, to define "agency" as excluding "an expressway authority pursuant to chapter 348, or any legal or administrative entity created by an interlocal agreement pursuant to section 163.01(7) unless any party to such agreement is otherwise an agency as defined in this subsection or an expressway authority pursuant to chapter 348.

Hubbard's request for attorney's fees under section 57.105 is denied because there was not a complete absence of justiciable issues raised. T.I.E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So. 2d 697, 698, n. 3 (Fla. 3d DCA 1981).

GRIFFIN and THOMPSON, JJ., concur.

MANDATE

from

DISTRICT COURT OF APPEAL OF THE STATE FLORIDA FIFTH DISTRICT

This cause having been brought to this Court by appeal, and after due consideration the Court issued its opinion;

YOU ARE HEREBY COMMANDED that such futher proceedings be had in said cause in accordance with the opinion of ths Court attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the State of Florida.

WITNESS the Honorable EARLE W. PETERSON, JR. Chief Judge of the District Court of Appeal of the State of Florida, Fifth District, and seal of said Court at Daytona Beach, Florida on this day.

DATE: DECEMBER 4, 1996

FIFTH DCA CASE NO. 95-3081

COUNTY OF ORGIN: Orange TRIAL COURT CASE NO. 95-3903RU

(seal) ADMINISTRATIVE

FRANK J. HABERSHAW

Clerk

Docket for Case No: 95-003903RU

Orders for Case No: 95-003903RU