vs. )
Intervenor. )
Case Nos. 03-2444
Pursuant to notice, a motion hearing was held in DOAH Case No. 03-2444 on August 1, 2003, to consider Respondent’s, Office of Financial Regulation (OFR), Motion to Dismiss challenging Petitioner’s standing and the subject matter jurisdiction of the Division of Administrative Hearings (DOAH). A similar Motion to Dismiss, involving similar issues, was filed in DOAH Case No. 03- 3958RU. The cases were consolidated by order dated November 20, 2003.
For Petitioners: H. Richard Bisbee, Esquire
200 East Gaines Street Fletcher Building No. 526 Tallahassee, Florida 32399
For Intervenor: Michael H. Davidson, Esquire
The issues in this proceeding are whether DOAH has jurisdiction over the subject matter of this proceeding and whether Petitioner has standing under Chapter 120.
On July 23, 2003, OFR filed a Motion to Dismiss. On July 30, 2003, Petitioner filed its response to OFR’s Motion to Dismiss.
All parties were represented by counsel at the hearing and offered argument on behalf of their clients. Even though the opportunity was available, no evidence was offered by Petitioners on the issue of any immediate injury for the purposes of standing. After the hearing, Petitioner, Respondent, and Intervenor filed written memoranda on August 11, 2003, and August 8, 2003, respectively.
After the motion hearing, Petitioners filed Case No. 03- 3956RU, challenging the same policies and statements of OFR as unpromulgated rules. On November 4, 2003, OFR filed a Motion to Dismiss raising the same issues as were argued in Case No. 03- 2444. On November 12, 2003, Petitioners filed a response to OFR's Motion to Dismiss, also raising the same issues as were argued in case number 03-2444. The cases were consolidated by order dated November 20, 2003.
Respondent, Office of Financial Regulation (OFR), which has been through several name changes, is the agency responsible for enforcement of Chapter 494, Florida Statutes, governing the regulation and licensure of mortgage brokers and mortgage lenders. In order to perform its regulatory and licensure duties OFR collects, processes and maintains information related to mortgage brokers and mortgage lenders seeking licensure in Florida and/or complying with Florida law. Much of the information regarding a particular broker or lender is maintained by OFR in its licensure files. At least some, if not all, of the information forming OFR's licensure files are kept in electronic form in OFR's computerized licensure database. The record is not clear, if such information is also maintained in paper form. OFR's database is maintained on computers controlled and managed by Intervenor, Office of Financial Services (OFS). OFS supplies administrative
and information systems support services, including computer security, to maintain OFR's licensure database, as well as other information maintained on OFS's computer systems.
Petitioner, Dave Taylor, is president of Petitioner, Florida Compliance Specialists, Inc. Both are residents of Leon County. Petitioners' business consists of providing regulatory compliance and licensing services to in-state and out-of-state mortgage brokers or mortgage lending companies doing business or seeking to do business in Florida. Petitioners' licensure service includes, in part, aiding their clients in obtaining licensure with OFR. As part of their service, Petitioners' monitor the status of OFR's licensure files regarding a client's application for licensure, as well as gathering information related to their clients on other licensure, deficiency or compliance matters. At least some of the information contained in these files is kept in electronic form, and is accessible online through a wide-area network connection to OFR's licensure database.
Since 1999 and with the help of OFR's predecessor agency, Petitioners had computer online access, as well as non-online access, to certain of OFR’s licensure databases. The online access was provided by OFR through a networking services provider. Agency personnel provided Petitioners with a user identification and password for read-only access to OFR's licensure database. Read-only access permits a user to look at and print information
contained in a database or document, but does not permit a user to change or add data to a database or document. The networking services provider also supplied Petitioners with a separate user identification and password so that Petitioners could access the networking services provider's computer system. In order to access the networking services provider's computer system Petitioners had to enter into a written limited user agreement with the networking services provider. Petitioners paid a fee based on that agreement to the networking services provider.
There was no evidence that any part of the fee paid to the networking services provider for its service was paid to OFR or any of its predecessor agencies for access to its database. There was no access fee paid directly to OFR.
At some point prior to this action, OFR discontinued Petitioners' online access to its licensure database. Petitioner used and continues to desire online access to OFR's database in order to provide faster service to its clients which in-turn might speculatively allow Petitioners to take on more clients. Lack of online access does not prevent Petitioners from obtaining any information they utilize in their business. Such information remains available through traditional, non-online access methods such as written or telephonic requests, resulting in oral responses or paper copies of the information requested. Such traditional requests for information from OFR may be less speedy
and more costly to obtain. However, Petitioners offered no evidence to support their claim of additional costs created by non-online access vis on-line access. More importantly,
irrespective of speed or costs, online access to OFR's database or computer system is neither a legal right nor a substantial interest cognizable in an administrative hearing for purposes of Petitioners standing in this case.
Additionally, Petitioners have alleged a contract with OFR for continued online access. Other than stating there is a contract, the pleadings afford no factual basis for concluding such a contract exists. There is no contract attached to the pleadings and Petitioners have no idea of the terms or conditions of such a contract. Petitioners do not know whether the contract is written or oral or who the parties are to the contract. Clearly these allegations are purely speculative. As such, the pleadings do not form the bases for facts sufficient to demonstrate Petitioners' standing in this action.
CONCLUSIONS OF LAW
The Florida Administrative Procedures Act, Chapter 120, provides the process for a person whose substantial interests have been affected by an agency decision may seek review of that decision. However, Chapter 120 alone does not create the substantive right to challenge any decision an agency may make or indeed have such a challenge heard in an administrative forum. A
person must first demonstrate that their cause of action lies in an administrative forum and second that they have standing to bring such an administrative action.
Jurisdiction involves the power and authority of a court or administrative forum to hear and determine a controversy between adversary parties. 20 Am. Jur. 2d Courts Section 55. A judicial or administrative forum must have (1) authority over the subject matter of a controversy, (2) authority over the parties involved in a controversy, and (3) authority to grant the particular remedy sought. An administrative agency, including the Division of Administrative Hearings, may exercise quasi-judicial powers when authorized by statute. Biltmore Construction Company v. Florida Department of General Services, 363 So. 2d 851 (Fla 1st DCA 1978). However, an administrative agency "may not exercise power which is basically and fundamentally judicial such as a grant of an equitable remedy." Id. at 854. See also Department of General Services v. Biltmore Construction Company, 413 So. 2d 803 (Fla 1st DCA 1982); Fasano v. School Board of Palm Beach
County, 436 So. 2d 201 (Fla 4th DCA 1983); Whitehead v. School Board of Hillsborough County, 918 F. Supp. (M.D. Fla. 1996); and Hageman and Hageman v. Department of Environmental Protection, 1995 WL 1052930 (Fla.Div.Admin.Hrngs. 1995). The underlying rationale for this jurisdictional dichotomy lies in Article II Section 3 of the Florida Constitution, prohibiting one branch of
government from exercising the power given another branch of government. Biltmore Construction, supra. Fasano, supra. See
also State Road Department v. Cone Brothers Contracting Company,
207 So. 2d 489 (Fla. 1st DCA 1968); and San Marco Contracting Co. v. Department of Transportation, 386 So. 2d 615 (Fla. 1st DCA 1980). The only exceptions to this dichotomy have occurred in situations where the contract itself involved administrative remedies and where sovereign immunity prohibited resort to the Circuit Courts. See Graham Contracting, Inc. v. Department of General Services, 363 So. 2d 810 (Fla. 1st DCA 1978).
The person asserting standing and or jurisdiction has the burden to demonstrate his or her right to proceed under both issues. See Department of Health and Rehabilitative Services v. Alice P., 367 So. 2d 1045 (Fla. 1st DCA 1979). In this case, Petitioner has asserted that the Division has jurisdiction based on Chapter 119, Florida Statutes, access to public records, and Chapter 120, Florida Statutes, determination of substantial interests.
Access to public records is governed by Section 119.085.
Chapter 119 states in part:
119.01 General state policy on public records.
It is the policy of this state that all state, county, and municipal records shall be open for personal inspection by any person.
The Legislature finds that, given advancements in technology, providing access to public records by remote electronic means is an additional method of access that agencies should strive to provide to the extent feasible. If an agency provides access to public records by remote electronic means, then such access should be provided in the most cost-effective and efficient manner available to the agency providing the information.
The Legislature finds that providing access to public records is a duty of each agency and that automation of public records must not erode the right of access to those records. As each agency increases its use of and dependence on electronic recordkeeping, each agency must ensure reasonable access to records electronically maintained.
* * *
119.07 Inspection, examination, and duplication of records; exemptions.
(1)(a) Every person who has custody of a public record shall permit the record to be inspected and examined by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public record or the custodian's designee. . . . .
* * *
119.085 Remote electronic access to public records. As an additional means of inspecting, examining, and copying public records of the executive branch, judicial branch, or any political subdivision of the state, public records custodians may provide access to the records by remote electronic means. Unless otherwise required by law, the custodian may charge a fee for remote
electronic access, granted under a contractual arrangement with a user, which fee may include the direct and indirect costs of providing such access. Fees for remote electronic access provided to the general public shall be in accordance with the provisions of Section 119.08(1). The custodian shall provide safeguards to protect the contents of public records from unauthorized remote electronic access or alteration and to prevent the disclosure or modification of those portions of public records which by general or special law are exempt from Section 119.07(1). (emphasis supplied)
While the statute evidences the legislatures desire to provide access to public records which are electronically maintained the statute does not mandate online access or create a legal right to such online access. See Siegle v. Barry, 422 So. 2d 63 (Fla. 4th DCA 1982) where the court held that the public may not require that information contained in electronic form be made available for inspection in a particular format or the require the use of special computer programs to enable such access. Indeed, the statute only provides that such access to electronic records be reasonable and prohibits an agency from using the excuse that the records are maintained electronically as a reason not to provide access to such records. In this case, OFR, through its predecessor agency, established a written policy regarding use of electronic information technology by it. Those policies state:
It is the policy of this Department to utilize Information Technology Resources, to the maximum extent possible, to improve
operational effectiveness and efficiency, reduce the percentage of pager used in internal operations and improve internal and external communications.
Critical information, records and information technology resources as defined in Part V shall be safeguarded from damage and/or destruction. Critical information shall be secured and backed up in accordance with Department of Banking and Finance policies and procedures. The security of confidential and/or critical information can only be accessed by authorized employees; control of the access to confidential on line automated information; and protection of all passwords from disclosure to unauthorized individuals.
Records and information within the control of the department must be shared with everyone, within or without state government unless specific statutory authority provides they are confidential as defined in Part V.
These policies address the Department’s internal use of information technology to provide its services. They do not create either a substantive right to online access to the Department's records or a contract to provide such online access. They do nothing more than set forth the agency's desire to use technology in an efficient manner while protecting confidential information and providing access to public information. The fact that the agency has developed some internal policy on its use of information technology does not create a substantive legal right in a person to online access to public records or a right to challenge those policies in a rule proceeding. See Sickon v.
School Board of Alachua County, Florida, 719 So. 2d 360 (Fla. 1st DCA 1998).
More importantly, enforcement of a person’s right of access to public records is accomplished through a civil action in the circuit court. §§ 119.07(2) and 119.11, Fla. Stat. No right to an administrative hearing under Chapter 120 was created by Chapter 119. The Division has no subject matter jurisdiction to hear a case which for all practical purposes is an attempt to procure online access to public records. Likewise, the Division has no subject matter jurisdiction to hear a controversy which essentially involves enforcement of an alleged right to access to public records.
Petitioners have also asserted that the Division has jurisdiction over this action under Chapter 120 since an alleged substantive interest has been determined by OFR. The basis for this right lies in an alleged contract Petitioners have with OFR. Setting aside the wholly speculative nature of this alleged contract, it is clear that the nature of Petitioners' action is to enforce that contract and regain online access to OFR's licensure database either through a breach of contract action or an action for specific performance. It is clear that the Division does not have jurisdiction to hear either a breach of contract action or an action for specific performance. Biltmore Construction Company v. Florida Department of General Services, 363 So. 2d 851 (Fla. 1st
DCA 1978); Department of General Services v. Biltmore Construction Company, 413 So. 2d 803 (Fla. 1st DCA 1982); Fasano v. School
Board of Palm Beach County, 436 So. 2d 201 (Fla. 4th DCA 1983); Whitehead v. School Board of Hillsborough County, 918 F. Supp. (M.D. Fla. 1996); and Hageman and Hageman v. Department of Environmental Protection, 1995 WL 1052930 (Fla.Div.Admin.Hrngs. 1995). See also Peck Plaza Condominium v. Division of Florida Land Sales and Condominiums, 371 So. 2d 152 (Fla. 1st DCA 1979). Moreover, the Division has no authority to award or ability to enforce an award of either general damages or specific performance of a contract. Section 120.57 actions result in recommended orders, not final orders. Petitioners' argument regarding jurisdiction of a contract action in an administrative forum would result in the Division's recommending enforcement of a contract to an agency that has already decided to breach it.
Finally, The Administrative Procedures Act has not been interpreted to afford a litigant a substantive right to litigate any agency decision. ASI, Inc. v. Florida Public Service
Commission, 334 So. 2d 594 (Fla. 1976); and Sickon, supra. The Act is in essence, a procedural mechanism. Sickon, supra. As such, Petitioners' right to bring an administrative action is limited to areas where there is a legally recognized interest granted outside the context of the Administrative Procedure Act. In this case, no legally recognized or substantial interest has
been recognized as falling within the purview of the administrative forum and these actions should be dismissed.
However, even assuming that Petitioners have demonstrated that the Division has subject matter jurisdiction over this controversy, a litigant must demonstrate that he or she has standing to proceed with the administrative action. In order to demonstrate standing, a litigant must show that the agency decision causes the litigant a real and immediate injury in fact and that the interest affected by the agency is within the zone of interests to be regulated or protected. See Lanoue v. Florida
Department of Law Enforcement, 751 So. 2d 94 (Fla. 1st DCA 1999); NAACP, Inc., et al. v. Florida Board of Regents, 822 So. 2d 1 (Fla. 1st DCA 2002); and School Board of Orange County v.
Blackford, 369 So. 2d 689 (Fla. 1st DCA 1979). “The injury must not be based on pure speculation or conjecture.” Ward v. Board of Trustees of the Internal Improvement Trust Fund, 651 So. 2d 1236 (Fla. 4th DCA 1995); Blackford, supra; and NAACP, Inc., supra. An interest falls within the zone of interest to be regulated or protected when a statute or rule “encroaches upon an interest protected by a statute or the constitution.” Id. at 1238. At least for rule challenge proceedings, the protected zone of interest need not be found in the enabling statute of a given rule, but may arise from the operation of other statutes. Id.
In this case the interest asserted by the Petitioners is in a specific type of access, i.e. online access, to the information contained in OFR's computerized licensure database. Petitioners' allege that OFR's decision to no longer permit online access violates Florida’s Public Records Law, affects a contractual interest and that internal policies of OFR constitute unpromulgated rules.
In regard to the access to public records issue, it is clear that Chapter 119, while creating an interest in access to public records, places the jurisdiction for controversies involving such access in the circuit courts. Therefore, the interest asserted by Petitioners in continued online access to public record is not within the zone of interest which is protected by administrative law. Moreover, Petitioners' right to such online access is not of such a nature that termination of such access would cause an immediate injury in fact to Petitioners. Neither the evidence nor the pleadings demonstrate anything but highly speculative benefits to Petitioners of continued online access. Petitioners still have the ability to obtain the information from OFR's database they need for operating their business. Potential or hoped-for benefits, which may or may not result from allegedly faster online access to the information, are neither an immediate injury nor a substantial injury in fact. Finally, neither the pleadings nor the evidence demonstrates that
the contract alleged by Petitioner is anything more than speculation. Petitioners do not know the terms of the contract or any other relevant information which would form the basis for forming a contract. Such speculative allegations do not demonstrate a substantial legal right to proceed with either these actions.
Based on the foregoing Findings of Fact, Conclusions of Law and arguments of counsel, it is
That these actions are dismissed and the files of the Division of Administrative Hearings are closed.
DONE AND ORDERED this 26th day of November, 2003, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2003.
1/ The pleadings allege other statements made by OFR personnel in various meetings, emails and letters as also constituting unpromulgated rules. However, these statements are clearly not rules but only statements made during an on-going discussion of the issue both with the Petitioners, with others and among agency staff. The statements do not constitute official pronouncements of policy.
H. Richard Bisbee, Esquire Bill Reeves, Esquire
Michael H. Davidson, Esquire Department of Financial Services 612 Larson Building
James H. Harris, Esquire Peter G. Fisher, Esquire Office of Financial Regulation
200 East Gaines Street Fletcher Building No. 526
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 the original notice of appeal with the Clerk of the Division of Administrative Hearings and a 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.
