STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT ADOLF,

Petitioner,

vs.

FLORIDA ATLANTIC UNIVERSITY,

Respondent.

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) Case No. 05-0713RU

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SUMMARY FINAL ORDER

This is a case in which the Petitioner, pursuant to Section 120.56(3), Florida Statutes, seeks to challenge as an existing rule certain provisions of the Respondent's Ph.D. Program Guideline for the School of Public Administration. The specific guideline language the Petitioner seeks to challenge reads as follows:

Students who fail one-half or less than one- half of the written comprehensive examination have one opportunity to retake those portions failed at the next scheduled examination date. There is no opportunity to retake the examination if more than one- half of the questions are failed

The Petitioner also seeks, pursuant to Section 120.56(4), Florida Statutes, to challenge an agency practice, which appears to be based on an unwritten agency policy, pursuant to which some students are granted exemptions from or exceptions to the guideline language quoted immediately above. This unwritten agency policy is asserted to be an "agency statement" that "constitutes a rule under s. 120.52 and that the agency has not adopted the statement by the rulemaking procedure provided by s. 120.54." (§ 120.56(4)(a), Fla. Stat.)

In addition to, or as an alternative to, the rule challenge relief sought by the Petitioner, the Petitioner also seeks a hearing pursuant to Sections 120.569 and 120.57, Florida Statutes, to seek redress for the injuries to his substantial

interests that result from the failure of the Respondent to provide to the Petitioner the same exemption from the above- quoted requirements that the Respondent has provided to others.

There is presently pending in this case a Motion to Dismiss filed by the Respondent. The motion has been treated as a motion for a summary final order pursuant to Section 120.57(1)(h), Florida Statutes. The Petitioner has filed a written response to the Motion to Dismiss. Both documents have been carefully considered during the preparation of this Summary Final Order. For purposes of resolving the issues raised by the motion to dismiss it has been assumed that all factual allegations in the petition are true.

The primary grounds for the Motion to Dismiss arise from the following language in Section 120.81(1)(b) and (g), Florida Statutes:

(b) The preparation or modification of curricula by an educational unit is not a rule as defined by this chapter.

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(g) Sections 120.569 and 120.57 do not apply to any proceeding in which the substantial interests of a student are determined by a state university or a community college.

The Respondent is both an "educational unit" and a "state university" within the meaning of the statutory language quoted immediately above. And the contents of the Respondent's Ph.D. Program Guideline for the School of Public Administration, including the portion quoted above, constitute "curricula" within the meaning of Section 120.81(1)(b), Florida Statutes.

See Douglas A. Charity v. Florida State University, DOAH Case No. 94-5973RP, 1995 WL 1052858 (Final Order issued 06/22/95), Lasonia Saulsberry v. Florida A & M University, DOAH Case

No. 97-0324RU, 1997 WL 1052930 (Summary Final Order issued on 03/12/97) and the cases cited therein. Such being the case, the contents of the Respondent's Ph.D. Program Guideline for the School of Public Administration are not "rules" within the meaning of Chapter 120, Florida Statutes, and those contents cannot be the subject of a rule challenge proceeding under Section 120.56, Florida Statutes. Similarly, any unwritten or unpublished changes to such content would be a "modification of

curricula," which is also excluded from the definition of the term "rule" and exempted from challenge under Section 120.56, Florida Statutes.

To the extent the Petitioner seeks relief under Sections

120.569 and 120.57, Florida Statutes, such relief is unavailable by reason of the language of Section 120.81(1)(g), Florida Statutes, quoted above. Further, even if relief under 120.569 or 120.57 were available to the Petitioner, such relief cannot be sought by filing a petition directly with the Division of Administrative Hearings, but must be sought by filing a petition with the agency that is determining the Petitioner's substantial interests.

For the reasons set forth above, it is ORDERED that the Motion to Dismiss is hereby granted, the Petition in this case is hereby dismissed with prejudice,1 and the file of the Division of Administrative Hearings in this matter is hereby closed.

DONE AND ORDERED this 5th day of April, 2005, in Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 2005.

ENDNOTE

1/ Florida Administrative Code Rule 28-106.201(4) reads as follows, in pertinent part: "Dismissal of a petition shall, at least once, be without prejudice to petitioner's filing a timely amended petition curing the defect, unless it conclusively

appears from the face of the petition that the defect cannot be cured. [Emphasis added.] It conclusively appears from the face of the petition in this case that the defects that require dismissal of the petition cannot be cured.

COPIES FURNISHED:

Robert Adolf

1485 Elder Avenue, No. 24 San Diego, California 92154

David Kian, General Counsel Florida Atlantic University 777 Glades Road

Post Office Box 3091

Boca Raton, Florida 33431-0991

Scott Boyd

Executive Director and General Counsel Joint Administrative Procedures Committee Holland Building, Room 120

Tallahassee, Florida 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 the original Notice of Appeal with the agency 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.

Docket for Case No: 05-000713RU

Orders for Case No: 05-000713RU