STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRAIG D. COHEN )

)

Petitioner, )

)

vs. ) CASE NO. 75-1152RX

) FLORIDA BOARD OF REGENTS and ) FLORIDA STATE UNIVERSITY. )

)

Respondent. )

)

FINAL ORDER

This proceeding was instituted by the petition of Craig D. Cohen seeking an administrative determination, pursuant to F.S., 120,56, of the validity of the rules set forth in the Florida State University handbook entitled the "Pow Wow". The original petition was served only upon the Florida Board of Regents and it was ordered that an amended petition be filed so as to include Florida State University as a necessary party respondent, with proper proof of service noted thereon.

The amended petition alleged that the petitioner, in his capacity as an enrolled student at the Florida State University, was the subject of a systematic defamation by an employee/student of and at the Florida State University. It was further alleged that the petitioner obtained no relief in his attempts to pursue administrative means against the defaming party as an employee and that he was required to pursue remedies against the defaming party as a student" pursuant to the 'rights and responsibilities of the 'Pow Wow' promulgated by the President of the Florida State University..." The amended petition sought, inter alia, an administrative determination as to whether the "Pow Wow" as rules constituted an invalid exercise of validly delegated legislative authority and/or an exercise of invalidly delegated legislative authority, pursuant to F.S., 120,56.

Pursuant to notice, a hearing was held on September 2, 1975. At the outset oral argument was presented on respondents' motion to dismiss, which motion was based upon grounds of lack of jurisdiction over the subject matter, lack of jurisdiction over the person and failure to state a cause of action. The motion was denied and it was determined that the petition would be heard on the merits for the purpose of reaching an administrative determination of the validity or invalidity of the "Pow Wow as rules.

The petitioner moved, at the outset of the hearing, to continue the hearing at a later date for the purpose of taking the testimony of Dr. Stanley Marshall, President of Florida State University. After hearing argument on the motion from all parties, the motion was denied for the reasons that on August 1, 1975, this cause was noticed for hearing to be held on September 2, 1975, pursuant to F.S., 120.56 which provides that a hearing shall be held within thirty days after the assignment of a hearing officer, which is to occur within 10 days of the filing of the petition. It was thus felt that petitioner had had ample time

for discovery and to effectuate the serving of a subpoena. It was further determined when the motion was renewed later during the hearing that no further material or relevant evidence would be elicited from Dr. Marshall which would warrant a continuance of the proceedings.

1. At the hearing, it was petitioner's contention that he was repeatedly denied an opportunity for a hearing and that the "Pow Wow" is not now and never was a valid set of Rules. Testimony concerning petitioner's conversations with various University personnel was objected to by both respondents on the grounds that such evidence went to the administration or application of the Rules, rather than to their validity. The objection was sustained and proceedings were confined to evidence relating to the validity or invalidity of the challenged Rules.

   
   

2. The following relevant evidence was adduced. During the 1974-75 academic year, petitioner was enrolled as a student at Florida State University. In or about February of 1975, petitioner sought to obtain relief against an alleged defamer, who was both a student and an employee at FSU. Informal means of resolving the dispute failed. On or about May 27, 1975, a formal complaint was filed by petitioner. Attachments to the petition show that several letters were sent by petitioner's attorney to administrative personnel of FSU and the Florida Board of Regents requesting that disciplinary action be taken against the alleged defamer and/or that a hearing be held on the matter. Petitioner was advised by President Marshall that he would not deviate from the University Judicial System procedures and that petitioner would have to follow those procedures set forth in the "Pow Wow". Petitioner was further advised that because the alleged defaming student had left campus for the summer quarter, the case would have to be postponed until the fall quarter, the case would have to be postponed until the fall quarter. Mr. Richard E. Hulet, Vice Chancellor for Student Affairs, agreed with Dr. Marshall that established university procedures had been followed in petitioner's case.

   
   

3. Although the exact date of promulgation of the rules set forth in the "Pow Wow" was not established at the hearing, Dr. Edwin Bass, Assistant Vice- President for Student Educational Services and Chief Student Affairs Officer at FSU, testified that the rules were in effect prior to January1, 1975. Dr. Hulet also testified that it was his understanding that said rules were in effect prior to January 1, 1975.

   
   

4. Other than the alleged faulty administration or application of the rules in question, it appears to be the petitioner's position that said rules are a nullity for the reasons that they are neither authorized nor provided for by statute or, if they ever were a valid set of rules, they were invalidated by operation of Chapter 75-191, Laws of Florida, effective June 26, 1975. In connection with this latter reasoning, it is contended that said Chapter 75-191, by including units of the state university system within the confines of the Administrative Procedures Act, invalidated the "Pow Wow" rules by virtue of 120.54(9), which states that the Model Rules of Procedure shall be the rules of procedure for each agency subject to the APA to the extent that each agency does not adopt a specific rule of procedure covering the subject matter contained in the Model Rules.

   
   

5. Upon careful consideration of the points and contentions raised by petitioner, as well as the testimony and evidence adduced at the hearing, the undersigned Hearing Officer concludes that there has been no showing that the Rules set forth in the "Pow Wow" constitute either an invalid exercise of invalidly delegated legislative authority.

6. The Florida Board of Regents is authorized and empowered to establish the policies, rules and regulations under which the state university system shall be managed and operated and is empowered to delegate to the heads of the several institutions such of it's powers as it deems expedient and proper. F.S., 240.042(1) and (2). Also see F.S., 240.045. Pursuant to said statutes, the Florida Board of Regents promulgated Chapter 6C-6.10 and 6C-6.11 of the

   F.A.C. which provide that the president of each institution has responsibility for student conduct and discipline, 6C-6.10(2), and that each institution shall develop, publish and enforce appropriate rules and regulations governing student life, 6C-6.11(1). It thus appears that there is ample authority for the rules appearing in the ""Rights and Responsibilities" section of the "Pow Wow and that said rules are a availed exercise of validly delegated legislative authority. There was no evidence adduced which would show that the challenged rules were not promulgated by or under the direction or supervision of the President of FSU.

   
   

7. As to the effect of the Administrative Procedures Act, specifically 120.52(6) and 120.54(9), as amended to date, upon the challenged Rules, the undersigned Hearing Officer finds and concludes that the Rules in question pertaining to the University Judicial System are not the type of procedural rules embodied in the Model Rules of Procedure to govern 120.57(1)-type hearings. Although the University Judicial system rules provide for a hearing with the same elements of due process afforded, the President of the University may accept or make new determinations of fact or punishment. It is at that point that the substantially interested person may request a 120.57(1) hearing, which would, of course, be governed by the Model Rules of Procedure to the extent that the agency (FSU) does not adopt a specific rule of procedure covering the subject matter contained in the Model Rules. Thus, even if the Rules in question were not adopted following a public hearing, which fact was not established at the hearing, said Rules would be valid and effective until October 1, 1975, pursuant to F.S. 120.72(4).

It is therefore the conclusion of the undersigned Hearing Officer that the challenged Rules, those set forth in the "Rights and Responsibilities" section of the "Pow Wow", are a valid exercise of validly delegated legislative authority. Accordingly, the petition filed in this matter is DENIED.

DONE and ORDERED this 29th day of September, 1975, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Stephen Marc Slepin, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee,Florida 32301 Attorney for Petitioner

John D. Carlson, Esquire State Board of Education

400 Barnett Bank Building Tallahassee, Florida 32304 Attorney for Board of Regents

Jean K. Parker, Esquire Suite 309, Westcott Building Tallahassee, Florida 32306

Attorney for Florida State University

Docket for Case No: 75-001152RX

Orders for Case No: 75-001152RX