RICHARD A. DARLING, )
vs. ) CASE NO. 84-1088RP
Respondent. )
This matter came on for hearing in Tallahassee, Florida, on May 3, 1984, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The appearances were as follows:
For Petitioner: Richard A. Darling
For Respondent: Percy W. Mallison, Jr., Esquire
This case concerns Petitioner's challenge to Respondent's proposed Model Rules Chapter 28-8, Florida Administrative Code (F.A.C.). The petition was filed under the provisions of Section 120.54(4), Florida Statutes (F.S.) (1983). 1/ At the hearing, five exhibits were received into evidence. Petitioner testified in his own behalf. No other testimony was offered. The parties submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.
Petitioner is a citizen of the State of Florida and, as such, is entitled to attend public meetings and workshops. He is also a licensed hearing aid specialist, a profession regulated by the State pursuant to Chapter 484,
F.S. The Board of Hearing Aid Specialists is an agency with a collegial head which must meet in a manner consistent with Section 286.011, F.S., otherwise known as the "Sunshine Law." Petitioner has the right under Section 286.011 to attend all meetings and workshops held by the Board.
Respondent Administration Commission exists as part of the Executive Office of the Governor and is comprised of the Governor and Cabinet. See, Section 14.201, F.S. It is authorized by Subsection 120.54(10), F.S., to promulgate model rules of procedure.
On March 16, 1984, the Administration Commission noticed its intent to adopt Rule Chapter 28-8 by providing notice in Volume 10, Number 11 of the Florida Administrative Weekly. The proposed rules are entitled "Conducting Meetings and Workshops by Communications Media Technology."
The purpose of proposed Rule Chapter 28-8, F.A.C., is to provide model rules of procedure for agencies conducting public meetings and workshops by means of or in conjunction with communications media technology (CMT). The proposed rules are intended to implement Subsection 120.53(6), F.S.
CONCLUSIONS OF LAW
Section 3 of Chapter 83-273, Laws of Florida [codified as Section 120.53(6), F.S.] 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 public's right of access 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 application to such meetings, hearings, and workshops.
Subsection 120.54(10), F.S., 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. . . .
The CMT statute is a part of the Administrative Procedures Act and, as such, deals with matters procedural in nature [e.g. conducting meetings, receiving evidence). It is closely related to Subsection 120.53(1)(d) F.S., a part of the original 1974 Administrative Procedures Act, which requires agencies to adopt rules for scheduling of meetings, hearings and workshops.
Petitioner contends that Respondent is without authority to publish a model rule of procedure on CMT. This argument must be rejected since Subsection 120.53(6), F.S., quoted above, provides that "Each state agency shall
adopt rules providing a procedure for conducting meetings . . . by means of communications media technology." Subsection 120.54(10), also quoted above provides that Respondent "shall promulgate . . . model rules of procedure."
Where, as here, state agencies are required by statute to adopt rules of procedure, the promulgation of model rules is appropriate. As stated in Subsection 120.54(10), F.S., "The model rule of procedure becomes the rule of each agency which does not adopt a specific rule covering such subject matter."
Petitioner also attacks the proposed rules as being contrary to the Government in the Sunshine Law, Section 286.011, F.S. That statute 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, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are to be 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.
Petitioner argues that, insofar as the proposed rules would permit agencies to meet electronically rather than physically, it deprives him as a member of the public from being able to attend those meetings. However, the proposed rules do not "permit" an agency to meet electronically. The proposed rules merely establish procedures to be followed if an agency chooses to meet by means of communications media technology. For purposes of this proceeding, agencies are assumed to have the authority to meet electronically. Otherwise, the directive of Section 120.53(6), F.A.C., to adopt procedures for such meetings would make no sense.
The Sunshine Law provides that agency meetings are open to the public at all times. In this regard, Proposed Rule 28-8.04 expressly provides in Subsection (1) that:
Nothing in this rule chapter shall be construed to permit an agency to conduct any meeting or workshop otherwise subject to s.
286.011 by means of communications media technology without making provision for the attendance at that meeting or workshop of any member of the public who desires to attend.
The same rule reiterates what Subsection 120.53(6), F.S., provides, which is that every CMT meeting or workshop must have at least one access point for public attendance and that action taken in disregard of such requirement shall be void. Furthermore, the rule makes clear that a CMT meeting or workshop cannot be conducted unless all members of the public who desire to "attend" can be accommodated. The term "attend" is defined by the rules to mean having access to the communications media technology network being used to conduct a meeting or workshop. . ." It must be concluded that the rules do not violate the Sunshine Law. Petitioner has the right to "attend" a CMT meeting or workshop and that right is consistent with the provisions of Section 286.011, F.S.
Petitioner contends that the proposed rules violate his constitutional rights of free speech, and expresses the fear that CMT could be used to prevent him from commenting on public business. However, there is nothing in the proposed rules which limits the public's right to address an agency on any issue which may be of concern. Petitioner has the same right to express his opinions at a CMT meeting or workshop as he does at one where both he and the agency are physically present in the same room. Rule 28-9.07(1), expressly provides:
Any person or party who would otherwise be authorized to testify or argue on any
issue being considered at a CMT meeting or workshop shall be entitled to so testify or argue through the communications media technology network being utilized in conjunction with or to conduct said meeting or workshop unless for good cause stated in the record the chairperson determines that personal testimony or argument is necessary.
If Petitioner believes the model rules should contain a stronger recognition of the public's right to address a public agency, his recourse is to petition the Administration Commission to enact such a rule. See, Subsection 120.54(4), F.S.
Finally, Petitioner has challenged the Economic Impact Statement (EIS) contending that the EIS does not adequately address the costs an agency would incur if it decides to utilize CMT. Petitioner argues that, if the Administration Commission is not required to estimate the impact on other agencies, no economic impact may ever be done since those agencies need not proceed through formal rulemaking to utilize the model rules.
The proposed model rules are only procedural. Whether an agency chooses to conduct a given meeting or workshop by means of CMT and, if so, what equipment it chooses to purchase or lease are issues unrelated to the narrow subject matter of these proposed rules. Presumably, an agency will request funds from the Legislature to purchase or lease CMT equipment, and the economic analysis would properly be considered during the appropriations process. Further, there is no evidence 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).
Petitioner has failed to establish that the Administration Commission's Proposed Model Rules Chapter 28-8, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority, and the Petition for Determination of Invalidity of Rule is accordingly DISMISSED.
DONE and ORDERED this 12th day of June, 1984 in Tallahassee, Florida.
R. T. CARPENTER Hearing Officer
FILED with the Clerk of the Division of Administrative Hearings this 12th day of June, 1984.
1/ Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority.
Richard A. Darling
Percy W. Mallison, Jr., Esquire Assistant Attorney General Division of Cabinet Affairs The Capitol
Ms. Liz Cloud, Chief Administrative Code Bureau Department of State
Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301
