STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD A. DARLING, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2057RP

) DEPARTMENT OF STATE, BUREAU OF ) ADMINISTRATIVE CODE, )

)

Respondent. )

)

FINAL ORDER

Richard A. Darling filed a petition pursuant to Section 120.54(4), Florida Statutes, seeking a determination that a memorandum dated May 30, 1984, from Respondent to subscribers to the Florida Administrative meekly notifying them of an increase in the subscription cost effective July 1, 1984, was both a proposed rule and an invalid exercise of delegated legislative authority. His petition was accepted by the Director of the Division of Administrative Hearings as a rule challenge pursuant to Section 120.56, Florida Statutes. In their pre- hearing stipulation, the parties stipulated that they were proceeding pursuant to Section 120.54(4), Florida Statutes.

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 23, 1984, in Tallahassee, Florida. Petitioner Richard A. Darling appeared on his own behalf, and Respondent Department of State, Bureau of Administrative Code, was represented by John M. Knight, Esquire, Tallahassee, Florida.

Petitioner testified on his own behalf. Additionally, Petitioner's Exhibits numbered 1-3 were admitted in evidence. The Respondent presented the testimony of Liz Cloud and Dave Register. Additionally Respondent's Exhibits numbered 1-4 were admitted in evidence.

Only Respondent submitted posthearing proposed findings of fact in the form of a proposed final order. To the extent that any proposed findings have not been adopted in this Final Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. Pursuant to statute, Respondent is responsible for the publication of the Florida Administrative Weekly. During the fiscal year commencing July 1, 1983, the subscription cost was $104 plus $5.20 state sales tax for 52 issues of that publication.

2. By memorandum dated Nay 30, 1984, Respondent advised subscribers to the weekly publication that the new subscription cost for the period July 1, 1984, through June 30, 1985, would be $141 plus $7.05 state sales tax.

   
   

3. The increase in the subscription cost was necessary in order to comply with an audit report of the State of Florida Office of the Auditor General for the fiscal year ended June 30, 1983, which report noted that the total printing costs of the Florida Administrative Weekly were not being recovered by Respondent through the sale of the publication but were being borne partially by the Department. The Auditor General therefore recommended that the total cost of printing the Florida Administrative Weekly (including such costs as labor, maintenance on printing equipment, etc.) be included in determining the costs which should be recovered through the sale of the publication in accordance with good accounting practices.

   
   

4. Respondent projected that the average number of subscribers to the Florida Administrative Weekly for the fiscal year 1984-85 would be 1600, based upon its historical data.

   
   

5. Respondent then computed the subscription cost of the Florida Administrative Weekly for the 1984-85 fiscal year by totaling the salaries, expenses, operating capital outlay costs, and the labor costs associated with its publication; dividing that figure by half as required by Section 120.55(1)(e), Florida Statutes; and then dividing that figure by 1600, the projected average number of subscribers.

   
   

6. A $119,788 labor cost associated with publishing the Florida Administrative Weekly was added to the printing cost due to the criticism contained in the Auditor General's Resort. That figure increased the $78,000 labor cost for the 1982-83 fiscal year due to the fact that the $78,000 figure in Respondent's cost records was based upon costs that had not been updated for a number of years. Respondent recalculated those costs to reflect the current amount of labor costs associated with the publication of the Florida Administrative Weekly.

   
   

7. A subscription cost of $141 is mechanically obtained when the total costs associated with printing and publishing the Florida Administrative Weekly are divided in half and then divided by the projected average number of subscribers.

   
   

8. The ten-percent surcharge authorized by statute has not been added to the subscription cost of the Florida Administrative Weekly for the 1984-85 fiscal year.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto.

   
   

10. Section 120.55(1)(e), Florida Statutes, requires Respondent to

    
    

    (e) Make copies of the Florida Administrative weekly available on an annual subscription basis computed to cover a pro rata share of 50 percent of the costs related to the publication of the Florida Administrative Weekly.

11. Additionally, Section 120.55(5), Florida Statutes, provides that:

    
    

    1. There is hereby created in the State Treasury a revolving fund to be known as the "Publication Revolving Trust Fund" of the Department of State.

    2. All fees and moneys collected by the Department of State under this chapter shall be deposited in the revolving trust fund for the purpose of paying for the publication and distribution of the Florida Administrative Code and the Florida Administrative Weekly and for associated costs incurred by tide department in carrying out this chapter.

    3. The unencumbered balance in the revolving trust fund at the beginning of each fiscal year shall not exceed $100,000, and any excess shall be transferred to the General Revenue Fund.

    4. It is the intent of the Legislature that the Florida Administrative Weekly be supported entirely from fiends collected for subscriptions to and advertisements in the Florida Administrative Weekly. To that end, the Department of State is authorized to add a surcharge of 10 percent to any charge relating to the Florida Administrative Weekly until such time as the Publication Revolving Trust Fund has transferred to the General Revenue Fund an amount equal to all funds appropriated to the trust fund. (Emphasis added.)

       
       

12. Petitioner contends that the Florida Legislature never intended that the cost of the Florida Administrative Weekly, published pursuant to the above statutes, be as high as it is and that Respondent has acted without statutory authority in establishing the current price for the Florida Administrative Weekly. Petitioner further contends that Respondent has included more than just the cost of publication in computing the cost of the publication. However, Petitioner failed to present any evidence to support his allegations; nor did he present any facts relating to the cost of publication of the Florida Administrative Weekly.

    
    

13. Respondent contends that it has acted within its delegated legislative authority in computing the price of the Florida Administrative Weekly Section 120.55(5)(d), Florida Statutes, requires that the Florida Administrative Weekly be supported entirely from funds collected from subscriptions to and advertisements in the publication. Section 120.55(1)(e), Florida Statutes, sets forth the requirement that the subscription rate be computed to cover a pro rata share of 50 percent of the costs related to publication of the Florida Administrative Weekly. To that end, Respondent has based the 1984-85 subscription rate for the Florida Administrative Weekly on 50 percent of the costs related to its publication.

    
    

14. Petitioner presented no evidence in support of his a1legation contained in his petition that he has standing to bring this action by virtue of

    being a "continuous and charter subscriber" in the Florida Administrative Weekly. However, it is reasonable to conclude that any person subscribing or intending to subscribe would have an interest in its cost, but not necessarily a substantial interest. Purchase of the Florida Administrative Weekly is certainly not mandatory for anyone; and many free copies are available to interested readers in the federal and state courts having jurisdiction over Florida residents, the Legislative Library and other libraries, offices of state legislators and departments, the Division of Administrative Hearings, and other designated offices such as the clerks of circuit courts where they are required to be posted for public inspection. Section 120.55(4), Florida Statutes.

    
    

15. Although Petitioner claims that the May 30, 1984, memorandum is a proposed rule entitling him to an administrative determination of its validity, the mechanical computation of figures according to a statutory formula cannot be held to be an agency policy of general applicability. It is, rather, in the nature of a budgetary analysis and is therefore not a rule or proposed rule within the meaning of Chanter 120, Florida Statutes.

    
    

16. Even if the computation and announcement of the cost of a voluntary subscription to a publication could be held to be a rule, there is record support for the 1984-85 subscription cost to the Florida Administrative Weekly. The evidence presented by Respondent to show its mechanical computation of the costs associated with the publication of the Florida Administrative Weekly is uncontroverted. Since petitioner presented no evidence in support of his allegations that the subscription cost should be lower, he has failed to meet his burden of proving that Respondent's notice of a subscription cost increase is arbitrary, erroneous, or an invalid exercise of delegated legislative authority.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

ORDERED:

Petitioner has failed to establish that the May 30, 1984, announcement memorandum is a rule or proposed rule or that it constitutes an invalid exercise of delegated legislative authority, and the petition herein is, accordingly dismissed.

DONE and ORDERED this 7th day of August, 1984, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 7th day of August, 1984.

COPIES FURNISHED:

Richard A. Darling

310 North Gadsden Street Post Office Box 127 Tallahassee, Florida 32302

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

John M. Knight, Esquire Division of Elections The Capitol, Room 1801

Tallahassee, Florida 32301

The Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32301

Docket for Case No: 84-002057RP

Orders for Case No: 84-002057RP