STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY WARD, McARTHUR SMITH and ) NIDIA GARCIA, )

)

Petitioners, )

)

vs. ) CASE NO. 86-2430RP

) STATE OF FLORIDA, DEPARTMENT OF ) LABOR AND EMPLOYMENT SECURITY, ) UNEMPLOYMENT APPEALS COMMISSION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled cause on August 7, 1986, at Tallahassee, Florida.

APPEARANCES

For Petitioner: Paolo G. Annino, Esquire

Legal Services for North Florida 822 North Monroe Street Tallahassee, Florida 32303

For Respondent: Geri Atkinson-Hazelton, Esquire

John D. Maher, Esquire Unemployment Appeals Commission 1321 Executive Center Drive Ashley Building, Suite 221 Tallahassee, Florida 32301

By petition dated July 7, 1986, Mary Ward, McArthur Smith and Nidia Garcia, Petitioners, by and through their attorney, challenge proposed Rules 38E- 3.009(3) and 38E-5.014(1), Florida Administrative Code, on grounds the proposed rules are invalid exercises of delegated legislative authority and the economic impact statements provided with the proposed rules are inadequate.

At the hearing, the challenge to proposed Rule 38E-5.014(1), Florida Administrative Code, was withdrawn by Petitioners, leaving only the challenge to proposed Rule 38E-3.009(3), Florida Administrative Code. Thereafter, the full text of the proposed rule, including the economic impact statement, was admitted into evidence as Exhibit 1 and official recognition was taken of court records presented by Petitioners as exhibits 1 through 6. These records demonstrate standing of Petitioners to institute this action and their standing was not questioned by Respondent.

There are no facts in dispute in these proceedings. Findings of fact noted below are taken from the proposed recommended orders submitted by the parties.

FINDINGS OF FACT

1. All three Petitioners have made claims for unemployment benefits. Petitioners Garcia and Ward have appeals pending in the District Court of Appeals and Smith has a pending appeal before the Unemployment Appeals Commission. If unsuccessful before the Commission, Smith's next appeal is to the District Court of Appeals. All Petitioners have standing to contest this proposed rule.

   
   

2. Public notice of Respondent's intent to adopt proposed Rule 38E-3.009, Florida Administrative Code, was published in the June 27, 1986 Florida Administrative Weekly and Petitioners timely filed their challenge.

   
   

3. In procedures followed by the Unemployment Appeals Commission, the fact finding hearing before the Appeals Referee is taped and upon appeal from that decision to the Commission, the tape itself, rather than a transcript thereof, is forwarded to the Commission which reviews the tape before rendering their decision. Thereafter, if the applicant for benefits loses and takes an appeal to the Court of Appeals, the Commission, prior to the promulgation of proposed Rule 38E-3.009, Florida Administrative Code, provided the appellant a transcript of the proceedings before the Appeals Referee at no cost while preparing the record on appeal.

   
   

4. Proposed Rule 38E-3.009, Florida Administrative Code, would require the appellant to pay the cost of obtaining a transcript of the proceedings in perfecting his appeal to the District Court of Appeals. In pertinent part, Rule 38E-3.009, Florida Administrative Code, provides:

   
   

   * * *

   (3) Within 10 days of filing of the notice, the appellant shall designate those portions of the proceedings for transcription and inclusion in the record. Within 20 days of filing of the notice, the appellee may designate additional portions of the proceed- ings. Copies of designations shall be served on the Clerk of the Commission along with a request that the Clerk provide a duplicate of

   the tape recorded record of the proceedings for transcription by a court reporter. Within 30 days of a designation, the designating party shall insure that the court report shall transcribe and deliver to the Clerk of the Commission the designated proceedings. In

   the alternative; the designated party may request that the Clerk of the commission arrange transcription of the designated pro- ceedings by the clerk's staff or other qualified person. The Clerk shall charge no more than actual costs for duplication of the tape recording of the proceedings. Costs shall be borne initially by the designating party, subject to taxation of costs as pre- scribed by Florida Rule of appellate Procedure 9.400.

   CONCLUSIONS OF LAW

   
   

5. Section 443.041(2)(a), Florida Statutes, provides in pertinent part:

   
   

   No individual claiming benefits shall be charged fees of any kind in any proceeding under this chapter by the commission or division or their representations, or by any court or any officer thereof . . . .

   
   

6. Petitioners contend that this section of the Unemployment Compensation Law entitles them to free transcripts of proceedings needed to perfect an appeal to the courts. Respondent, on the other hand, contends that costs of transcribing proceedings are not fees, and such costs are provided for by Section 120.57(1)(b)6, Florida Statutes, which provides in pertinent part:

   
   

   The agency shall accurately and completely preserve all testimony in the proceedings, and, on the request of any party, it shall make a full or partial transcript available at no

   more than actual cost.

   
   

7. Section 443.036, Florida Statutes, entitled "Definitions" does not define the word "fee." Webster's New Collegiate Dictionary (1977) defines "fee" as (1) a fixed charge; (2) a charge for professional services. Neither of these definitions fully encompasses the cost of providing a transcript needed to perfect an appeal to the court.

   
   

8. Petitioners cite Butler v. City of Newaygo and Michigan Employment Security Commission, 320 N.W.2d 401 (Mich. App. 1982), in support of their position that fees include the costs of transcribing the proceeding. That case provides in pertinent part:

   
   

   M. C. L. s. 600.2543; M. S. A. s. 27A.2543,

   provides that certain fees may be charged

   by circuit court stenographers for transcripts ordered by the parties. Under M. C. L.

   s. 600.2504; M. S. A. s. 27A.2504, however,

   the allowance of fees set forth in Chapter 25 of the Revised Judicature Act, M. C. L.

   s. 600.2501 et seq. is made expressly inapplicable to any case where special provision is otherwise made by law. The MESA contains just such a special provision relating to fees. M. C. L. s 421.31;

   M. S. A. s. 17.533, provides in part that, "No individual claiming benefits shall be charged fees of any kind in any proceeding under this act by the commission or its representatives or by any court or officer thereof."

   
   

   The court reporter (or court stenographer) is clearly an officer of the court. See

   M. C. L. s. 600.2501; M. S. A. s. 27A.2501.

   Court reporters are salaried employees of their respective counties. M. C. L. s. 600.1114 et seq.; M. S. A. s. 27A.1114 et seq. Pursuant

   to M. C. L. s. 600.1111; M. S. A. s. 271.1111,

   the Supreme Court has prescribed the duties of court reporters. These include attendance

   at court, recording of proceedings, safekeeping of records and furnishing of transcripts upon request. GCR 1963, 915.

   
   

9. It is apparent, offhand, that Michigan court reporters enjoy a different classification from most of those in Florida. While there are some reporters in Florida who are designated as "official court reporters" for a specific court system, record criminal proceedings, prepare transcripts which parties can purchase, and are paid a monthly salary, the vast majority of the court reporters are "free lance" reporters who work on a case by case basis and charge a fee based on their appearance at the proceeding and a per page charge for a copy of the transcript of the proceedings. Those reporters appearing in administrative proceedings work on a case by case basis and charge a per page fee for a copy of the transcript to anyone wishing to purchase same. They are not "officers of the court" and under a duty to provide a transcript of the proceedings free of charge. Although no evidence was presented in this regard, it is accepted that, in Florida, in criminal cases involving indigents who appeal their conviction, the county pays the official court reporter for the copy provided to the indigent needed to complete the record on appeal. Other than Section 120.57(1)(b)6, there is no provision in the Florida Statutes respecting who pays for transcripts of administrative proceedings.

   
   

10. In Harris v. Department of Corrections, 486 So.2d 27 (Fla. 1st DCA 1986), the court adopted the rationale in Harrell v. Department of Health and Rehabilitative Services, 361 So.2d 715 (Fla. 4th DCA 1978), which denied a free transcript in an administrative appeal. The Fourth District Court of Appeal held that Chapter 120 did not require state agencies to provide transcripts free of charge to indigents. Specifically the court stated at p. 718:

    
    

    We therefore hold that this court does not have the statutory authority to order the Department of Health and Rehabilitative Services to furnish a transcript of agency proceedings at its own expense (notwithstanding petitioners' indigency) and this lack of statutory authority cannot be circumvented on state or federal constitutional grounds. If the legislature decides that indigent petitioners ought to be provided, at state expense, a transcript of agency proceedings, it may so provide by appropriate legislation. In the absence of such legislation, we shall, in the future, dispose of similar motions in accordance with the views expressed herein.

    
    

11. Section 57.081, Florida Statutes, which involves appeals by indigents provides in pertinent part:

    
    

    Any indigent person who is a party or intervenor in any judicial or administrative agency proceeding or who initiates such pro- ceedings shall receive the services of the courts, sheriffs, and clerks, with respect to such proceedings, without charge.

12. It is difficult to rationalize a theory which would require the administrative agency to provide a transcript free of charge to one appealing a decision denying unemployment compensation benefits and not require similar treatment to one appealing a denial of aid to dependent children or food stamp benefits. The one section of the statute (indigents) provides services of courts, sheriffs and clerks shall be received by the one seeking benefits without charge; while the other (unemployment appeals) provides the one seeking such benefits shall not be charged fees. It would appear that provision of services without charges would be more valuable and cover a wider scope of interest than would waiver of fees. However, there is sufficient similarity in the two sections of the statutes [57.081 and 443.041(2)(a)] to hold Section 120.57(1)(b)6, Florida Statutes, controlling in the question of charges for transcripts of proceedings.

    
    

13. Petitioner's challenge based on the inadequacy of the economic impact statement is without merit. Florida-Texas Freight, Inc. v. Hawkins et al., 379 So.2d 944 (Fla. 1979). While, by this rule, Respondent is giving notice that it will no longer provide a benefit that it has provided in the past, this involves no legal economic impact because the services previously provided were not required to be provided by the statutes and, in fact, were in deregation of the legislative mandate of Section 120.57(1)(b)6, above quoted.

    
    

14. From the foregoing, it is concluded that Petitioners have failed to establish that Rule 38E-3.009, Florida Administrative Code, is an invalid exercise of delegated legislative authority and the challenge should be dismissed. It is

ORDERED that the petition of Mary Ward, McArthur Smith and Nidia Garcia challenging proposed Rule 38E-3.009, Florida Administrative Code, be DISMISSED.

DONE and ORDERED this 15th day of September 1986, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 15th day of September 1986.

COPIES FURNISHED:

Paolo G. Ahnino, Esquire

Legal Services for North Florida, Inc. 822 North Monroe Street

Tallahassee, Florida 32303

Geri Atkinson-Hazelton, Esquire John D. Maher, Esquire Unemployment Appeals Commission 1321 Executive Center Drive Ashley Building, Suite 221 Tallahassee, Florida 32301

Wallace E. Orr Secretary

206 Berkeley Building

2590 Executive Center Circle, E. Tallahassee, Florida 32301

Kenneth Hart, Esquire General Counsel Montgomery Building Suite 131

2562 Executive Center Circle, E. Tallahassee, Florida 32301

Docket for Case No: 86-002430RP

Orders for Case No: 86-002430RP