STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELEN EVANS, )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF PROFESSIONAL ENGINEERS, )

)

Respondent. )

Case No. 03-4035RP

)

FINAL ORDER OF DISMISSAL AND FINAL ORDER FOR SUMMARY JUDGMENT

Administrative Law Judge (ALJ) Daniel Manry did not conduct an administrative hearing of this case on behalf of the Division of Administrative Hearings (DOAH) because DOAH lacks jurisdiction to conduct a hearing.

APPEARANCES

For Petitioner: Helen Evans, pro se

606 West Lee Street

Mebane, North Carolina 27302

For Respondent: Paul J. Martin, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The ultimate issue in this proceeding is whether proposed Florida Administrative Code Rule 61G15-21 is an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

On October 31, 2003, Petitioner filed with DOAH an untitled document that is referred to herein as the Petition. The Petition names the Florida Board of Professional Engineers (the Board) as the Respondent.

DOAH issued an Order of Assignment on November 3, 2003, and inadvertently sent a copy of the Petition to the Florida Engineers Management Corporation (the Corporation) on the same day. On November 4, 2003, the ALJ scheduled an administrative hearing for November 24, 2003.

The Corporation filed a motion to dismiss on November 12, 2003. DOAH issued an Amended Order of Assignment on

November 17, 2003, and sent a copy of the Petition to the Board. The ALJ issued an Order Granting Motion to Dismiss on

November 18, 2003. The Order dismissed the administrative proceeding against the Corporation, but kept open the administrative proceeding that the Petition originally commenced against the Board.

On November 17, 2003, the Board filed Respondent's Motion to Dismiss (Motion to Dismiss) or in the Alternative Motion for Summary Final Order (Motion for Summary Final Order). On November 24, 2003, the Board filed a Motion for Continuance.

Petitioner filed her objections to the motions on December 8 and 12, 2003. On December 2, 2003, the ALJ granted the Motion

for Continuance and rescheduled the administrative hearing for January 28, 2004.

This Final Order disposes of the Motion to Dismiss Motion for Summary Final Order based on Findings of Fact alleged in the Petition and in Petitioner's written objection to the motions.

The ALJ did not conduct an evidentiary hearing. The trier of fact assumes that the factual allegations in the Petition (Findings 1-6) and in the written objection to the motions are true (Findings 7-21).

FINDINGS OF FACT

1. Petitioner resides in Mebane, North Carolina. Sometime in April 2003, Petitioner requested the Board to release certain information that is public information within the meaning of Chapter 119, Florida Statutes (2003).

2. Sometime in October 2003, the Board provided some of the information requested by Petitioner. The information included "scores, converted and raw and seat numbers of test applicants." Respondent did not include the "listed areas as agreed." The Board charged Petitioner $90.00 for providing "what they felt Petitioner should have," and the Board was "quite insulting about it."

3. On a date not identified in the Petition, Petitioner asked a representative of the Board if the Board "currently" had an advertisement in the Florida Administrative Weekly concerning

   a "rule challenge that dealt with raw scores or scores in general." The representative stated there was no proposed rule change pertaining to scores. Petitioner asked for any and all data pertaining to scores as a rule change. The representative for the Board stated there was no such information to provide.

4. At some time not identified in the Petition, Petitioner requested a copy of any records that "had been submitted" to the [B]oard pertaining to scores as part of a rule change. The representative of the Board repeated that nothing had gone before the Board pertaining to applicants sitting for the "Intern Test or the PE Exam."

5. The Florida Administrative Weekly dated October 10, 2003, contains a proposed change to Florida Administrative Code Rule 61G15-21 that is directly related to Petitioner's "public information request." Petitioner believes that the Board had to approve the rule change before the Board advertised it on October 10, 2003, and that the previous denials by the Board's representative constituted "unethical" conduct. Petitioner requested a public hearing pursuant to the advertisement in the Florida Administrative Weekly on October 10, 2003, but doubts if the Board will comply with the "Florida Administrative Laws" based on what Petitioner believes to be the Board's "previous unethical behavior."

6. The Board may be "in violation of The Florida Sunshine Law and the Florida Administrative Laws." The behavior of the Board's representative "in trying to deceive" Petitioner on this issue is "certainly a red flag" and indicates a necessity to notify all previous testing applicants to make sure they are aware of the proposed rule change before adoption. The Florida Administrative Weekly alone is not "a well read media for the general [sic] affected masses."

7. Florida law states that any substantially affected person may seek an administrative determination of the invalidity of a proposed rule by filing with DOAH a petition seeking such a determination within 21 days after the date of publication of the notice required by Chapter 120, Florida Statutes (2003). Petitioner timely filed a petition challenging the proposed change to an existing rule.

8. Petitioner believes the term "substantial" denotes "having a reasonable basis in law and fact" and that the term "reasonable" denotes "that which is fair, proper or moderate under the circumstances." Petitioner believes it is Respondent's "negligence in complying with FS 120, FS 119 that gives Petitioner standing in this case."

9. Petitioner made a "public information request" sometime in July 2003. Respondent did not provide the information in the months of August and September 2003.

10. In September 2003, Respondent requested Petitioner to pay $90.00 for release of part of the information requested by Petitioner. The information Respondent agreed to release included: statistical data broken down by race and sex identifying each applicant by assigned number and a list of the "number of applicants" who sat for the past five professional engineer exams; the number of times "testees" took the test; raw and converted scores; the "city of the testees"; and the race and sex of the "testees."

11. When Respondent requested the payment of $90.00, Respondent failed to disclose that Respondent would not release all of the requested information. Respondent did not release the "testees' candidate numbers." There may be no statutory exemption for "testees' candidate numbers."

12. Petitioner believes Respondent violated Chapter 119, Florida Statutes (2003), by exceeding the statutory time limit for releasing public records and by not releasing all of the information that Petitioner requested. Petitioner believes that Petitioner is entitled to all of the information she requested, asserts that it is a misdemeanor to violate Chapter 119, Florida Statutes (2003), and alleges that such a violation is grounds for removal or impeachment.

13. Petitioner believes Respondent failed to grant Petitioner a public hearing in violation of applicable

    rulemaking procedures. During a conversation with a representative for Respondent concerning Petitioner's request for information, the representative failed to advise Petitioner of the proposed rule change advertised in the Florida Administrative Weekly on October 10, 2003. If the proposed rule change were adopted, "without credibly addressing the remaining issues of Petitioner's public records request," there may be no further opportunity to retrieve the data now in the possession of Respondent.

14. Respondent accepted payment for the requested data, cashed Petitioner's check, and "arrogantly" released what information Respondent felt Petitioner should have. Counsel for Respondent advised Petitioner that Respondent would not cash Petitioner's check, but would return the check to Petitioner. Counsel for Respondent also threatened in a telephone conversation to advise Respondent not to grant the request and to require Petitioner to come to Florida and "go through the records" herself.

15. Petitioner requested counsel for Respondent to put the requested information in "chart form." Counsel stated he would not advise Respondent to place the information in any particular format. Counsel was "extremely hostile and arrogant" and "later apologized for his behavior." However, Petitioner believes

    counsel for Respondent is "extremely hot tempered with certain people."

16. Counsel for Respondent stated to Petitioner that Respondent would release the information "just as it is" in Respondent's database, and Petitioner could then put the information in any format she desired. That is "exactly what Respondent did. The information was extremely fragmented and difficult to read." Respondent had "no credible basis" for denying Petitioner the requested information. Petitioner believes that Respondent's action, "at best was deceptive and nonresponsive to Petitioner's inquiry."

17. The trier of fact cannot summarize the next assumptive finding from Petitioner's response to the Motion to Dismiss, but must quote from the response.

    On October 16, 2003, Petitioner asked [Respondent's representative] via e-mail for the immediate release of all data whether electronic or written or telephonic messaging; and any and all communications between staff, and any other entity, person, corporation, business, governmental agency relative to the proposed change of scores, etc. Identify the date of origination of the proposed rule change and the reason for the proposed change. Please indicate any Board action on this issue and the date of Board action. Please include any supportive reports or data submitted to the Board to support or necessitate the need for a change in policy. Lastly, will the legislature need to act on your proposed rule change? As the e-mails will illustrate [the representative] continued to deny that any

    rule change existed pertaining to the very same public records request by Petitioner. The actions of [the representative] breached the public trust [and] eroded the fiber of 'ethics' in government. When Petitioner found the proposed rule change in the October 10, 2003, issue of the Administrative Weekly, [the representative] was listed as the contact person.

    
    

18. Petitioner believes Chapter 120, Florida Statutes (2003), creates a two-pronged right to participation in the rulemaking process, i.e., "those [at] whom the intended action is directed and those who may just be affected by the new rule." Rulemaking procedures require notice to all persons named in the rule and to all persons who have timely requested notice.

19. Respondent conducted its "rule change meeting in a closed meeting not open to the public." The records of that meeting are not available to the public.

20. The Florida Administrative Weekly is not a well read publication for the "affected parties, directly affected parties, or the intended target parties." Therefore, Petitioner believes "in the spirit of open government, Respondents [sic] failed to meet the standard."

    CONCLUSIONS OF LAW

    
    

21. DOAH has jurisdiction over the parties. § 120.56, Fla. Stat. (2003). However, DOAH does not have subject matter jurisdiction because Petitioner lacks standing to challenge the proposed change to Florida Administrative Code Rule 61G15-21.

22. In the administrative arena, standing has been equated with subject matter jurisdiction. Grand Dunes, Ltd. v. Walton

    County, 714 So. 2d 473, 475 (Fla. 1st DCA 1998). Petitioner must establish that the proposed change to an existing rule would cause her to suffer an "injury in fact" and that the interest she seeks to protect is within the "zone of interest" sought to be protected by the statutory provisions to be implemented by the proposed change. All Risk Corporation of Florida v. State, Department of Labor and Employment Security,

    413 So. 2d 1200, 1202 (Fla. 1st DCA 1982). See also Agrico Chemical Co. v. Department of Environmental Regulation, 406 So. 2d 478, 482 (Fla. 2d DCA 1981); Florida Department of Offender Rehabilitation v. Jerry, 353 So. 2d 1230 (Fla. 1st DCA 1978).

23. Petitioner failed to establish that she has suffered any "injury in fact" from the proposed change to an existing rule. There is no basis for finding that Respondent relied on an, as yet, unadopted proposed change to an existing rule as a basis for denying the public records request that Petitioner submitted pursuant to Chapter 119, Florida Statutes (2003).

24. Petitioner does not quote or summarize the offending provisions in the proposed changes that allegedly caused Petitioner to suffer an injury in fact. Petitioner did not provide the trier of fact with a copy of the proposed changes to the existing rule and did not cite to those provisions that

    Respondent relied on to deny Petitioner's public records request.

25. If it were found that Respondent relied on the proposed change to an existing rule to deny Petitioner's public records request and that Petitioner suffered an injury in fact, there is no basis for finding that the injury is of sufficient immediacy to imbue Petitioner with standing to challenge the proposed change to an existing rule. If it were found that Respondent did so, there is no basis for finding that the proposed change to an existing rule expands the statutory authority in Chapter 119, Florida Statutes (2003), for exemptions from the definition of public records.

26. There may, or may not, be a sufficient basis for finding that Petitioner established that she suffered an injury in fact from Respondent's denial of a public records request in violation of Chapter 119, Florida Statutes (2003). If that were so, the interest Petitioner seeks to protect may be within the "zone of interest" sought to be protected by relevant statutory provisions in Chapter 119, Florida Statutes (2003).

27. There is no basis for a finding that Petitioner is now or ever has been a candidate for either the professional engineer or intern examination. Accordingly, there is no basis for a finding that the interest Petitioner seeks to protect is within the "zone of interest" sought to be protected by the

    statutory provisions implemented by the proposed rule change. See Agrico Chemical Co. v. Department of Environmental

    Regulation, 406 So. 2d 478, 482 (Fla. 2d DCA 1981); see also Ward v. Board of Trustees of the Internal Improvement Trust Fund, 651 So. 2d 1236 (Fla. 4th DCA 1995); Florida Society of Opthamology v. State, Board of Optometry, 532 So. 2d 1279, 1285 (Fla. 1st DCA 1988); Village Park v. State, Department of Business Regulation, 506 So. 2d 426, 430 (Fla. 1st DCA 1987); Florida Medical Association v. Department of Professional Regulation, 426 So. 2d 1112, 1117 (Fla. 1st DCA 1983).

28. Petitioner failed to assert any basis for standing other than an injury caused by an alleged violation of Chapter 119, Florida Statutes (2003). Petitioner failed to provide a preliminary factual basis to support a finding that Petitioner is substantially affected by the proposed change to Florida Administrative Code Rule 61G15-21. St. Johns River Water Management District v. Consolidated-Tomoka Land Co., 717 So. 2d 72, 76 (Fla. 1st DCA 1998). There is no basis to support a finding that Petitioner has standing to initiate this proceeding or that DOAH has jurisdiction to proceed further.

29. If it were found that the Motion to Dismiss should not be granted, the Alternative Motion for Summary Final Order is granted. Respondent properly requested a summary final order in

    accordance with Subsection 120.57(1)(h), Florida Statutes (2003).

30. In relevant part, Subsection 120.57(1)(h), Florida Statutes (2003), provides:

    Any party to a proceeding in which an administrative law judge . . . has final order authority may move for a summary final order when there is no genuine issue as to any material fact. A summary final order shall be rendered if the [ALJ] determines

    . . . that no genuine issue as to any material fact exists and that the moving party is entitled as a matter of law to the entry of a final order. A summary final order shall consist of findings of fact, if any, [and] conclusions of law. . . .

    (emphasis supplied)

    
    

31. Respondent properly moved for a summary final order.

The ALJ determined there is no genuine disputed issue of fact concerning Petitioner's standing to initiate a challenge to the proposed change to an existing rule. There is no basis to support a finding that Petitioner has standing to challenge the proposed change to Florida Administrative Code Rule 61G15-21.

ORDER

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

ORDERED that this case is dismissed with prejudice for lack of jurisdiction or, alternatively, the motion for summary final order is granted. The administrative hearing scheduled for January 28, 2004, is cancelled.

DONE AND ORDERED this 17th day of December, 2003, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 17th day of December, 2003.

COPIES FURNISHED:

Nancy P. Campiglia, Esquire Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

Helen Evans

606 West Lee Street

Mebane, North Carolina 27302

Paul J. Martin, Esquire Office of the Attorney General The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Douglas Sunshine, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and

Professional Regulation 2507 Callaway Road

Tallahassee, Florida 32303-5267

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: 03-004035RP

Orders for Case No: 03-004035RP