07-004614RX National Foundation To Prevent Child Sexual Abuse, Inc. vs. Department Of Law Enforcement Status: Closed DOAH Final Order on Tuesday, October 23, 2007.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATIONAL FOUNDATION TO PREVENT )

CHILD SEXUAL ABUSE, INC., )

)

Petitioner, )

)

vs. ) Case No. 07-4614RX

)

FLORIDA DEPARTMENT OF LAW ENFORCEMENT, )

)

)

Respondent. )

)

FINAL ORDER

On October 9, 2007, a Petition Seeking an Administrative

Determination of the Invalidity of an Existing Rule was filed at

the Division of Administrative Hearings and the hearing was

scheduled for October 29, 2007. Petitioner is challenging the

existing Florida Administrative Code Rule 11C-6.004(3)(b) which

prescribes fees for the Florida Department of Law Enforcement to

charge for requested criminal records.

Florida Administrative Code Rule 11C-6.004(3)(b)states:

(b) As provided in subsection 943.053(3),

F.S., a processing fee of $23 shall be

charged for each subject inquired upon under

paragraphs (2)(d) through (f), except that a

fee of $8 shall be charged for each subject

inquired upon for vendors of the Department

of Children and Family Services, the

Department of Juvenile Justice, and the

Department of Elderly Affairs; a fee of $15

shall be charged for each subject inquired

upon pursuant to a state criminal history

record check required by law to be performed

by the Department of Agriculture and Consumer

Services; a fee of $18 shall be charged for

each volunteer subject inquired upon under

the National Child Protection Act of 1993, as

amended; and no fee shall be charged for

Florida criminal history information or

wanted person information requested by the

state offices of the Public Defender. If the

Executive Director of the Department

determines that conducting the record check

would be in the interest of law enforcement

or criminal justice or that good cause

otherwise exists, the prescribed fee may be

waived or reduced, as provided in subsection

943.053(3), F.S.

In the Petition, Petitioner identifies the following

portion of the rule that is being specifically challenged: "a

processing fee of $23 shall be charged for each subject inquired

upon" and additionally specifies that "a fee of $18 shall be

charged for each volunteer subject inquired upon under the

National Child Protection Act of 1993, as amended."

Respondent filed a Motion for Summary Final Order or to

Dismiss Petition Seeking an Administrative Determination of the

Invalidity of an Existing Rule (Motion) on October 17, 2007.

Petitioner filed a Response to Respondent's Motion on

October 18, 2007. Respondent filed a Reply to Petitioner's

Response to the Motion on October 19, 2007. Petitioner filed

Petitioner's Response to Respondent's Reply to the Motion on

October 22, 2007.

This cause having come before the undersigned on

October 22, 2007, for motion hearing in the matter of the

Respondent's Motion for Summary Final Order or To Dismiss

Petition Seeking an Administrative Determination of the

Invalidity of an Existing Rule. The parties argued their

positions at the Motion hearing.

After the Motion hearing, each party filed additional

pleadings. On October 22, 2007, Respondent filed Respondent's

Response to and Rebuttal of Petitioner's Allegation that

Respondent has Misrepresented the Truth in this Proceeding. On

October 23, 2007, Petitioner filed Petitioner's Response to

Respondent's Response to and Rebuttal of Petitioner's Allegation

that Respondent has Misrepresented the Truth in this Proceeding.

Section 943.053(3)(b), Florida Statutes (2007), states:

(b) The fee per record for criminal history

information provided pursuant to this

subsection is $23 per name submitted, except

that the fee for vendors of the Department of

Children and Family Services, the Department

of Juvenile Justice, and the Department of

Elderly Affairs shall be $8 for each name

submitted; the fee for a state criminal

history provided for application processing

as required by law to be performed by the

Department of Agriculture and Consumer

Services shall be $15 for each name

submitted; and the fee for requests under the

National Child Protection Act shall be $18

for each volunteer name submitted. The state

offices of the Public Defender shall not be

assessed a fee for Florida criminal history

information or wanted person information.

Florida Administrative Rule 11C-6.004(3)(b) is a

reiteration of what is in Section 943.053, Florida Statutes, and

the wording of both the rule and statute are almost identical.

Upon consideration and the undersigned being fully advised,

the undersigned concludes that no genuine issue as to any

material fact exists. Petitioner's assertions that the matters

of whether a state criminal record check is required, how costly

it is to produce the records, how the amount of the cost is

determined, the inflation of the fees and surplus of monies are

immaterial since the fees are prescribed by law. Mandates by

law, such as fees in this matter, are only within the

legislature's purview and any change in law must be addressed by

the legislature. Section 943.053, Florida Statutes (2007), sets

forth specific fees that must be charged for records regardless

of the cost to the agency.

It is, therefore,

ORDERED that:

1. The motion is hereby granted, and the final hearing in

this cause scheduled for October 29, 2007, is hereby canceled.

2. The file of the Division of Administrative Hearings in

the above-captioned matter is hereby closed and the case is

dismissed.

DONE AND ORDERED this 23rd day of October, 2007, in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of October, 2007.

COPIES FURNISHED:

Jody A. Gorran

6019 Via Venetia South

Delray Beach, Florida 33484

John P. Booth, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Scott Boyd, Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Gerald M. Bailey, Commissioner

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

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 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.