08-003496RP Center For Education Advocacy, Inc., Rosemary N. Palmer, And Donna Lorman vs. State Board Of Education And Department Of Education Status: Closed DOAH Final Order on Wednesday, September 10, 2008.

Summary: Petitioners failed to timely challenged proposed rules. The petition exceeded statutory time guidelines for filing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CENTER FOR EDUCATION ADVOCACY, )

INC., ROSEMARY N. PALMER, AND )

DONNA LORMAN, )

)

Petitioners, )

)

vs. ) Case No. 08-3496RP

)

STATE BOARD OF EDUCATION AND )

DEPARTMENT OF EDUCATION, )

)

Respondents. )

)

FINAL ORDER DISMISSING CHALLENGE

TO PROPOSED RULES

A final hearing was not conducted in this case.

APPEARANCES

For Petitioners: Michael L. Boswell, Esquire

All Florida Firm Legal Clinic

813 Deltona Boulevard, Suite A

Deltona, Florida 32725

For Respondents: Steven S. First, Esquire

Florida Department of Education

325 West Gaines Street

Tallahassee, Florida 32399-0400

T. Willard Fair, Chairman

State Board of Education

325 West Gaines Street, Suite 1514

Tallahassee, Florida 32399-0400

STATEMENT OF THE ISSUE

Whether the Respondents' Motion to Dismiss should be

granted.

PRELIMINARY STATEMENT

The Petitioners filed a challenge to the agency's proposed

rules 6A-6.03028, 6A-6.03311, 6A-6.03312, and 6A-6.03411 on

July 18, 2008. The case was scheduled for final hearing for

August 14-15, 2008. The Unopposed Motion for Continuance was

granted and the hearing was canceled and rescheduled for

October 8-10, 2008.

On July 29, 2008, the Respondents filed a Motion to Dismiss

that alleged the challenge to the proposed rules was not timely

filed. The Response in Opposition to Motion to Dismiss (filed

August 11, 2008), the comments of counsel, and the responses to

the Request for Admissions have been fully considered.

FINDINGS OF FACT

1. The Petitioners did not timely file the challenge to

proposed rules.

2. The Petitioners admit they were aware of the rule-

making process and did not challenge the proposed rules within

the statutory time guidelines.

3. The date of publication (as corrected) was May 30,

2008. The date of the rule challenge filing was July 18, 2008.

4. The date of the final public hearing was June 17, 2008.

The rule challenge was not filed within ten days of this date.

CONCLUSIONS OF LAW

3. Section 120.56(2)(a), Florida Statutes, states, in

part:

(2) CHALLENGING PROPOSED RULES; SPECIAL

PROVISIONS.- -

(a) Any substantially affected person may

seek an administrative determination of the

invalidity of any proposed rule by filing a

petition seeking such a determination with

the division within 21 days after the date

of publication of the notice required by s.

120.54(3)(a), within 10 days after the final

public hearing is held on the proposed rule

as provided by s. 120.54(3)(c), within 20

days after preparation of a statement of

estimated regulatory costs required pursuant

to s. 120.541, if applicable, or within 20

days after the date of publication of the

notice required by s. 120.54(3)(d). The

petition shall state with particularity the

objections to the proposed rule and the

reasons that the proposed rule is an invalid

exercise of delegated legislative authority.

4. Petitions challenging a proposed rule must be filed

with the Division of Administrative Hearings "within 21 days

after the date of publication of the notice required by Section

(2008).

5. The Petitioners admit in paragraphs 2 and 3, on page 2

of the Petition, that publication of the Notice of Proposed

Rulemaking occurred on May 23, 2008, and was corrected on

May 30, 2008. The Petitioners further admit in paragraph 3, on

page 7 of the Petition, that they received notice of these

publications.

6. The Notices of Proposed Rulemaking are required by

Section 120.54(3)(a), Florida Statutes.

7. The 21-day filing deadline set forth in the statute is

jurisdictional and cannot be waived by the Division of

Administrative Hearings.

8. Section 120.56(2)(c), Florida Statutes, allows a

challenge to a proposed rule to be filed "within 10 days after

the final public hearing is held on the proposed rule as

provided by Section 120.54(3)(c), Florida Statutes." The

Petitioners also did not meet or comply with this deadline.

ORDER

Based on the foregoing, the Petitioners' challenge to the

proposed rules is dismissed.

DONE AND ORDERED this 10th day of September, 2008, in

Tallahassee, Leon County, Florida.

J. D. PARRISH

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 10th day of September, 2008.

COPIES FURNISHED :

Michael L. Boswell, Esquire

All Florida Firm Legal Clinic

813 Deltona Boulevard, Suite A

Deltona, Florida 32725

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Steven S. Ferst, Esquire

Florida Department of Education

325 West Gaines Street

Tallahassee, Florida 32399-0400

T. Willard Fair, Chariman

State Board of Education

325 West Gaines Street, Suite 1514

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

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.