87-002621RX Economic Research Services vs. Central Florida Community College
 Status: Closed
DOAH Final Order on Friday, October 2, 1987.


View Dockets  
Summary: Portion of rule establishing charge of 25 cents for first nine photocopies is invalid; challenged rules otherwise not shown to be invalid.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ECONOMIC RESEARCH SERVICES , )

12)

13Petitioner , )

15)

16vs. ) CASE NOS. 87-2621RX

21) 87-2623RX

23CENTRAL FLORIDA COMMUNITY )

27COLLEGE, )

29)

30Respondent. )

32__________________________________)

33FINAL ORDER

35Pursuant to notice, a formal hearing was conducted in these consolidated

46cases in Tallahassee, Florida, on July 14, 1987, before Michael M. Parrish, a

59duly designated Hearing Officer of the Division of Administrative Hearings. At

70the hearing the parties were represented as follows:

78For Petitioner: Mr. H. C. "Hy" Jensen

85Economic Research Services

882014 Northeast Ninth Street

92Ocala, Florida 32670

95For Respondent: Brian D. Lambert, Esquire

101SAVAGE, KRIM, SIMONS,

104FULLER & ACKERMAN, P.A.

108121 Northwest Third Street

112Ocala, Florida 32670

115BACKGROUND AND ISSUES

118These are two consolidated rule challenge cases in which the Petitioner has

130challenged two of the Respondent's promulgated rules as being invalid exercises

141of delegated legislative authority. The Petition in Case No. 87-2621RX

151challenges Respondent's Rule 6Hx3:5-43, which deals with access to public

161records and obtaining copies of public records. The rule is challenged on the

174grounds that it has an inadequate economic impact statement, as well as on

187substantive grounds. The Petition in Case No. 87-2623RX challenges Respondent's

197Rule 6Hx3:7-26, which deals with competitive bidding. The rule is challenged on

209the grounds that it has an inadequate economic impact statement, as well as on

223other procedural grounds.

226At the close of the hearing, the parties were granted ten (10) days within

240which to file proposed final orders. The Petitioner waived the right to file

253proposed final orders and elected to rely on documents previously filed. The

265Respondent filed proposed final orders in both cases. The substance of all of

278the findings of fact proposed by the Respondent has been included in the

291findings of fact which follow.

296FINDINGS OF FACT

299Based on the stipulation of the parties, the exhibits received in evidence,

311and the testimony of the witnesses at the hearing, I make the following findings

325of fact.

327Stipulated findings concerning

330CFCC Rule 6Hx3:5-43

3331. H. C. "Hy" Jensen, as the owner and operator of Economic Research

346Services, licensed to do business as a research and management consultant firm,

358has a substantial interest in the access to and the costs for reproduction of

372public records, documents, rules, orders, and subject matter indexes in the

383custody of the District Board of Trustees of Central Florida Community College.

3952. The District Board of Trustees of Central Florida Community College

406(the Board) is an "agency" as defined by Sections 119.011(2) and 120.52(1),

418Florida Statutes, and, as such, is governed by and must comply with Chapters 119

432and 120, Florida Statutes.

4363. The Board initially adopted Rule 6Hx3 :1-04, November 19, 1986, and

448renumbered it as Rule 6Hx3:5-43, June 10, 1987.

4564. Rule 6Hx3 :5-43 is the Board's statement of policy governing access to

469and fees charged for duplicating copies of public records.

4785. Prior to the adoption, amendment, or repeal of any rule, the Board is

492required to prepare a detailed economic impact statement, as described in

503Section 120.54(2)(b), Florida Statutes.

5076. The detailed economic impact statement is a public record as defined by

520Section 119.011(1), Florida Statutes, and, as such, must be made available for

532public inspection and examination immediately upon giving public notice of the

543Board's intent to adopt, amend, or repeal a rule.

5527. The economic impact statement pertaining to Rule 6Hx3:1-04 (now 6Hx3:5-

56343) was not available for public inspection and examination as required by

575Section 119.07(1)(a), Florida Statutes, and Rule 28-3.027, Model Rules of

585Procedure, Florida Administrative Code.

5898. The Board had not declared an emergency to justify its failure to

602prepare the required detailed economic impact statement.

6099. Prior to the adoption, amendment, or repeal of any rule, the Board is

623required to give public notice of its intended action and include information

635specified by Section 120.54(1), Florida Statutes. In addition to other factors,

646the notice must include a summary of the estimate of economic impact on all

660persons affected by the rule.

66510. Although it did not prepare the required detailed economic impact

676statement, the Board nevertheless published a public notice of its intent to

688adopt Rule 6Hx3:5-43. The published notice included an alleged summary of the

700economic impact statement.

70311. The Board's public notice asserted the rule: "Will provide a nominal

715income to the college to help offset cost incurred in reproducing or collecting

728information for individuals or companies."

73312. The Board's unnumbered second paragraph of Rule 6Hx3:5-43 exempts from

744public access all documents within employee personnel records by stating:

"754The provisions of the above paragraph shall

761not apply to such matters as student records,

769personnel records and other matters exempt

775from the definition of public records or

782otherwise confidential under Florida Law."

787Other findings concerning CFCC

791Rule 6Hx3: 5-43

79413. On or about July 28, 1986, the Petitioner sent a letter to Mr. Max O.

810Curry, Dean of Administration for the Respondent, in reference to the

821Petitioner's computations as to the cost for reproduction of certain copies of

833records. The purpose of the letter was to assist the Respondent in formulating

846a rule as to the cost to charge the public for reproduction of records. Max O.

862Curry and Jan Harris considered the information in Petitioner's letter of July

87428, 1986, prior to the promulgation of the challenged rule.

88414. Prior to the adoption of the challenged rule, the Respondent did not

897technically comply with Section 120.54(2)(b), Florida Statutes, in that it did

908not prepare a detailed economic impact statement, although it did consider the

920economic impact of adopting this rule prior to the actual adoption and stated an

934estimate of that economic impact in the notice of meeting published on November

9476, 1986.

94915. The opening paragraph of Rule 6Hx3:5-43 states, in essence, that

960records of the Respondent are open to the public. Tne second paragraph of the

974rule reads as follows:

978The provisions of the above paragraph shall

985not apply to such matters as student records,

993personnel records and other matters exempt

999from the definition of public records or

1006otherwise confidential under Florida Law.

101116. The fourth paragraph of Rule 6Hx3:5-43 reads as follows:

1021In the event that the College is required to

1030provide a photographic copy, the person

1036desiring the same shall pay to the College a

1045charge for making such copy or copies, the

1053amounts prescribed as follows:

10571. 25 cents per page for nine (9) pages

1066(copies) or less.

10692. 10 cents per page for all pages (copies)

1078beyond nine (9).

10813. If the nature or volume of public

1089records requested to be inspected,

1094examined or copies (sic) pursuant to

1100the Rule, is such as to require

1107extensive use of information technology

1112resources or extensive clerical or

1117supervisory assistance by College

1121personnel, or both, the College shall

1127charge an additional special service

1132charge based upon the cost incurred

1138for such extensive use of information

1144technology resources and/or the labor

1149cost of the personnel providing

1154the service.

1156Stipulated findings concerning CFCC

1160Rule 6Hx3:7-26

116217. H. C. "Hy" Jensen, as owner and operator of Economic Research Services,

1175licensed to do business as a research and management consultant firm, is a

1188provider of contractual services as defined in Section 287.012(4)(a), Florida

1198Statutes, and, as such, has substantial interest in the procurement policies of

1210the District Board of Trustees of Central Florida Community College.

122018. The District Board of Trustees of Central Florida Community College

1231(the Board) is an "agency" as defined by Sections 119.011(2) and 120.52(1),

1243Florida Statutes, and as such, is governed by and must comply with Chapters 119

1257and 120, Florida Statutes.

126119. Rule 6Hx3 :7-26 is the Board's statement of policy governing

1272procurement of contractual services.

127620. The Board amended rule 6Hx3 :7-26 on June 10, 1987. Prior to this

1290amendment, Rule 6Hx3:7-26, revised February 1, 1984, required a minimum of three

1302formal written bids for any procurement of contractual services exceeding

1312$3,000.

131421. During its meeting of June 10, 1987, the Board amended its proposed

1327revision by inserting a provision into the rule which excludes all providers of

1340contractual services from the competitive bidding process.

134722. Prior to the adoption, amendment, or repeal of any rule, the Board is

1361required to prepare detailed economic impact statement, as described in Section

1372120.54(2)(b), Florida Statutes.

137523. The detailed economic impact statement is a public record as defined

1387by Section 119.011(1), Florida Statutes, and, as such, must be made available

1399for public inspection and examination immediately upon giving public notice of

1410the Board's intent to adopt, amend, or repeal a rule.

142024. Prior to its amendment of Rule 6Hx3:7-26 on June 10, 1987, the Board

1434failed to prepare the detailed economic impact statement required by Section

1445120.54(2)(b), Florida Statutes.

144825. Consequently, the economic impact statement pertaining to Rule 6Hx3:7-

145826 was not available for public inspection and examination as required by

1470Section 119.07(1)(a), Florida Statutes, and Rule 28-3.027, Model Rules of

1480Procedure, Florida Administrative Code.

148426. The Board had not declared an emergency to justify its failure to

1497prepare the required detailed economic impact statement.

150427. Prior to the adoption, amendment, or repeal of any rule, the Board is

1518required to give public notice of its intended action and include information

1530specified by Section 120.54(1), Florida SLatutes. In addition to other factors,

1541the notice must include a summary of the estimate of economic impact on all

1555persons affected by the rule.

156028. Although it did not prepare the required detailed economic impact

1571statement, the Board nevertheless published a public notice to amend Rule

15826Hx3 :7-26. The published notice included an alleged summary of the detailed

1594economic impact statement asserting that the Board anticipated no economic

1604impact by its amendment of this rule.

161129. Additionally, the Board's published notice did not inform the public

1622of its intent to amend the rule to exclude all providers of contractual services

1636from the competitive bidding process.

1641Other findings concerning CFCC

1645Rule 6Hx3 :7-26

164830. Rule 6Hx3:7-26 requires, among other things that the Respondent obtain

1659a minimum of three written bids for purchases from $3,501 to $5,000, and that

1675Respondent publicly advertise all purchases exceeding $5,000, as well as obtain

1687a minimum of three formal, written bids for such purchases. The rule also

1700contains several specific exceptions to the three-bid requirement. The

1709exception challenged by the Petitioner reads as follows:

1717Professional services, including, but not

1722limited to, attorneys, auditors, management

1727consultants, architects, engineers, and land

1732surveyors. Services of architects,

1736engineers, and land surveyors shall be

1742selected and negotiated according to Section

1748287.055, Florida Statutes.

175131. The exception quoted immediately above was added to the language of

1763rule during the course of the public hearing on the rule amendments, which

1776hearing was conducted by Respondent's District Board of Trustees on June 10,

17881987. The addition of the language quoted immediately above was made on the

1801advice of the Respondent's legal counsel, Gary C. Simons, which advice was

1813communicated to the Trustees during the course of the public meeting on June 10,

18271987.

182832. Although the original proposed amendments to Rule 6Hx3 :7-26 did not

1840include the above-quoted exception challenged by Petitioner, the proposed rules

1850of the college are subject to being changed or further amended as a result of

1865input at public meetings and hearings, as the purpose of public meetings and

1878hearings on proposed rules is to receive input prior to the final adoption of a

1893rule. The public meeting on the subject rule was properly noticed in a local

1907newspaper and the Petitioner attended and participated in the meeting. The

1918published notice stated that the purpose and effect of the revised Rule 6Hx3 :7-

193226 was to update the rule to include the latest limitations in bidding

1945requirements found in State Board of Education rules.

195333. Rule 6Hx3:7-26, as finally adopted by the Respondent, including the

1964above-quoted exception language challenged by the Petitioner, is substantially

1973similar to the State Board of Community College Rule 6A-14.0734 regarding

1984bidding requirements imposed on community colleges, and the specific complained

1994of language quoted above is identical to State Board of Community College Rule

20076A-14.0734(2)(g).

2008CONCLUSIONS OF LAW

201134. Based on the foregoing findings of fact and on the applicable legal

2024principles, I make the following conclusions of law.

203235. The Division of Administrative Hearings has jurisdiction over the

2042parties to and the subject matter of these consolidated cases. Sec. 120.56,

2054Fla. Stat.

205636. The parties have stipulated that the Petitioner's substantial

2065interests are affected by both of the challenged rules and that he has standing

2079to challenge the rules.

208337. Section 119.07(1)(a), Florida Statutes, reads as follows in pertinent

2093part:

2094The custodian shall furnish a copy or a

2102certified copy of the record upon payment of

2110the fee prescribed by law or, if a fee is not

2121prescribed by law, upon payment of the actual

2129cost of duplication of the record. The

2136phrase "actual cost of duplication" means the

2143cost of the material and supplies used to

2151duplicate the record, but it does not include

2159the labor cost or overhead cost associated

2166with such duplication.

216938. Section 119.07(1)(b), Florida Statutes, reads as follows, in pertinent

2179part:

2180If the nature or volume of public records

2188requested to be inspected, examined, or

2194copied pursuant to this subsection is such as

2202to require extensive use of information

2208technology resources or extensive clerical or

2214supervisory assistance by personnel of the

2220agency involved, or both, the agency may

2227charge, in addition to the actual cost of

2235duplication, a special service charge, which

2241shall be reasonable and shall be based on the

2250cost incurred for such extensive use of

2257information technology resources or the labor

2263cost of the personnel providing the service

2270that is actually incurred by the agency or

2278attributable to the agency for the clerical

2285and supervisory assistance required, or both.

229139. The portion of Rule 6Hx3:5-43 which addresses extensive use of

2302information technology resources or extensive clerical or supervisory assistance

2311in providing records is, in essence, a paraphrase of the statutory provision

2323quoted immediately above. It contains no provisions inconsistent with the

2333statutory provision. Accordingly, there is no basis upon which to conclude that

2345that portion of the rule is invalid.

235240. The portion of Rule 6Hx3:5-43 which sets charges of 25 cents and 10

2366cents for the making of copies of public records in quite another matter. There

2380is no persuasive competent substantial evidence in the record to support a

2392conclusion that the rule-established charges of 25 cents for each of the first

2405nine copies and 10 cents for each additional copy bears any rational

2417relationship to the Respondent's "actual cost of duplication." Similarly, the

2427evidence fails to show that the Respondent conducted any reliable study or

2439inquiry to determine its "actual cost of duplication." Rather, the charges

2450established in the rule appear to be arbitrary and capricious, and thus invalid.

246341. The Petitioner has also challenged Rule 6Hx3 :5-43 on the grounds that

2476the second paragraph of the rule impermissibly limits access to all personnel

2488files. Petitioner's contentions in this regard are not persuasive. While the

2499second paragraph of the subject rule is not a model of clarity, in view of the

2515provisions of Section 240.337, Florida Statutes, the language of the second

2526paragraph of the rule is susceptible of interpretation and application in a

2538manner consistent with the provisions of both Chapter 119, Florida Statutes,

2549which allows access to most records, and Section 240.337, Florida Statutes,

2560which limits access to certain personnel records. Thus, while the second

2571paragraph would benefit from some further editorial revision, it cannot be said

2583that it is invalid in its present form.

259142. Because of the invalidity of the portion of Rule 6Hx3: 5-43 which

2604sets charges for copies, there is no need to dwell upon the Petitioner's

2617challenge to the rule's economic impact statement. Suffice it to say that a

2630reliable study or inquiry to determine the Respondent's "actual cost of

2641duplication" will in all probability generate the type of information from which

2653an adequate economic impact statement can be formulated.

266143. Turning now to the Petitioner's challenge to Rule 6HX3 :7-26, a major

2674basis for challenge to the rule is that language was added to it during the

2689rule-making hearing, which language did not appear in the version of the

2701proposed rule which was published prior to the rule-making hearing. In this

2713regard, attention must be directed to Section l20.54(l3)(b), Florida Statutes,

2723which provides in pertinent part: "After the notice required in subsection (1)

2735and prior to adoption, the agency may withdraw the rule in whole or in part or

2751may make such changes in the rule as are supported by the record of public

2766hearings held on the rule. . . . " The quoted language clearly contemplates the

2780making of changes on the basis of matters presented at the public hearing on the

2795rule; the very purpose of the rule-making hearings being to afford the

2807interested public an opportunity to try to persuade the agency to change the

2820proposed rule. The challenged change being one which is supported by the record

2833of the public hearing on the rule, there is no basis upon which to find that

2849portion of the rule invalid.

285444. The Petitioner also challenges Rule 6Hx3:7-26 on the grounds that it

2866fails to contain a legally sufficient economic impact statement. There is no

2878doubt that the economic impact statement of Rule 6Hx3:7-26 falls far short of

2891the specific statutory requirements of Section 120.54(2)(b), Florida Statutes.

2900But those deficiencies are not necessarily fatal to the validity of the rule.

2913The consequences of a deficient economic impact statement were addressed as

2924follows in Department of Health and Rehabilitative Services v. Wright, 439 So.2d

2936937 (Fla. 1st DCA 1983):

2941[T]he Florida Supreme Court has observed that

"2948[t]he procedure envisioned by section

2953120.54(2)(a) does not . . . command

2960adherence to form over substance." Id.

2966Moreover, although section 120.54(2) Thas

2971amended in 1978 to provide that an agency's

2979failure to include within its rule an

"2986adequate" statement of economic impact is

2992grounds for invalidation of the rule, that

2999provision does not require perfection but

3005only "substantial compliance" with section

3010120.54(2)(a). Id. As the preparation of a

3017statement of economic impact "is a

3023procedural aspect of an agency's

3028rulemaking authority," it is subject to the

"3035statutory harmless error rule" of section

3041120.68(8), Florida Statutes, which provides

3046for remand only where a material error in

3054procedure in an administrative proceeding

3059impairs the fairness of the proceedings or

3066the correctness of the action taken. Polk v.

3074School Board of Polk County, 373 So.2d 960,

3082962 (Fla. 2d DCA 1979); School Board of

3090Broward County v. Gramith, 375 So.2d 340

3097(Fla. 1st DCA 1979); Plantation Residents'

3103Association, Inc. v. School Board of Broward

3110County, 424 So.2d 879, 881 (Fla. 1st DCA

31181982). Thus, the absence or insufficiency of

3125an economic impact statement is harmless

3131error if it is established that the proposed

3139action will have no economic impact, i.e. by

3147its merely implementing already established

3152procedures, or if it is shown that the agency

3161fully considered the asserted economic

3166factors and impact. Division of Workers'

3172Compensation v. McKee, 413 So.2d 805, 806

3179(Fla. 1st DCA 1982); Florida-Texas Freight,

3185Inc. v. Hawkins; Polk v. School Board of Polk

3194County.

319545. As noted in the stipulated facts, the published notice regarding Rule

32076Hx3:7-26, which not containing the details required by the statute, did contain

3219a statement asserting that Respondent anticipated no economic impact by its

3230amendment of this rule. Accordingly, the situation here is similar to that in

3243Florid-Texas Freight, Inc. v. Hawkins, 379 So.2d 944 (Fla. 1979), where the

3255court stated:

3257The record in this cause does not require a

3266remand to the Commission to file a detailed

3274formal statement simply negating each of the

3281seven factors outlined in section

3286120.54(2)(a) when a finding of no impact has

3294been made. We find that petitioners were not

3302denied a fair hearing in this cause, and

3310certiorari therefore is denied.

331446. And in Cortese v. School Board of Palm Beach County, 425 So.2d 554

3328(Fla. 4th DCA 1982), a case in which there was no economic impact statement at

3343all, the court noted in a closing footnote:

3351We consider the absence of an economic impact

3359statement to be harmless error. School Board

3366of Broward County v. Gramith, 375 So.2d 340

3374(Fla. 1st DCA 1979); Polk v. School Board of

3383Polk County, 373 So.2d 960 (Fla. 2d DCA

33911979). There has been no showing that its

3399absence either harmed the board1s decision-

3405making process or adversely affected its

3411decision.

341247. Applying the principles of the foregoing cases to the facts in this

3425case leads to the conclusion that Rule 6Hx3:7-26 is not invalid by reason of the

3440shortcomings in its economic impact statement. Those shortcomings did not

3450impair the fairness of the proceedings or the correctness of the action taken.

3463Upon consideration of all of the foregoing, it is ORDERED:

34731. That the portions of the fourth paragraph of Rule 6Hx3:5-43 which

3485establish a charge of 25 cents each for the first nine copies and 10 cents each

3501for additional copies are an invalid exercise of delegated legislative

3511authority.

35122. That the Petitioner has failed to establish the invalidity of any other

3525portion of Rule 6Hx3:5-43 and, therefore, the remainder of the petition in Case

3538No. 87-262IR is dismissed.

35423. That the Petitioner has failed to establish the invalidity of Rule

35546Hx3:7-26 and, therefore, the petition in Case No. 87-2623RX is dismissed in its

3567entirety.

3568DONE AND ORDERED this 2nd day of October, 1987, at Tallahassee, Florida.

3580_________________________________

3581MICHAEL M. PARRISH, Hearing Officer

3586Division of Administrative Hearings

3590The Oakland Building

35932009 Apalachee Parkway

3596Tallahassee, Florida 32399-1550

3599(904) 488-9675

3601Filed with the Clerk of the

3607Division of Administrative Hearings

3611this 2nd day of October, 1987.

3617COPIES FURNISHED:

3619Mr. H. C. " Hy" Jensen

3624Economic Research Services

36272014 Northeast Street

3630Ocala, Florida 32670

3633Brian D. Lambert, Esquire

3637SAVAGE, CRIM, SIMONS,

3640FULLER AND ACKERMAN, P.A.

3644121 Northwest Third Street

3648Ocala, Florida 32670

3651Mrs. Sandra McKoy, Chairman

3655District Board of Trustees

3659Central Florida Community

3662College

3663Post Office Box 177

3667Bronson, Florida 32621

3670Liz Cloud, Chief

3673Bureau of Administrative Code

36771802, The Capitol

3680Tallahassee, Florida 32301

3683Carroll Webb, Executive Director

3687Administrative Procedure Committee

3690120 Holland Building

3693Tallahassee, Florida 32399-1300

3696NOTICE OF RIGHT TO JUDICIAL REVIEW

3702A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL

3716REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE

3726GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE

3737COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

3753DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING

3764FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR

3777WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY

3790RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE

3805ORDER TO BE REVIEWED.

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Date
Proceedings
PDF:
Date: 10/02/1987
Proceedings: DOAH Final Order
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Date: 10/02/1987
Proceedings: Final Order (hearing held , 2013). CASE CLOSED.

Case Information

Judge:
MICHAEL M. PARRISH
Date Filed:
06/18/1987
Date Assignment:
06/22/1987
Last Docket Entry:
10/02/1987
Location:
Tallahassee, Florida
District:
Northern
Agency:
Universities and Colleges
Suffix:
RX
 

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