03-004035RP Helen Evans vs. Department Of Business And Professional Regulation, Board Of Professional Engineers Status: Closed DOAH Final Order on Wednesday, December 17, 2003.

Summary: Pet. who challenges agency`s refusal to release public info in response to public records request has no standing to challenge proposed change to existing rule concerning prof. engineer exam data when Pet. is not, nor ever has been, candidate for exam.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELEN EVANS, )

)

Petitioner, )

)

vs. ) Cas e No. 03 - 4035RP

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF PROFESSIONAL ENGINEERS, )

)

Respondent. )

)

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 DOA H 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 61 G15 - 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 Profession al 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 issue d 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 objection s 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 writt en 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 o f

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 incl ude 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 O ctober 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 A dministrative 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 ma y 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

informati on 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 remov al 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 informat ion, 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 Respon dent 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 Responde nt 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 Responde nt 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. Counse l 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 w as 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. T he 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 th e 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]

w as 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 affec ted 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). Peti tioner

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

implemente d 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); F lorida 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 f inding 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 sum marize 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 provision s 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,

the re 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 t o 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 st atutory

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); F lorida Society of

Opthamology v. State, Board of Optometry , 532 So. 2d 1279, 1285

(Fla. 1st DCA 1988); Vi llage 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

ot her 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

Administra tive 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 ju risdiction 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 Pe titioner'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 t he 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. Campig lia, 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

Departm ent 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 fil ing 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 review ed.