07-004898RU National Foundation To Prevent Child Sexual Abuse, Inc. vs. Department Of Law Enforcement Status: Closed DOAH Final Order on Tuesday, November 27, 2007.

Summary: Information posted on Respondent`s website did not constitute a rule. The petition filed pursuant to Section 120.56 (4), Florida Statutes, which challenged the posting, was dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATIONAL FOUNDATION TO PREVENT )

CHILD SEXUAL ABUSE, INC. )

)

Petitioner, )

)

vs. ) Case No. 07 - 4898RU

)

DEPARTMENT OF LAW ENFORCEMENT, )

)

Respondent. )

_________________________________ )

SUMMARY FINAL ORDER

Pursuant to the stipulation of the parties, the undersigned

administrative law judge, Stuart M. Lerner, has decided this

case summarily, without an evidentiary hearing , there being no

disputed issues of material fact.

APPEARANCES

For Petitioner: Jody. A. Gorran, President

National Foundation to Prevent

Child Sexual Abuse, Inc. 1 /

6019 Via Venetia South

Delray Beach, Florida 33484

For Respondent: John P. Booth, Esquire

Assistant General Counsel

Department of Law Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

STATEMENT OF TH E ISSUE

Whether the first paragraph of the answer to Question 10 of

the "Frequently Asked Questions" about "Volunteer and Employee

Background Checks" posted on the Florida Department of Law

Enforcement's (Department's) public website (Challenged

Statement ) is a rule that violates Section 120.54(1)(a), Florida

Statutes, as alleged by Petitioner.

PRELIMINARY STATEMENT

On October 29, 2007, Petitioner filed an amended petition

with the Division of Administrative Hearings (DOAH) pursuant to

Section 120.56(4), Florida Statutes, seeking an administrative

determination that the Challenged Statement violates Section

120.54(1)(a), Florida Statutes, and, in addition, requesting "a

ruling that any future proposed rule based on the statement and

the underlying state s tatute F.S. 943.0542 would be declared an

invalid exercise of delegated legislative authority."

On October 30, 2007, the undersigned issued a notice

advising Petitioner and the Department that an evidentiary

hearing on the amended petition would be held on November 28,

2007.

On November 2, 2007, the Department filed a Motion for

Summary Final Order Dismissing Amended Petition, arguing that

Petitioner's Section 120.56(4) challenge should be summarily

dismissed inasmuch as "the statement [Petitioner] attacks,

regarding the fees for state criminal history record checks of

care providers, embodies a rule [Florida Administrative Code

Rule 11C - 6.004(3)(b)] which has already been adopted [by the

Department pursuant to the rulemaking procedure set forth in

Section 1 20.54, Florida Statutes] and then challenged,

unsuccessfully, by the Petitioner [in DOAH Case No. 07 - 4614RX]."

The Department explained in its motion that it understood, from

its reading of the Petitioner's amended petition, that

Petitioner was challengin g only "that part [of the Challenged

Statement] having to do with a state fee being charged for the

conduct[ing] of a state - level criminal history check." 2 /

On November 5, 2007, Petitioner filed a Response to

Respondent's Motion for Summary Final Order D ismissing Amended

Petition. In its response, among other things, Petitioner

clarified that it was "challenging the entirety of the

[Challenged Statement]."

Later that same day (November 5, 2007), the Department

filed a Reply to Petitioner's Response to Mo tion for Summary

Final Order Dismissing Amended Petition. Attached to the reply

was a copy of CJIS Information Letter 07 - 03, a document issued

June 1, 2007, by the Criminal Justice Information Services

(CJIS) Division of the Federal Bureau of Investigatio n (FBI)

that contains the FBI's current fee schedule for national

criminal history information checks.

Oral argument on the Department's Motion for Summary Final

Order Dismissing Amended Petition was heard on November 6, 2007,

by telephone conference call.

On November 6, 2007, following the telephone conference

call, Petitioner filed a Unilateral Stipulation, in which it

stipulated to the following:

1. There are no disputed issues of material

fact.

2. The FBI CJIS Information Letter dated

June 1, 2007 re flects the current FBI fees

in effect as of October 1, 2007 for

fingerprint - based national criminal history

record checks performed by the FBI.

3. The Honorable Administrative Hearing

Judge may cancel the hearing scheduled for

November 28, 2007, and make his ruling based

upon the record of prior pleadings in this

case.

On November 7, 2007, the Department filed a pleading

entitled, "Stipulation and Provision of Documents," the body of

which read as follows:

1. Respondent, FDLE, by and through

undersigned counsel, stipulates and agrees

that there are no disputed issues of

material fact in this proceeding, and that

the Administrative Law Judge may issue a

summary ruling based upon the law and the

pleadings, thus eliminating the need for a

formal (evidentiar y) administrative hearing.

2. Attached to this stipulation, as

Exhibits A through D, are copies of the

documents which are incorporated by

reference in Rule 11C - 6.004(4), Florida

Administrative Code. Specifically, VECHS

[Volunteer and Employee Criminal History

System] Qualified Entity Application; VECHS

User Agreement; VECHS Waiver Agreement and

Statement; and VECHS Dissemination Log. The

Application and User Agreement are available

on the FDLE web site.

3. Because the undersigned did not

anticipate that the difference between the

FBI's fee for "hard card" fingerprint

submissions and its (lower) fee for

electronic submission of fingerprints would

be an issue in the hearing today, I believed

I was obliged to qualify my response that

FDLE would be will ing to correct any

inaccuracy in this respect in the agency

"statement" which is challenged in this

proceeding. That response can now be

unqualified. FDLE will correct the

inaccuracy. In support of this

representation, I am attaching as Exhibit E,

a cop y of a letter which FDLE sent to (among

others) the VECHS Customers (i.e., qualified

entities which submit requests for criminal

history background checks on care

providers), informing them of the difference

in fees charged by the FBI for manual versus

ele ctronic submission of fingerprints.

4. Because Petitioner has not had an

opportunity to examine and comment on the

letter attached as Exhibit E, I recognize

and acknowledge that by filing it now, I am

in effect re - opening the hearing and

affording Petiti oner an opportunity to

respond if [it] so chooses. I would

respectfully ask for permission to do this.

On November 7, 2007, following his receipt of this

pleading, the undersigned issued an order announcing that,

p ursuant to the parties' requests, the in stant case would "be

decided summarily without an evidentiary hearing" and that he

therefore was cancelling the evidentiary hearing scheduled for

November 28, 2007. He further indicated in his order that

Petitioner would have the opportunity to file a ple ading in

response to the "letter attached as Exhibit E" to the

Department's " Stipulation and Provision of Documents ," provided

it did so on or before November 21, 2007. To date, no such

response has been filed.

FACTS

Challenged Statement

1. The Departmen t maintains a public website on which it

posts answers to "Frequently Asked Questions" about "[c]hecking

the [b]ackground of [p]ersons [w]ho [w]ork or [v]olunteer with

[c]hildren, the [e]lderly, or the [d]isabled [u]nder [t]he

National Child Protection Act (1993), as amended, and [S]ection

943.0542, Florida Statutes." Question 10 of these "Frequently

Asked Questions" asks whether there is a fee that organizations

participating in the Department's VECHS program (referred to as

"qualified entities") must pay to obtain state and national

criminal history checks on employees and volunteers. The first

paragraph of the answer to this question is the statement that

Petitioner is challenging in the instant case. It reads as

follows:

There is a state fee of $23 fo r Florida

record checks, plus a federal fee for

national record checks of $30.25 for current

or prospective employees. For current or

prospective volunteers there is a state fee

of $18, plus a federal fee for national

record checks of $15.25. FDLE collec ts both

payments and forwards the appropriate

federal fees to the FBI.

CJIS Information Letter 07 - 03

2. On June 1, 2007, the CJIS Division of the FBI issued

Information Letter 07 - 3 giving "[n]otification of [the]

[i]nterim [r]evised [f]ees" it would cha rge, effective October

1, 2007, for national criminal history information checks.

These "[i]nterim [r]evised [f]ees" included the following fees

for checks requested by "non - federal customers": for a manual

fingerprint - based check of an employee: $30.25 ; for an

electronic fingerprint - based check of an employee: $19.25; and

for a manual or electronic fingerprint - based check of a

volunteer: $15.25.

3. On page 3 of Information Letter 07 - 3, under the

heading, "What Does Not Change," is the following discu ssion:

Under current business practices, federal

agencies, certain state agencies, and

approved non - governmental entitles that

submit fingerprint CHRI [Criminal History

Record Information] checks function as de

facto centralized billing service providers

( CBSPs) by collecting the appropriate user

fees from concerned individuals or

subordinate agencies and paying the FBI for

the CHRI checks in a consolidated payment.

It is more cost - effective for the FBI to

bill a CBSP than to process individual

direct paym ents for single or small groups

of submissions. The CJIS Division will

continue the practice of allowing approved

CBSPs to retain a portion of the user fee as

reimbursement for this centralized billing

service (under the interim fee structure,

the reimbur sement amount will remain at $2).

For these purposes, federal agencies should

remit the CBSP amount shown on the fee table

at the end of this letter.

Exhibit E: August 10, 2007, Department Memorandum

4. In an August 10, 2007, memorandum addressed to "[ a]ll

[l]icensing, [e]mployment and VECHS [c]ustomers," the Department

gave written notice of the "FBI [f]ee [c]hange" announced in

Information Letter 07 - 3. The memorandum contained the following

advisement:

Some of you may have received notice

directly fo r the FBI but for those of you

who did not, we wanted to alert you to

changes in the FBI fee structure.

Effective October 1, 2007, the FBI fee will

be:

- $19.25 for electronic fingerprint

- submissions, except volunteers

- $30.25 for hard card finger print

submissions, except volunteers

- $15.25 for volunteer submissions

PERTINENT STATUTORY AND RULE PROVISIONS DEALING WITH CRIMINAL

HISTORY INFORMATION CHECK S

Federal Law

5. The National Child Protection Act of 1993, as amended

by the Volunteers for Children Act (sections 221 and 222 of

Public Law 105 – 251) , is codified in 42 U.S.C. § 5119(a) - (d).

6. "Background checks" are addressed in 42 U.S.C.

§ 5119(a), which provides as follows:

(a) In general.

(1) A State may have in effect procedures

(established by State statute or regulation)

that require qualified entities designated

by the State to contact an authorized agency

of the State to request a nationwide

background check for the purpose of

determining whether a provider has been

convicted of a crime that bears upon the

provider's fitness to have responsibility

for the safety and well - being of children,

the elderly, or individuals with

disabilities.

(2) The authorized agency shall access and

review State and Federal criminal history

recor ds through the national criminal

history background check system and shall

make reasonable efforts to respond to the

inquiry within 15 business days.

(3) In the absence of State procedures

referred to in paragraph (1), a qualified

entity designated under paragraph (1) may

contact an authorized agency of the State to

request national criminal fingerprint

background checks. Qualified entities

requesting background checks under this

paragraph shall comply with the guidelines

set forth in subsection (b) and with

procedures for requesting national criminal

fingerprint background checks, if any,

established by the State.

(b) Guidelines. The procedures established

under subsection (a) shall require --

(1) that no qualified entity may request a

background ch eck of a provider under

subsection (a) unless the provider first

provides a set of fingerprints and completes

and signs a statement that --

(A) contains the name, address, and date of

birth appearing on a valid identification

document (as defined in sec tion 1028 of

title 18, United States Code) of the

provider;

(B) the provider has not been convicted of

a crime and, if the provider has been

convicted of a crime, contains a description

of the crime and the particulars of the

conviction;

(C) notifies t he provider that the entity

may request a background check under

subsection (a);

(D) notifies the provider of the provider's

rights under paragraph (2); and

(E) notifies the provider that prior to the

completion of the background check the

qualified en tity may choose to deny the

provider unsupervised access to a person to

whom the qualified entity provides care;

(2) that each provider who is the subject

of a background check is entitled --

(A) to obtain a copy of any background

check report; and

(B) to challenge the accuracy and

completeness of any information contained in

any such report and obtain a prompt

determination as to the validity of such

challenge before a final determination is

made by the authorized agency;

(3) that an authorized agen cy, upon receipt

of a background check report lacking

disposition data, shall conduct research in

whatever State and local recordkeeping

systems are available in order to obtain

complete data;

(4) that the authorized agency shall make a

determination whe ther the provider has been

convicted of, or is under pending indictment

for, a crime that bears upon the provider's

fitness to have responsibility for the

safety and well - being of children, the

elderly, or individuals with disabilities

and shall convey tha t determination to the

qualified entity; and

(5) that any background check under

subsection (a) and the results thereof shall

be handled in accordance with the

requirements of Public Law 92 - 544, except

that this paragraph does not apply to any

request by a qualified entity for a national

criminal fingerprint background check

pursuant to subsection (a)(3).

(c) Regulations.

(1) The Attorney General may by regulation

prescribe such other measures as may be

required to carry out the purposes of this

Act, including measures relating to the

security, confidentiality, accuracy, use,

misuse, and dissemination of information,

and audits and recordkeeping.

(2) The Attorney General shall, to the

maximum extent possible, encourage the use

of the best technology available in

conducting background checks.

(d) Liability. A qualified entity shall

not be liable in an action for damages

solely for failure to conduct a criminal

background check on a provider, nor shall a

State or political subdivision thereof nor

a ny agency, officer or employee thereof, be

liable in an action for damages for the

failure of a qualified entity (other than

itself) to take action adverse to a provider

who was the subject of a background check.

(e) Fees. In the case of a background

c heck pursuant to a State requirement

adopted after the date of the enactment of

this Act [enacted December 20, 1993]

conducted with fingerprints on a person who

volunteers with a qualified entity, the fees

collected by authorized State agencies and

the Fed eral Bureau of Investigation may not

exceed eighteen dollars, respectively, or

the actual cost, whichever is less, of the

background check conducted with

fingerprints. The States shall establish

fee systems that insure that fees to non -

profit entities for background checks do not

discourage volunteers from participating in

child care programs.

7. The term "qualified entity," as used in 42 U.S.C.

§ 5119(a), is defined in 42 U.S.C. § 5119(c)(10) as "a business

or organization, whether public, private, for - profit, not - for -

profit, or voluntary, that provides care or care placement

services, including a business or organization that licenses or

certifies others to provide care or care placement services."

8. The term "care," as used in 42 U.S.C. § 5119(a) an d 42

U.S.C. § 5119(c)(10), is defined in 42 U.S.C. § 5119(c)(5) as

"the provision of care, treatment, education, training,

instruction, supervision, or recreation to children, the

elderly, or individuals with disabilities."

9. The term "provider," as used in 42 U.S.C. § 5119(a), is

defined in 42 U.S.C. § 5119(c)(9) as follows:

(A) a person who --

(i) is employed by or volunteers with a

qualified entity (including an individual

who is employed by a school in any capacity,

including as a child care provide r, a

teacher, or another member of school

personnel);

(ii) who owns or operates a qualified

entity; or

(iii) who has or may have unsupervised

access to a child to whom the qualified

entity provides child care; and

(B) a person who --

(i) seeks to be employed by or volunteer

with a qualified entity (including an

individual who seeks to be employed by a

school in any capacity, including as a child

care provider, a teacher, or another member

of school personnel);

(ii) seeks to own or operate a qualifi ed

entity; or

(iii) seeks to have or may have

unsupervised access to a child to whom the

qualified entity provides child care.

State Law

10. Section 943.0542, Florida Statutes, is entitled,

"Access to criminal history information provided by the

depart ment[ 3 / ] to qualified entities." It provides as follows:

(1) As used in this section, the term:

(a) "Care" means the provision of care,

treatment, education, training, instruction,

supervision, or recreation to children, the

elderly, or individuals wit h disabilities.

(b) "Qualified entity" means a business or

organization, whether public, private,

operated for profit, operated not for

profit, or voluntary, which provides care or

care placement services, including a

business or organization that licens es or

certifies others to provide care or care

placement services.

(2)(a) A qualified entity must register

with the department before submitting a

request for screening under this section.

Each such request must be voluntary and

conform to the requireme nts established in

the National Child Protection Act of 1993,

as amended. As a part of the registration,

the qualified entity must agree to comply

with state and federal law and must so

indicate by signing an agreement approved by

the department. The dep artment may

periodically audit qualified entities to

ensure compliance with federal law and this

section.

(b) A qualified entity shall submit to the

department a request for screening an

employee or volunteer or person applying to

be an employee or volun teer on a completed

fingerprint card,[ 4 / ] with a signed waiver

allowing the release of state and national

criminal history record information to the

qualified entity.

(c) Each such request must be accompanied

by a fee, which shall approximate the actual

cost of producing the record information, as

provided in s. 943.053, plus the amount

required by the Federal Bureau of

Investigation for the national criminal

history check in compliance with the

National Child Protection Act of 1993, as

amended.

(d) Any current or prospective employee or

volunteer who is subject to a request for

screening must indicate to the qualified

entity submitting the request the name and

address of each qualified entity that has

submitted a previous request for screening

regarding that employee or volunteer.

(3) The department shall provide directly

to the qualified entity the state criminal

history records that are not exempt from

disclosure under chapter 119 or otherwise

confidential under law. A person who is the

subject of a state criminal history record

may challenge the record only as provided in

s. 943.056.[ 5 / ]

(4) The national criminal history data is

available to qualified entities to use only

for the purpose of screening employees and

volunteers or persons applying to be an

employee or volunteer with a qualified

entity. The department shall provide this

national criminal history record information

directly to the qualified entity as

authorized by the written waiver required

for submission of a request to the

departmen t.

(5) The determination whether the criminal

history record shows that the employee or

volunteer has been convicted of or is under

pending indictment for any crime that bears

upon the fitness of the employee or

volunteer to have responsibility for the

s afety and well - being of children, the

elderly, or disabled persons shall solely be

made by the qualified entity. This section

does not require the department to make such

a determination on behalf of any qualified

entity.

(6) The qualified entity must n otify in

writing the person of his or her right to

obtain a copy of any background screening

report, including the criminal history

records, if any, contained in the report,

and of the person's right to challenge the

accuracy and completeness of any inform ation

contained in any such report and to obtain a

determination as to the validity of such

challenge before a final determination

regarding the person is made by the

qualified entity reviewing the criminal

history information. A qualified entity

that is required by law to apply screening

criteria, including any right to contest or

request an exemption from disqualification,

shall apply such screening criteria to the

state and national criminal history record

information received from the department for

th ose persons subject to the required

screening.

(7) The department may establish a database

of registered qualified entities and make

this data available free of charge to all

registered qualified entities. The database

must include, at a minimum, the na me,

address, and phone number of each qualified

entity.

(8) A qualified entity is not liable for

damages solely for failing to obtain the

information authorized under this section

with respect to an employee or volunteer.

The state, any political subdiv ision of the

state, or any agency, officer, or employee

of the state or a political subdivision is

not liable for damages for providing the

information requested under this section.

(9) The department has authority to adopt

rules to implement this sectio n.

11. Subsection (3)(b) of Section 943.053, Florida Statutes

(the statutory provision referenced in Subsection (2)(c) of

Section 943.0542, Florida Statutes) provides, in pertinent part,

as follows:

The fee per record for criminal history

information pr ovided pursuant to this

subsection is $23 per name submitted, except

that . . . the fee for requests under the

National Child Protection Act shall be $18

for each volunteer name submitted. . . .

12. Florida Administrative Code Rule 11C - 6.004 is a

Depart ment - adopted rule that prescribes "[p]rocedures for

[r]equesting [c]riminal [h]istory [r]ecords." It provides as

follows:

(1) Requests for Florida criminal history

records contained in the systems of the

Florida Department of Law Enforcement are to

be directed to the following address:

Florida Department of Law Enforcement

Division of Criminal Justice Information

Services

User Services Bureau

Post Office Box 1489

Tallahassee, Florida 32302 - 1489.

(2) All requests will be subject to

processing in t he following declining order

of priorities:

(a) Requests from law enforcement and

criminal justice agencies for criminal

justice purposes, including criminal justice

agency applicant processing;

(b) Requests for a personal record review

pursuant to Rul e 11C - 8.001, F.A.C.;

(c) Requests from the Judicial

Qualifications Commission, the Governor, and

the President of the Senate or the

appropriate Senate standing committee,

select committee or subcommittee thereof

relating to the appointment of officers;

(d) Requests from non - criminal justice

agencies having specific statutory authority

to receive criminal history information;

(e) Requests from other governmental

agencies relying upon the Public Records Law

(Chapter 119, F.S.);

(f) Requests from priva te individuals,

businesses or organizations relying upon the

Public Records Law.

(3) Fees.

(a) There shall be no charge for conducting

record checks under paragraphs (2)(a)

through (c).

(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 J ustice, 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 th e 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.

(c) The processing fee charged for each

subject inquired upon via the internet shall

be the fee authorized for inquiries from

persons in the private sector in subsection

943.053(3), F.S. This fee shall be assesse d

based on the inquiry regardless of whether

the results show no criminal history record

or some possible records. When an inquiry

on one subject is made and more than one

person is presented as possibly the same

person, the customer will receive one

crim inal history record as a result of the

prescribed payment. If the customer wants

additional criminal history records from the

list of persons presented for this same

inquiry, a processing fee of $8.00 shall be

charged for each additional criminal record.

(4) Entities applying to the Florida

Department of Law Enforcement to be

qualified to receive criminal history

records under the National Child Protection

Act of 1993, as amended, must first complete

and submit the following documents to the

Florida Depa rtment of Law Enforcement, in

accordance with the instructions provided:

VECHS Qualified Entity Application -

Volunteer & Employee Criminal History System

(NCPA 1; Rev. January 1, 2001); and VECHS

User Agreement - Volunteer & Employee

Criminal History Sys tem (NCPA 2; Rev.

January 1, 2001). Entities that are

qualified through the Florida Department of

Law Enforcement to receive criminal history

records under the National Child Protection

Act must complete and submit the following

documents to the Florida D epartment of Law

Enforcement with each request for a criminal

history record, in accordance with the

instructions provided: An authorized

fingerprint card for each person whose

criminal history record is requested; and a

VECHS Waiver Agreement and Stateme nt -

Volunteer & Employee Criminal History System

(NCPA 3; Rev. January 1, 2001). Qualified

entities that release to another qualified

entity any criminal history record

information received pursuant to the

National Child Protection Act must complete

and maintain the following document, in

accordance with the instructions provided:

VECHS Dissemination Log - Volunteer &

Employee Criminal History System (NCPA 4,

Rev. January 1, 2001). These forms are

incorporated by reference.

13. Each of the four forms i ncorporated by reference in

Subsection (4) of Florida Administrative Code Rule 11C - 6.004

make mention of national, as well as state, criminal history

checks. 6 /

14. One of these forms, the VECHS User Agreement form,

refers to the payment that must be made to obtain these checks.

It provides as follows:

I. Parties to Agreement

This Agreement, entered into by the Florida

Department of Law Enforcement (hereinafter

referred to as FDLE), an agency of the State

of Florida, with headquarters in

Tallahassee, Flo rida, and

____________________________________________

___________________,

(hereinafter referred to as User), located

at ______________________________________

____________________________________________

_____, is intended to set forth the terms

and condit ions under which criminal history

background checks authorized by the National

Child Protection Act of 1993, as amended,

(hereafter referred to as the NCPA), and as

implemented by Section 943.0542, Florida

Statutes, (F.S.), shall be conducted.

A. FDLE ha s established and maintains

intrastate systems for the collection,

compilation, and dissemination of state

criminal history records and information in

accordance with subsection 943.05(2), F.S.,

and, additionally, is authorized and does

participate in simi lar multi - state and

federal criminal history records systems

pursuant to subsection 943.05(2), F.S.;

B. FDLE and its user agencies are subject

to and must comply with pertinent state and

federal regulations relating to the receipt,

use, and dissemination of records and record

information derived from the systems of FDLE

and the United States Department of Justice

(Chapter 943, F.S., Chapter 11C - 6, F.A.C.,

28 C.F.R. Part 20);

C. User is a public, private, for profit,

or not - for - profit entity operating w ithin

the State of Florida and is authorized to

submit fingerprint cards and review

resultant criminal history records as part

of the screening process for its current

and/or prospective employees and volunteers

(which classes of persons shall be

understoo d for purposes of this Agreement to

include contractors and vendors who have or

may have unsupervised access to the

children, disabled, or elderly persons for

whom User provides care), pursuant to

section 943.0542, F.S., and the NCPA, and

forms the legal b asis for User's access to

criminal history record information derived

from the systems of the U.S. Department of

Justice; and

D. User is desirous of obtaining and FDLE

is required and willing to provide such

services so long as proper reimbursement is

ma de and all applicable federal and state

laws, rules, and regulations are strictly

complied with.

Now, therefore, in light of the foregoing

representations and the promises,

conditions, terms, and other valuable

considerations more fully set forth

hereinaf ter or incorporated by reference and

made a part hereof, FDLE and User agree as

follows:

II. Service, Compliance, and Processing

A. FDLE agrees to:

1. Assist User concerning the privacy and

security requirements imposed by state and

federal laws, and regulations; provide User

with copies of all relevant laws, rules, and

or regulations as well as updates as they

occur; offer periodic training for User’s

personnel;

2. Provide User with such state criminal

history records and information as reported

to , processed, and contained in its systems

and legally available to the User; and

3. Act as an intermediary between User and

the United States Department of Justice,

securing for the use and benefit of User

such federal and multi - state criminal

history re cords or information as may be

available to User under federal laws and

regulations.

B. User agrees to:

1. Submit requests to FDLE for criminal

history background checks pursuant to this

agreement only for User’s current and

prospective Florida employe es and

volunteers, for whom User is not already

required to obtain state and national (Level

2) criminal history background checks under

any other state or federal statutory

provision. User shall continue to comply

with all other such statutory provisions for

all applicable persons;

2. Determine whether the current or

prospective employee or volunteer has been

convicted of, or is under pending indictment

for, a crime that bears upon his or her

fitness to have access to or contact with

children, the elder ly, or individuals with

disabilities;

3. Obtain a completed and signed Waiver

Agreement and Statement form (provided by

FDLE) from every current or prospective

employee and volunteer, for whom User

submits a request for a criminal history

background chec k to FDLE. (The signed

Waiver Agreement and Statement allows the

release of state and national criminal

history record information to the qualified

entity.) The Waiver Agreement and Statement

must include the following: (a) the

person’s name, address, a nd date of birth

that appear on a valid identification

document (as defined at 18 U.S.C. section

1028); (b) an indication of whether the

person has or has not been convicted of a

crime, and, if convicted, a description of

the crime and the particulars of t he

conviction; (c) a notification to the person

that User may request a criminal history

background check on the person as authorized

by section 943.0542, F.S., and the NCPA; (d)

a notification to the person of his or her

rights as explained in paragraph 1 2 below;

and (e) a notification to the person that,

prior to the completion of the background

check, User may choose to deny him or her

unsupervised access to a person to whom User

provides care. User shall retain the

original of every Waiver Agreement an d

Statement and provide FDLE with a copy

thereof;

4. Use only fingerprint cards provided by

FDLE specifically designed for use with

requests for criminal history record checks

under the NCPA; provide FDLE with a properly

completed and executed fingerprin t card for

each current or prospective employee and

volunteer for whom User requests a criminal

history record check pursuant to this

agreement; and indicate either "NCPA/VCA

VOLUNTEER" or "NCPA/VCA EMPLOYEE" in the

"reason fingerprinted" block of each

fin gerprint card submitted.[ 7 / ] (VCA refers

to Volunteers for Children Act);

5. Keep all records necessary to facilitate

a security audit by FDLE and to cooperate in

such audits as FDLE or other authorities may

deem necessary. Examples of records that

may be subject to audit are criminal history

records; notification that an individual has

no criminal history; internal policies and

procedures articulating the provisions for

physical security; records of all

disseminations of criminal history

information; a nd a current, executed User

Agreement with FDLE;

6. IF ENTITY IS PRIVATE, FOR PROFIT OR NOT

FOR PROFIT** - Pay for services provided by

FDLE and the Federal Bureau of Investigation

(FBI) in accordance with rule 11C - 6.004,

F.A.C., with the submission of f ingerprint

cards;

* * *

9. Insure that the appropriate personnel

know to keep the information obtained under

this agreement in a secure place and to use

it only for the screening as outlined in

this agreement;

10. Promptly ad vise FDLE of any violations

of this agreement;

11. Share criminal history information with

other qualified entities only after

confirming with FDLE that the requesting

entity has been designated a qualified

entity and has signed a user agreement, and

onl y after verifying that the current

prospective employee or volunteer has

authorized the release of his or her

criminal history records, if any, to other

qualified entities by a statement on his or

her signed waiver. User will respond that

it is unable to provide any information to

the requesting entity if the current or

prospective employee or volunteer has

requested that his or her criminal history

record (s) not be released to any other

qualified entity; and

12. Notify the current or prospective

employ ee or volunteer of his or her right to

obtain a copy of the criminal history

records, if any, contained in the report,

and of the person’s right to challenge the

accuracy and completeness of any information

contained in any such report, and to obtain

a det ermination as to the validity of such

challenge before a final determination

regarding the person is made by the

qualified entity reviewing the criminal

history information. (Information on these

rights may be obtained by contacting FDLE,

regarding Florid a records, at FDLE, Attn:

USB/VECHS Unit, P.O. Box 1489, Tallahassee,

Florida 32302 - 1489, (850) 410 - 8324, or by

contacting the FBI, regarding

federal/national records, at FBI, Criminal

Justice Information Services Division, Attn:

SCU, MOD D - 2, 1000 Custer Hollow Road,

Clarksburg, West Virginia 26306, (304) 625 -

3878.) A qualified entity that is required

by law to apply screening criteria,

notwithstanding any right to contest or

request an exemption from disqualification,

shall apply such screening criteria to the

state and national criminal history record

information received from the department.

* * *

DOAH CASE NO. 07 - 4614RX

15. In DOAH Case 07 - 4614RX, Petitioner filed a petition

pursuant to Section 120.56(3), Florida Statutes, seeking an

administrative determination of the invalidity of Subsection

(3)(b) of Florida Administrative Code Rule 11C - 6.004.

Petitioner's challenge to this rule provision was unsuccessful.

In her Final Order dismissing the petition, Administrative Law

J udge June C. McKinney stated the following:

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 undersi gned 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 amoun t 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

address ed 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.

CONCLUSIONS OF LAW

16. The instant challenge is being made pursuant to

Section 120.56(4), F lorida Statutes, which allows "[a]ny person

substantially affected" by an "agency statement[] defined as [a]

rule[]" to "seek an administrative determination that the

statement violates [Section] 120.54(1)(a) [Florida Statutes],"

by filing a petition with DOAH that "include[s] the text of the

statement or a description of the statement and . . . state[s]

with particularity facts sufficient to show that the statement

constitutes a rule under [Section] 120.52 [Florida Statutes] and

that the agency has not ado pted the statement by the rulemaking

procedure provided by [Section] 120.54 [Florida Statutes]."

§ 120.56(4)(a), Fla. Stat. 8 /

17. Not every "agency statement" is a " rule " as defined by

Section 120.52(15), Florida Statutes, which provides as follows:

" Rule" means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any informa tion not specifically

required by statute or by an existing rule.

The term also includes the amendment or

repeal of a rule. The term does not

include:

(a) Internal management memoranda which do

not affect either the private interests of

any person or an y plan or procedure

important to the public and which have no

application outside the agency issuing the

memorandum.

(b) Legal memoranda or opinions issued to

an agency by the Attorney General or agency

legal opinions prior to their use in

connection wit h an agency action.

(c) The preparation or modification of:

1. Agency budgets.

2. Statements, memoranda, or instructions

to state agencies issued by the Chief

Financial Officer or Comptroller as chief

fiscal officer of the state and relating or

perta ining to claims for payment submitted

by state agencies to the Chief Financial

Officer or Comptroller.

3. Contractual provisions reached as a

result of collective bargaining.

4. Memoranda issued by the Executive Office

of the Governor relating to infor mation

resources management.

Only agency statements of "general applicability," i.e., those

statements which are intended by their own effect to create or

adversely effect rights, to require compliance, or to otherwise

have the direct and consistent effec t of law, fall within this

definition. See Department of Highway Safety and Motor Vehicles

v. Schluter , 705 So. 2d 81, 82 (Fla. 1st DCA 1997); Balsam v.

Department of Health and Rehabilitative Services , 452 So. 2d

976, 977 - 978 (1st DCA, 1984); and McDonal d v. Department of

Banking and Finance , 346 So. 2d 569, 581 (Fla. 1st DCA 1977).

18. "An agency statement constituting a rule [as defined

in Section 120.52(15), Florida Statutes] may be challenged

pursuant to Section 120.56(4) , Florida Statutes, only on t he

ground that 'the agency has not adopted the statement by the

rulemaking procedure provided by s. 120.54.'" Zimmerman v.

Department of Financial Services, Office of Insurance

Regulation , No. 05 - 2091RU, slip op. at 11 (Fla. DOAH August 24,

2005)(Summary Final Order of Dismissal)(emphasis added). If the

challenge is successful, "the agency [must] immediately

discontinue all reliance upon the statement or any substantially

similar statement as a basis for agency action."

§ 120.56(4)(d), Fla. Stat. Such prospective injunctive relief

is the sole remedy available under the statute. The

administrative law judge is without authority in a Section

120.56(4) proceeding to make a determination, such as the one

Petitioner has asked the undersigned to make in the instant

case, that "any future proposed rule based on the statement"

being challenged "would be declared an invalid exercise of

delegated legislative authority." See Southwest Florida Water

Management District v. Charlotte County , 774 So. 2d 903, 908 - 09

( Fla. 2d DCA 2001)("The basis for a challenge to an agency

statement under this section [Section 120.56(4) , Florida

Statutes] is that the agency statement constitutes a rule as

defined by section 120.52(15), Florida Statutes (Supp. 1996),

but that it has no t been adopted by the rule - making procedure

mandated by section 120.54. In the present case, the challenges

to the existing and proposed agency statement on the grounds

that they represent an invalid delegation of legislative

authority are distinct from a section 120.56(4) challenge that

the agency statements are functioning as unpromulgated rules.");

Florida Association of Medical Equipment Services v. Agency for

Health Care Administration , No. 02 - 1314RU, slip op. at 6 (Fla.

DOAH October 25, 2002)(Order o n Motions for Summary Final

Order)("[I]n a Section 120.56(4) proceeding which has not been

consolidated with a proceeding pursuant to Section 120.57(1)(e),

the issue whether a rule - by - definition is substantively invalid

for reasons set forth in Section 120 .52(8)(b) - (g), Florida

Statutes, should not be reached. That being so, the ultimate

issues in this case are whether the alleged agency statements

are rules - by - definition and, if so, whether their existence

violates Section 120.54(1)(a)."); and Johnson v. Agency for

Health Care Administration , No. 98 - 3419RU, 1999 Fla. Div. Adm.

Hear. LEXIS 5180 *15 (Fla. DOAH May 18, 1999)(Final Order of

Dismissal)("It is apparent from a reading of subsection (4) of

Section 120.56, Florida Statutes, that the only issue to b e

decided by the administrative law judge in a proceeding brought

under this subsection is 'whether all or part of [the agency]

statement [in question] violates s. 120.54(1)(a),' Florida

Statutes, . . . ."); see also S. T. v. School Board of Seminole

Coun ty , 783 So. 2d 1231, 1233 (Fla. 5th DCA 2001)("Unless

created by the constitution, an administrative agency has no

common law powers, and has only such powers as the legislature

chooses to confer upon it by statute."); and Department of

Environmental Regul ation v. Puckett Oil Co ., 577 So. 2d 988, 991

(Fla. 1st DCA 1991)("It is well recognized that the powers of

administrative agencies are measured and limited by the statutes

or acts in which such powers are expressly granted or implicitly

conferred.").

19. Petitions seeking relief under Section 120.56(4),

Florida Statutes, if found by DOAH's director to meet the

pleading requirements of the statute, are assigned to an

administrative law judge, who has the authority to determine, by

final order, "whether al l or part of [the] statement [being

challenged] violates [Section] 120.54(1)(a) [Florida Statutes]."

§ 120.56(4)(c), Fla. Stat. The administrative law judge may

issue a summary final order in cases, such as the instant one,

where the judge determines fr om the documents "on file" that "no

genuine issue as to any material fact exists." § 120.57(1)(h),

Fla. Stat.; see also Fla. Admin. Code R. 28 - 106.204(4)("In cases

in which the Division of Administrative Hearings has final order

authority, any party may m ove for summary final order whenever

there is no genuine issue as to any material fact.").

20. The "agency statement" Petitioner is challenging in

the instant case is an excerpt from material posted by the

Department on the "Frequently Asked Questions" s ection of that

portion of the Department's public website which discusses the

Department's VECHS program, through which "qualified entities"

may obtain state and national criminal history checks on

employees and volunteers. The excerpt addresses the amoun t,

collection, and disposition of fees charged for these criminal

history checks.

21. Significantly, the Challenged Statement does not, by

its own terms, establish any new fee requirements or procedures.

Rather, it attempts merely to summarize, for th e benefit of

interested members of the public, existing requirements and

procedures that have been established elsewhere (specifically,

in Subsection (2)(c) of Section 943.0542, Florida Statutes;

Subsection (3)(b) of Section 943.053, Florida Statutes; Flor ida

Administrative Code Rule 11C - 6.004; and the FBI's CJIS

Information Letter 07 - 03). The statement is descriptive,

informative, and advisory, not prescriptive or directive. Its

clear purpose is to provide guidance to the public (using a

"Frequently Aske d Question" format), not to form "a basis for

agency action." Even if this guidance given by the Department

were inaccurate (which, from a review Subsection (2)(c) of

Section 943.0542; Subsection (3)(b) of Section 943.053; Florida

Administrative Code Rule 11C - 6.004; and the FBI's CJIS

Information Letter 07 - 03, appears not to be the case 9 / ), the

statement would not constitute a "rule," as defined in Section

120.52(15), Florida Statutes, because it is intended to simply

inform and educate and does not purpor t to have the force and

effect of law. See Florida Hometown Democracy v. Department of

State , No. 06 - 3968RU, 2007 Fla. Div. Adm. Hear. LEXIS 52 *18 - 19

(Fla. DOAH January 25, 2007)(Final Order)("Likewise, DOS's

current rule specifies that all changes (whic h would include

translations) to an initiative must be submitted for review, but

that only material changes must actually be approved. Rule 1S -

2.009(7) expressly defines what constitutes a material change,

and translation of an initiative where the Englis h version has

been approved previously is not listed as a material change.

Therefore, the statement on the DOS website is consistent with

the existing rule. When the statement is viewed in context, it

is clear that it simply confirms DOS's position regar ding the

parameters of its statutory responsibility, consistent with its

existing rule. The agency statement does not require compliance

with any standard, it simply states that DOS does not proof

translations. It creates no rights while adversely affect ing

others, and it does not have the direct and consistent effect of

law."); Florida Education Association v. Florida State Board of

Education , No. 05 - 0813RU, 2005 Fla. Div. Adm. Hear. LEXIS 1278

*27 - 28 (Fla. DOAH September 15, 2005)(Final Order)("BOE coun ters

that the Technical Assistance Paper does not meet the definition

of a 'rule' because it is merely an informational document

explaining the terms of the new Consent Order provisions. The

Technical Assistance Paper does not 'implement, interpret or

pre scribe' law or policy and, of itself, compels no compliance.

It merely describes the terms of the Stipulation Modifying

Consent Decree approved by order of the federal court. The

provisions of the Federal Consent Order are enforceable with or

without the promulgation of a rule by BOE. Even if the

Technical Assistance Paper ceased to exist, the requirements of

the Federal Consent Order would be the same. A side - by - side

reading of the Stipulation Modifying Consent Decree and the

Technical Assistance Paper confirms BOE's contention. While the

Technical Assistance Paper provides detailed explanations in a

format more likely to be useful to educational professionals

than the language of the stipulation, nothing in the Technical

Assistance Paper imposes any r equirement not already set forth

by the modified Federal Consent Order."); Reynolds v. Board Of

Trustees of the Internal Improvement Trust Fund , No. 03 - 4478RU,

2004 Fla. ENV LEXIS 222 *15 - 16 (Fla. DOAH February

20,2004)(Final Order)("Lastly, regarding the first statement

challenged, the history surrounding driving on the beach and

regulation by the BOT indicates that the Legislature has limited

BOT's jurisdiction to regulate driving on the beach by Section

161.58, Florida Statutes. The challenged statement is [a] re -

statement of the scheme of statutory regulation, and not a

statement of BOT policy."); Pope v. Department of Environmental

Protection , Nos. 03 - 3860RX and 03 - 3861RU, 2003 Fla. ENV LEXIS

243 *30 - 31 (Fla. DOAH November 24, 2003)(Final Order)("The

S tatement does not meet Chapter 120's definition of the term

'Rule': 'each agency statement of general applicability that

implements, interprets, or prescribes law or policy or describes

the practice and procedure requirements of an agency . . . .'

§ 120. 52(15), Fla. Stat. The Statement did not create any right

or impose any obligation on the regulated. It did not have the

force and effect of law. The greater weight of the evidence

establishes that it was not used by DEP or the Bureau in setting

the Con tinuous Line of Construction that applies to the Ray's

permit. It did nothing more than offer a concerned party a

starting point in deciding whether or not to pursue a permit for

activity seaward of a CCCL pursuant to Section 161.053(5)(b),

Florida Statut es."); Harrison v. Crist , No. 01 - 0293RU, 2001 Fla.

Div. Adm. Hear. LEXIS 2618 *16 - 17 (Fla. DOAH May 18, 2001)(Final

Order)("The DOE Pamphlet at page 3 clearly states that

applicants to FSDB must 'meet enrollment requirements.' It is

consistent with Sectio ns 230.23(4)(m)3, and 242.3305, Florida

Statutes, and Rule 6D - 3.002, Florida Administrative Code, which

provide that a student must meet certain criteria to be admitted

to FSDB. The DOE Pamphlet does not reasonably limit or alter

the statutorily authorize d admissions criteria, as set forth by

Rule 6D - 3.002, Florida Administrative Code. . . . The DOE

Pamphlet, including the challenged sentences is not a 'rule' as

defined by Section 120.52(15), Florida Statutes."); Save Our

Bays, Air and Canals, Inc., v. De partment of Environmental

Protection , No. 01 - 2326RU, 2001 Fla. ENV LEXIS 295 *12 (Fla.

DOAH September 19, 2001)(Final Order)("Even if Section 120.573

were given the interpretation urged by SOBAC, it still could not

be found, on the record of this case, tha t the alleged statement

does anything more than impart information as to the

availability of mediation under Section 120.573 in a particular

case. As such, it cannot be found to be a 'statement of general

applicability that implements, interprets, or pres cribes law or

policy or describes the procedure or practice requirements of an

agency.'"); and Jones v. Department of Children and Family

Services , No. 97 - 4215RU, 1997 Fla. Div. Adm. Hear. LEXIS 5696

*16 - 17 (Fla. DOAH December 1, 1997)(Final Order)("Althou gh

Dr. Awad has attempted to state the agency policy concerning

rescreening of existing employees and initial screening of job

applicants on dates subsequent to October 1, 1995, his

reiteration of that policy is inconsequential. It cannot be

determined fr om a reading of the second paragraph to Dr. Awad's

letter what offenses by date of commission would form a basis

for disqualification, because the letter is silent on that

point. All that is stated is that employees undergoing

rescreening and new job appl icants being screened must generally

comply with existing law. That statement is not understood to

resolve the pertinent issue of the treatment of offenses that

predate October 1, 1995. Consequently, in the present context,

the policy is not found by its own effect to create rights, or

to require compliance, or otherwise to have the direct and

consistent effect of law and is not a 'Rule' by the definition

in Section 120.52(15), Florida Statutes (Supp. 1996).").

22. Having failed to establish that the Cha llenged

Statement is a "rule," as defined in Section 120.52(15), Florida

Statutes, Petitioner cannot prevail in this proceeding, and its

petition must be dismissed.

ORDER

Based on the foregoing, it is

ORDERED that:

the relief requested by Petitioner in it s amended petition

filed with DOAH pursuant to Section 120.56(4), Florida Statutes

(to wit: an administrative determination that the Challenged

Statement violates Section 120.54(1)(a), Florida Statutes, and,

in addition, "a ruling that any future proposed rule based on

the statement and the underlying state statute F.S. 943.0542

would be declared an invalid exercise of delegated legislative

authority") is DENIED and the amended petition is DISMISSED.

DONE AND ORDERED this 27th day of November, 2007, in

Ta llahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeS oto 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 27th day of November, 2007.

ENDNOTES

1 / Petitioner is representing itself in these proceedings

through Mr. Gorran. Such self - r epresentation is permissible in

administrative proceedings. See Magnolias Nursing and

Convalescent Center v. Department of Health and Rehabilitative

Services , 428 So.2d 256, 257 (Fla. 1st DCA 1982).

2 / Petitioner had stated on page four of its amended p etition

that it had "no issue with the collection of the federal fee but

[did] object to the collection of a state fee . . . ."

3 / "Department," as that term is used in Chapter 943, Florida

Statutes, "means the Department of Law Enforcement."

§ 943.02( 1), Fla. Stat.

4 / The statute requires the submission of hard copy fingerprint

cards. It makes no provision for the electronic submission of

fingerprints.

5 / Section 943.056, Florida Statutes, provides as follows:

(1) For purposes of verification of the

accuracy and completeness of a criminal

history record, the Department of Law

Enforcement shall provide, in the manner

prescribed by rule, such record for review

upon verification, by fingerprints, of the

identity of the requesting person. If a

minor , or the parent or legal guardian of a

minor, requests a copy of the minor's

criminal history record, the Department of

Law Enforcement shall provide such copy for

review upon verification, by fingerprints,

of the identity of the minor. The providing

of s uch record shall not require the payment

of any fees, except those provided for by

federal regulations.

(2) Criminal justice agencies subject to

chapter 120 shall be subject to hearings

regarding those portions of criminal history

records for which the a gency served as

originator. When it is determined what the

record should contain in order to be

complete and accurate, the Criminal Justice

Information Program shall be advised and

shall conform state and federal records to

the corrected criminal history record

information.

(3) Criminal justice agencies not subject

to chapter 120 shall be subject to

administrative proceedings for challenges to

criminal history record information in

accordance with rules established by the

Department of Law Enforcement.

(4) Upon request, an individual whose

record has been corrected shall be given the

names of all known noncriminal justice

agencies to which the data has been given.

The correcting agency shall notify all known

criminal justice recipients of the corrected

information, and those agencies shall modify

their records to conform to the corrected

record.

Neither Section 943.056, nor Florida Administrative Code Rule

11C - 8.001, the Department rule that implements Section 943.056,

deals with the subject covered by the Challenged Statement -- the

fees charged " qualified entities " (not "providers") for criminal

history information. The Florida statutory provision that does

address this subject is Section 943.0542, Florida Statutes,

specifically Subsection (2)(c) thereo f.

6 / Subsections (1) through (3) of Florida Administrative Code

Rule 11C - 6.004, on the other hand, deal exclusively with state

criminal history checks.

7 / Consistent with the requirements of Section 943.0542 ,

Florida Statutes, Subsection (4) of Florid a Administrative Code

Rule 11C - 6.004 , as well as the VECHS User Agreement form that is

incorporated therein, provide that hard copy fingerprint cards

must be used for the submission of fingerprints.

8 / An agency may avoid an administrative determination that the

statement in question violates Section 120.54(1)(a), Florida

Statutes, by showing that rulemaking is not feasible or

practicable. See Ikon Office Solutions, Inc., v. Pinellas

County School Board , No. 07 - 1266RU, 2007 Fla. Div. Adm. Hear.

LEXIS 28 9 *21 - 22 (Fla. DOAH May 14, 2007)(Final Order)( " Once the

Petitioner establishes that the cited statements constitute

rules, the burden then shifts to the agency to establish that

rulemaking is not feasible and practicable under Subsection

120.54(1)(a), Flo rida Statutes."). The Department, however, has

not raised this affirmative defense in the instant case.

9 / The $19.25 "non - federal customer" fee that the FBI's CJIS

Information Letter 07 - 03 prescribes for an electronic

fingerprint - based national crimina l history check of an employee

would appear to be inapplicable under Florida law to employee

screening requests "qualified entities" make to the Department

inasmuch as Subsection (2) of Section 943.0542, Florida

Statutes, and Subsection (4) of Florida Admi nistrative Code Rule

11C - 6.004, as well as the VECHS User Agreement form that is

incorporated by reference in this rule provision, require the

submission of a hard copy fingerprint card along with the

request and make no provision for the electronic submis sion of

fingerprints.

COPIES FURNISHED :

Scott Boyd, Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

Jody. A. Gorran, President

National Foundation to Prevent

Child Sexual Abuse, Inc.

6019 Via Venetia South

Delray Beach, Florida 33484

John P. Booth, Esquire

Assistant General Counsel

Department of Law Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

Gera ld M. Bailey, Commissioner

Department of Law Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

Michael Ramage, Esquire

General Counsel

Department of Law Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

N OTICE OF RIGHT TO JU DICIAL REVIEW

A part y who is adversely affected by this Summary 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 D istrict where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.