11-003297RX Project Refocus, Inc., A Florida Corporation vs. United Safety Council, Inc., D/B/A Florida Safety Council, Inc., A Florida Non-Profit Corporation And Department Of Highway Safety And Motor Vehicles Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, April 11, 2012.

Summary: APA does not provide for a rule challenge against a private entity, who has been contracted to provide a governmental service, because the private entity does not meet the statutory definition of an "agency."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROJECT REFOCUS, INC., A )

FLORIDA CORPORATION , )

)

Petitioner , )

)

vs. ) Case No. 11 - 3297RX

)

UNITED SAFETY COUNCIL, INC., )

d/b/a FLORIDA SAFETY COUNCIL, )

INC., A FLORIDA NON - PROFIT )

CORPORATION AND DEPARTMENT OF )

HIGHWAY SAFETY AND MOTOR )

VEHICLES , )

)

Respondents . )

)

SUMMARY FINAL ORDER

Pursuant to notice, a hearing was held in this case on

August 22, 2011, by teleconference on Respond ent , United Safety

Council's Motion for Summary Final Order , before Thomas P.

Crapps, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Samuel B. Weissman, Esq uire

Kramer Law Fi rm, P.A.

IDC Building

999 Douglas Avenue

Suite 3333

Altamonte Springs, F lorida 32714

Damon Chase, Esq uire

Chase Freeman

1525 Internatio nal Parkway, S ui te 402

Lake Mary, Florida 32746

For Respondent: Brandon S. Peters, Esq uire

Peters Trial Group, LLC

1844 W est Fairbanks Avenue

Winter Park, F lorida 32789

For Depart ment: Douglas Sunshine, Esq uire

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

2900 Apalachee Parkway, Room A432

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether a final order dismissing the Petitioner's rule

challenge should be entered because Respondent , United Safety

Council, Inc., doing business as Florida Safety Council (United

Safety Council), is not an "agency" within the Flor ida

Administrative Procedures Act (APA), and there is no claim

challenging a rule enacted by Respondent , Department of Highway

Safety and Motor Vehicles (Department).

HOLDINGS

United Safety Council is not an ÐagencyÑ within the

definition of section 120. 52(1), Florida Statutes (2010); thus

Project Refocus' rule challenge against United Safety Council is

not subject to the APA . Consequently, United Safety Council's

Motion for Summary Final Order is Granted.

Project Refocus' p etition in the instant case d oes not

challenge a Department rule or action, and the Department was

never added or served as a party. Therefore, the Department's

motion to remove it as a party is Granted.

PRELIMINARY STATEMENT

On June 27, 2011, Petitioner, Project Refocus, Inc.,

(Proj ect Refocus) filed a Petition Seeking Administrative

Determination of the Invalidity of Rulemaking and Invalid

Exercise of Delegated Powers Under Florida Administrative Code

(Petition). Specifically, the Project Refocus brought an

existing rule challenge, pursuant to sec tion 120.56(3), that

claimed Respondent, United Safety Council, a non - profit Florida

Corporation, had "exceeded the powers delegated by the

Department under Chapter 322 , Florida Statutes, and Florida

Administrative Code Rule 15A - 10, and find ing such actions by

[United Safety Council] to be invalid[.]" 1/

On June 30, 2011, the Clerk for the Florida Division of

Administrative Hearings (DOAH) provided the Florida Department

of State a copy of the Project Refocus' rule challenge. The

Clerk added the Department into the case - style. On July 1,

2011, DOAH assigned the case to the undersigned, Administrative

Law Judge Thomas P. Crapps.

On July 8, 2011, the undersigned conducted a telephonic

hearing to set a final hearing date for the rule challenge. At

the hearing, the Department made an ore tenus motion to remove

the Department as a party , because the Department was not listed

or served as a party. On July 20, 2011, the Department followed

the ore tenus motion with a written motion, Respondent's Mo tion

to Remove Party , that argued that the Department had not been

served with process and was not a proper party. The

Department's motion did not comply with Florida Administrative

Code R ule 28 - 106.204(1) , which requires that a movant contact

all parties and state the parties' position concerning the

relief sought by movant. To date, neither Project Refocus nor

United Safety Council has filed an objection to the relief

sought by the Department.

The final hearing for the rule challenge was set for

August 25 and 26, 2011.

On August 3, 2011, United Safety filed Respondent's Motion

for Summary Final Order , arguing that because United Safety

Council is not a state "agency" as defined by the APA , a final

summary order should be entered against Project Refocus.

On August 11, 2011, Project Refocus filed Petitioner's

Response to Respondent's Motion for Summary Final Order and

Motion to Strike Respondent's Motion for Summary Final Order .

Project Refocus advanced two reasons why United Safety Council's

motion shou ld be denied. First, Project Refocus argued that in

a circuit court proceeding between the parties , United Safety

Council had taken a contrary position that the Division of

Administrative Hearings had jurisdiction, not the circuit court ,

to consider the c laims. Project Refocus' second argument was

that United Safety Council was a private entity undertaking a

public role which made it subject to the APA. In addition to

its response, Project Refocus also advanced a motion to strike

United Safety Council's Motion for Summary Final Order based on

United Safety Council's failure to comply with Florida

Administrative Code R ule 28 - 106.204(1) , by not stating Project

Refocus' position as to the motion.

On August 19, 2011, United Safety Council filed a response

arg uing that it had not taken an inconsistent position before a

circuit court , and that its position "remains - that any remedy

afforded Petitioner is an administrative remedy before [the

Department]." As for the motion to strike, United Safety

Council noted that Project Refocus was not prejudiced and had an

opportunity to file an appropriate response.

On August 22, 2011, the undersigned conducted a telephonic

hearing on United Safety Council's Motion for Summary Final

Order . Because the issue raised by Un ited Safety Council

appeared dispositive, the undersigned cancelled the August 25

and 26, 2011, final hearing on the rule challenge.

I. Removal of the Department of Highway Safety and Motor

Vehicles as a party.

The first issue that will be addressed is the inclusion of

the Department into this rule challenge. A review of Project

Refocus' rule challenge shows that it does not name the

Department as a party. In fact, Project Refocus does not

identify a rule or action where it claims the Department engag ed

in improper rulemaking or enforcement of an improper rule.

Rather, Project Refocus identifies United Safety Council's

determination as to the maximum number of treatment providers

approved under the DUI Program , pursuant to section 322.292, as

invalid. Thus, it is clear from Project Refocus' rule challenge

that it does not contain a claim against the Department or

Department action.

Because a rule challenge by statutory definition

necessarily involves a state "agency," the Clerk for the

Division of Adm inistrative Hearings, sua sponte , added the

Department into the case style and provided a copy of the

challenge. Certainly, in a rule challenge, the Department would

need to be put on notice if there was a challenge to one of its

rules or rule - making auth ority. In the instant case, the

Department has made two timely objections to its inclusion into

the case based on the fact that it was never noticed as a proper

party or ever served by Project Refocus. To date, neither

Project Refocus , nor United Safety Council has filed an

objection to the relief sought by the Department. Because the

rule challenge in the instant case fails to identify a

Department rule or action and the Department has not been served

as a party, the undersigned finds that it is proper to remove

the Department as a party in the instant case.

II. United Safety Council's Motion for Summary Final

Order.

United Safety Council's Motion for Summary Final Order

raises the dispositive issue of whether United Safety Council, a

private entit y, is an "agency" for the purposes of Project

Refocus' rule challenge. Before turning to the statutory and

case law analysis, it is helpful to set out Project Refocus'

rule challenge Petition in detail.

In the Petition, Project Refocus alleges that sectio n

322.292(2) directs the Department to adopt rules to implement

its supervisory authority over the DUI programs, and requires

the Department to adopt rules for statutorily required

education, evaluation , and supervision of DUI offenders.

Further, Project R efocus alleges that Department adopted Florida

Administrative Code R ule 15A - 10 , as required under section

322.292. According to the Petition, United Safety Council

operates a DUI Program under section 322.292 , and rule 15A - 10.

Project Refocus brings a r ule challenge under section

120.56(3) , claiming that United Safety Council had "exceeded the

powers delegated to the Department of Highway Safety and Motor

Vehicles" under the applicable Florida Statutes and Florida

Administrative Code. Project Refocus se eks an administrative

determination that United Safety Council failed to follow

statutory rulemaking procedure; exceeded the grant of its rule -

making procedure; enacted a rule or policy that is vague ,

because it fails to establish adequate standards for ag ency

decision or give the United Safety Council unbridled discretion;

and has adopted a rule or policy that is arbitrary or

capricious. As for relief, Project Refocus seeks an

administrative order awarding it damages for lost business and

income during th e period that United Safety Council's rule or

policy affected Project Refocus's interests; an order

reinstating Project Refocus onto the United Safety Council's

treatment provider list; and award ing attorneys fees and costs

under section 120.595(2).

The beginning point for determining whether or not Project

Refocus' rule challenge is proper is an examination of the APA

statutory definitions. Section 120.56(3)(a) , provides that "a

substantially affected person may seek an administrative

determination of t he invalidity of an existing rule at any time

during the existence of the rule." Further, "[t]he petitioner

has a burden of proving by a preponderance of the evidence that

the existing rule is an invalid exercise of delegated

legislative authority as to t he objections raised." Id . The

term "invalid exercise of delegated authority" is further

defined in section 120.52(8) . 2/ A reading of this definition of

"invalid exercise of delegated legislative authority , " shows

that a challenge goes to an "agency" ac tion involving a "rule"

or "rulemaking." Each of these terms, "agency," "rule , " and

"rulemaking," are in turn defined by statute.

Section 120.52(16) , defines a "rule," in part, as "each

agency statement of general applicability that implements,

interpre ts, or prescribes law or policy . . . ." /3 Similarly,

"rulemaking" is defined as "statutory language that explicitly

authorizes or requires an agency to adopt, develop, establish ,

or create any statement coming within the definition of the term

'r ule'." § 120.52(17), Fla. Stat. 4/ By definition, both "rules"

and "rulemaking" are directed by an "agency." The final

statutory definition for this analysis is for the term "agency"

found in section 120.52(1)(a), (b), and (c). 5/ A reading of the

statutory defi nition of an "agency" shows that the language is

limited to government officers an d listed government entities.

Applying these statutory definitions to the undisputed

facts in the instant case , it is clear that United Safety

Council is not an "agency" with in the APA definition. It is not

disputed that United Safety Council is a private Florida non -

profit corporation, not a governmental entity. As such, the

United Safety Council does not fit any of the definitions of an

"agency" provided in sections 120.52 (1)(a), (b) , or (c). Because

United Safety Council is not an "agency," it logically follows

that United Safety Council does not engage in "rule making" or

enact "rules" within the APA. Therefore, following the plain

language of chapter 120, United Safety Council is not subject to

a rule challenge under the APA.

The conclusion that United Safety Council is not an

"agency" is supported by case law holding , that private entities

are not subject to the APA. See First Quality Home Care, Inc.

v. Alliance for Ag ing, Inc. , 14 So. 3d 1149 (Fla. 3d DCA

2009)(holding that an area agency on aging, which is private

non - profit corporation, is not an Ð agency Ñ within the definition

of section 120.52(1); thus denying a writ of mandamus seeking

the private entity to refer a bid protest to the Division of

Administrative Hearings); Fla. Dep Ó t of Ins. v. Fla. Ass'n of

Ins. Agents , 813 So. 2d 981 (Fla. 1st DCA 2002)(holding that an

association, which was created by statute to make windstorm

insurance coverage available to Flori dians who could not obtain

the coverage through private insurers, was not an "agency" for

purposes of chapter 120, because the association did not fall

within any of the categories of entities identified as agencies

in section 120.52(1)); and Vey v. Bradf ord Union Guidance

Clinic, Inc. , 399 So. 2d 1137 (Fla. 1st DCA 1981).

Project Refocus relies upon the holding in Mae Volen Senior

Center Inc., v. Area Ag . on Aging Palm Beach/Treasure Coast,

Inc. , 978 So. 2d 191 (Fla. 4th DCA 2008), review denied , 1 So.

3 d 172 (Fla. 2009), for the proposition that United Safety

Council is an "agency , " because it is acting as a "quasi -

governmental agency , " by providing the DUI Program mandated by

section 322.292. Further, Project Refocus argues that if one

reads the defini tion of "agency" literally to hold that United

Safety Council is not subject to the APA, then the holding

reaches an absurd result. According to Project Refocus, the

absurd result is that there is no review of private entities

performing public work ; f or example, no independent review of

United Safety Council's decision not to select Project Refocus

as a treatment facility for the DUI Program.

Reading the decisions in Mae Volen and First Quality , it is

clear that the two district courts of appeal are in co nflict

concerning the interpretation of whether or not area agencies on

aging, which are private non - profit corporations serving a

governmental function, are "agencies" within the definition of

section 120.52(1).

The undersigned finds the statutory const ruction discussed

by the First Quality court that a private entity does not meet

the statutory definition of an agency more persuasive than the

analysis set out in Mae Volen . First Quality is more persuasive

because it applies the plain language of sectio n 120.52(1) , that

the APA does not extend to private entities. If the legislature

intended to subject private entities who contract to provide

public services to the APA, then the legislature may expand the

statutory definition. The undersigned, however, cannot expand

the definition.

Moreover, even if one considered the Mae Volen court's

holding that a private entity providing a government function is

an "agency" within chapter 120 , is correct, the instant case

would be legally distinguishable from Mae Vo len . The discussion

in Mae Volen shows that under the relevant statutes and rules of

administrative procedure, decisions made by area agencies on

aging were subject to competitive bidding in accordance with

state and federal regulations. Mae Volen , 978 S o. 2d at 193.

Mae Volen further discussed that the statutory scheme allowing

the Department of Elder Affairs to coordinate and administer

programs through private contracting agencies, the area agencies

on aging, was part of a federal program. Id. at 19 2 - 193 . Mae

Volen specifically recognized that the state's ability to

participate in the federal program and receive federal funding

required the state "to submit a plan consistent with federal law

regarding the provision of services for the elderly." Id. at

192. In fact, as Mae Volen outlines, pursuant to this

legislative direction, the Department of Elder Affairs and the

area agency on aging adopted a rule for bid protests for

contracts awarded by the area agency on aging. 978 So. 2d at

193. Consequen tly, if one accepts the Mae Volen , it is clear

that the legislature intended that contracts awarded by area

agencies on aging be subject to bid protests under chapter 120.

Unlike Mae Volen , in enacting section 322.292 , the

legislature did not provide lan guage - making decisions by the

private DUI Program subject to review under the APA. This

conclusion is further reflected by a review of Florida

Administrative Code Rule 15A - 10.028, which permits a DUI Program

to establish a treatment referral and list of " approved

providers," but does not provide for an appeal or review of the

DUI Program's decision. Thus, unlike Mae Volen , the legislature

did not create APA review for bringing the challenge against

United Safety Council's decision to exclude Project Refoc us as a

treatment provider.

Finally, Project Refocus argues that a literal reading of

the section 120.52(1) , concerning the definition of an "agency,"

here will reach an absurd result. Project Refocus argues that

the absurd result is that there is no rev iew or appeal of United

Safety Council's decision to exclude Project Refocus as an

approved treatment provider.

The First District Court of Appeal has cautioned courts

against deviating from the plain text of a statute purportedly

to avoid reaching what a court considers an "absurd result."

Nassau Cnty . v. Titcomb , 41 So. 3d 270, 279 (Fla. 1st DCA 2010).

As the district court of appeal noted, when improperly used, the

absurdity doctrine allows courts to substitute their judgment of

how legislation shoul d read, rather than how it does read , in

violation of the separation of powers enshrined in a rticle II,

section 3 of the Florida Constitution. Id. " When the language

of a statute is unambiguous, courts are bound to follow the

text." Id. (case citation om itted); see also Webster , et al .,

Statutory Construction In Florida: In Search of a Principled

Approach , 9 Fla. Coastal L. Rev. 435, 505 n. 482 (2008). It is

only when the literal interpretation of statutory terms

frustrates legislative intent, that the l iteral meaning must

yield to legislative intent for the statute as a whole.

Vildibill v. Johnson , 492 So. 2d 1047, 1049 (Fla. 1986); Dept of

Prof'l Reg., Bd. of Dentistry v. Fla . Dental Hygienist Ass'n ,

Inc. , 612 So. 2d 646, 654 (Fla. 1st DCA 1993); cf. S tate v.

Perez , 531 So. 2d 961, 963 (Fla. 1988)(rejecting literal meaning

leading to illogical result); see also Haddock v. Carmody , 1 So.

3d 1133 (Fla. 1st DCA 2009)(declining to read statute literally

in order to avoid an absurd result).

Turning to the in stant case , section 120.52(1) does not

define an "agency" for purposes of the APA to include a private

entity , even if that entity is providing some government

function. There is no legislative intent to subject private

entities, who provide government se rvices, to the APA. The

legislature could expand the definition of "agency" to include

private entities, if it wanted to. However, the legislature has

neither expanded the definition of "agency," nor provided for

review of the DUI Program's decision in c hoosing approved

treatment providers under section 322.292. It does not follow

that the legislature's decision not to subject a private entity

to the APA is an absurd result. 6/

Based on the foregoing, the undersigned rules the

following:

A) Granting Unit ed Safety Council's Motion for Summary

Final Order is granted and the Petition seeking a rule challenge

is dismissed. J urisdiction is retained to award United Safety

Council attorneys fees and costs against Project Refocus ,

pursuant to sections 57.105(5) and 120.595(6);

B) Counsel for United Safety Council and Project Refocus

are to confer within 30 days of this Summary Final Order to

determine whether or not the parties can stipulate reasonable

attorneys fees and costs; and if not able to stipulate, to

i nform the Division of Administrative Hearings, so that a

hearing may be conducted; and

C) T he Department of Highway Safety and Motor VehicleÓs

mot ion to remove it as a party is granted .

DONE AND ORD ERED this 3 rd day of October , 2011 , in

Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.d oah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3 rd day of October , 2011 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2010 version.

2/ Section 120.52(8) , provides that :

(8) "Invalid exercise of delegated

legislative authority" means action that

goes beyond the powers, functions, and

duties delegated by the Legislature. A

proposed or existing rule is an invalid

exercise of delegated legislative authority

if any one of the following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120. 54(3)(a) 1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a) 1.;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbrid led discretion in the agency;

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or

(f) The rule imposes r egulatory costs on

the regulated person, county, or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory objectives.

A grant of rulemaking authority is necessary , but not sufficient

to allow an agency to adopt a rule; a specific law to be

implemented is also required. An agency may adopt only rules

that implement or interpret the specific powers and duties

granted by the enabling statute. No agency shall have authority

to adopt a rule only bec ause it is reasonably related to the

purpose of the enabling legislation , and is not arbitrary and

capricious , or is within the agency's class of powers and

duties, nor shall an agency have the authority to implement

statutory provisions setting forth gene ral legislative intent or

policy. Statutory language granting rulemaking authority or

generally describing the powers and functions of an agency shall

be construed to extend no further than implementing or

interpreting the specific powers and duties confe rred by the

enabling statute.

3/ Section 120.52(16), provides:

(16) "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 information 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 memoran da which do

not affect either the private interests of

any person or any 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 with 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 Comp troller as chief

fiscal officer of the state and relating or

pertaining 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 information

resources management.

Similarly, the definition of the term "Rulemaking

authority"

4/ Section 120.52(17), provides:

(17) "Rulemaking authority" means statutory

language that explicit ly authorizes or

requires an agency to adopt, develop,

establish, or otherwise create any statement

coming within the definition of the term

"rule."

5/ Section 120.52(1), provides:

(1) "Agency" means the following officers

or governmental entities if act ing pursuant

to powers other than those derived from the

constitution:

(a) The Governor; each state officer and

state department, and each departmental unit

described in s. 20.04 ; the Board of

Governors of the State University System;

the Commission on Et hics; the Fish and

Wildlife Conservation Commission; a regional

water supply authority; a regional planning

agency; a multicounty special district, but

only when a majority of its governing board

is comprised of nonelected persons;

educational units; and e ach entity described

in chapters 163, 373, 380, and 582 and

s. 186.504 .

(b) Each officer and governmental entity in

the state having statewide jurisdiction or

jurisdiction in more than one county.

(c) Each officer and governmental entity in

the state ha ving jurisdiction in one county

or less than one county, to the extent they

are expressly made subject to this act by

general or special law or existing judicial

decisions.

This definition does not include any

municipality or legal entity created solely

by a municipality; any legal entity or

agency created in whole or in part pursuant

to part II of chapter 361; any metropolitan

planning organization created pursuant to s.

339.175 ; any separate legal or

administrative entity created pursuant to s.

339.175 of which a metropolitan planning

organization is a member; an expressway

authority pursuant to chapter 348 or any

transportation authority under chapter 343

or chapter 349; or any legal or

administrative entity created by an

interlocal agreement pursuant to s.

163.01(7) , unless any party to such

agreement is otherwise an agency as defined

in this subsection.

6/ A review of Florida Administrative Code Rule 15A - 10.042 ,

provides for complaints against DUI Programs to be filed with

the Department. Consequently , it appears that Project Refocus'

remedy is to file a complaint with the Department of Highway

Safety and Motor Vehicles under rule 15A - 10.042 , against United

Safety Council and to raise its concerns, rather than a rule

challenge against another private e ntity.

COPIES FURNISHED :

Jennifer Clark, Agency Clerk

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A - 430

2900 Apalachee Parkway, Mail Stop 61

Tallahassee, Florida 32399

Samuel B. Weissman, Esquire

Kramer Law Firm, P.A .

999 Douglas Avenue, Suite 3333

Altamonte Springs, Florida 32714

Douglas Sunshine, Esquire

Department of Highway Safety

and Motor Vehicles

2900 Apalachee Parkway, A432

Neil Kirkman Building, Room A - 432

Tallahassee, Florida 32399

Damon A. Chase, Esqu ire

Chase and Freeman

1525 International Parkway, Suite 4021

Lake Mary, Florida 32746

Brandon S. Peters, Esquire

Peters Trial Group, LLC

1844 West Fairbanks Avenue

Winter Park, Florida 32789

Jesslyn Krouskroup, Acting Coordinator

Joint Administrative P rocedure Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

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, Fl orida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Administrative Appeal with the

agency clerk of the Division of Administrative Hearings and a

sec ond copy, accompanied by filing fees prescribed by law, with

the District Court of Appeal, First District, or with the

District Court of Appeal in the appellate district where the

party resides. The Notice of Administrative Appeal must be

filed within 30 days of rendition of the order to be reviewed