12-003898RX Hoa Vuong, On Behalf Of Himself And Other Palm Beach County Dui Defendants (See Attached List Of Petitioners) vs. Department Of Law Enforcement Status: Closed DOAH Final Order on Tuesday, May 21, 2013.

Summary: Challenged rules are not invalid exercises of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOA VUONG, on behalf of himself )

and other Palm Beach County DUI )

Defendants , )

)

Petitioner s , )

)

vs. ) Case No. 12 - 3898RX

)

DEPARTMENT OF LAW ENFORCEMENT , )

)

Respondent . )

)

FINAL ORDER

An administrative hearing in this case was held on March 7

and 8, 2013, in Tallahassee, Florida, before Administrative Law

Judge (ALJ) William F. Quattlebaum, Division of Administrative

Hearings.

APPEARANCES

For P etitioner: Brian P. Gabriel, Esquire

Gabriel and Gabriel, LLC

Suite 206

4601 Military Trail

Jupiter, Florida 33458 - 4837

For Respondent: Ann Marie Johnson, Esquire

Department of Law Enforcement

2331 Phillips Road

Tallahassee, Florida 32308 - 5333

STATEMENT OF THE ISSUE

The issue in this case is whether Florida Administrative

Code r ules cited herein are invalid exercises of delegated

legislative authority.

PRELIMINARY STATEMENT

On December 4, 2012, Hoa Vuong and o thers (Petitioners)

filed a Petition Challenging Florida Administrative Code Rules

11D - 8.003, 11D - 8.004, 11D - 8.006 and 11D - 8.017 as invalid pursuant

to s ection 120.56(1), Florida Statutes (2012) . 1/

On December 7, 2012, a Notice of Hearing was issued

sche duling the administrative hearing to commence on January 2,

2013. On December 11, 2012, the parties filed an Agreed Motion

for Continuance that was granted, and the hearing was rescheduled

to commence on March 7, 2013.

On March 5, 2013, the parties file d a Pre - Hearing

Stipulation containing a Statement of Admitted Facts. The

stipulated facts have been adopted and are incorporated herein as

necessary.

The case was transferred to the undersigned Administrative

Law Judge on March 7, 2013.

At the hearin g, the Petitioners presented the testimony of

two witnesses and had Exhibits numbered 1 through 4, 7 through

38, 40 through 50, 52, 53, 58, 60, 62 through 65, 68, 70 through

73, 76, 77, 82, 84 through 87, 90, 92, 95, 97, 112, and 113

admitted into evidence . The Respondent presented the testimony

of two witnesses.

The T ranscript of the hearing was filed on March 25, 201 3 .

According to the schedule adopted at the hearing, both parties

filed p roposed o rders that have been considered in the

preparation of t his Final O rder.

FINDING S OF FACT

1. The Petitioners are defendants in " driving under the

influence " ( DUI ) criminal prosecutions pending in Palm Beach

County.

2. The " Intoxilyzer 8000 " is an alcohol breath testing

instrument manufactured by " CMI, Inc. " (CMI).

3. Each of the Petitioners was arrested and charged

with DUI after having submitted to an alcohol breath test on an

Intoxilyzer 8000 instrument.

4. The State of Florida intends to utilize the results of

the breath tests in prosecuting the char ges filed against the

Petitioners.

5. The Respondent ' s Alcohol Testing Program (ATP) is

responsible for the operation, inspection and registration of

alcohol breath testing instruments used for purposes of DUI

prosecutions in Florida. Section 316.1932 (1)(a)2 . , Florida

Statutes, provides as follows:

The Alcohol Testing Program within the

Department of Law Enforcement is responsible

for the regulation of the operation,

inspection, and registration of breath test

instruments utilized under the driving and

boating under the influence provisions and

related provisions located in this chapter

and chapters 322 and 327. The program is

responsible for the regulation of the

individuals who operate, inspect, and

instruct on the breath test instruments

utilized in the driving and boating under

the influence provisions and related

provisions located in this chapter and

chapters 322 and 327. The program is

further responsible for the regulation of

blood analysts who conduct blood testing to

be utilized under the dri ving and boating

under the influence provisions and related

provisions located in this chapter and

chapters 322 and 327. The program shall:

a. Establish uniform criteria for the

issuance of permits to breath test

operators, agency inspectors, instructor s,

blood analysts, and instruments.

b. Have the authority to permit breath test

operators, agency inspectors, instructors,

blood analysts, and instruments.

c. Have the authority to discipline and

suspend, revoke, or renew the permits of

breath test ope rators, agency inspectors,

instructors, blood analysts, and

instruments.

d. Establish uniform requirements for

instruction and curricula for the operation

and inspection of approved instruments.

e. Have the authority to specify one

approved curriculum for the operation and

inspection of approved instruments.

f. Establish a procedure for the approval

of breath test operator and agency inspector

classes.

g. Have the authority to approve or

disapprove breath test instruments and

accompanying parapherna lia for use pursuant

to the driving and boating under the

influence provisions and related provisions

located in this chapter and chapters 322

and 327.

h. With the approval of the executive

director of the Department of Law

Enforcement, make and enter in to contracts

and agreements with other agencies,

organizations, associations, corporations,

individuals, or federal agencies as are

necessary, expedient, or incidental to the

performance of duties.

i. Issue final orders which include

findings of fact and conclusions of law and

which constitute final agency action for the

purpose of chapter 120.

j. Enforce compliance with the provisions

of this section through civil or

administrative proceedings.

k. Make recommendations concerning any

matter within the purview of this section,

this chapter, chapter 322, or chapter 327.

l. Promulgate rules for the administration

and implementation of this section,

including definitions of terms.

m. Consult and cooperate with other

entities for the purpose of implemen ting the

mandates of this section.

n. Have the authority to approve the type

of blood test utilized under the driving and

boating under the influence provisions and

related provisions located in this chapter

and chapters 322 and 327.

o. Have the author ity to specify techniques

and methods for breath alcohol testing and

blood testing utilized under the driving and

boating under the influence provisions and

related provisions located in this chapter

and chapters 322 and 327.

p. Have the authority to app rove repair

facilities for the approved breath test

instruments, including the authority to set

criteria for approval.

Nothing in this section shall be construed

to supersede provisions in this chapter and

chapters 322 and 327. The specifications in

this section are derived from the power and

authority previously and currently possessed

by the Department of Law Enforcement and are

enumerated to conform with the mandates of

chapter 99 - 379, Laws of Florida.

6. The U.S. Department of Transportation maintai ns a

" Conforming Products List of Evidential Breath Measurement

Devices " (CPL) identifying various alcohol breath testing

instruments that ostensibly meet applicable federal regulations.

7. Pursuant to FDLE/ATP Form 34, incorporated by reference

in r ule 11D - 8.017, the only alcohol breath test instruments

that may be evaluated for use in Florida are those included on

the CPL.

8. On November 26, 2001, the Respondent received notice

that the Intoxilyzer 8000 met applicable requirements of the

National Hi ghway Traffic Safety Administration ' s model

specifications for evidentiary alcohol breath testers and that

the instrument was expected to be on the next published CPL.

9. The reafter, the Respondent began to review the

instrument ' s suitability for use in Florida. The Respondent ' s

evaluation was governed by the versions of r ule 11D Î 8.003(4) and

Form 34 in effect at that time.

10. To the extent that the Petitioners ' challenge is to

specific rule requirements that have been deleted or superseded,

such a c hallenge is outside the scope of this proceeding.

11. In April 2002, the Respondent began testing the

operation of two Intoxilyzer 8000 instruments received from CMI

(serial numbers 80 Î 00208 and 80 Î 00209) , but the tests were not

completed due to software issues.

12. In May 2002, the Respondent resumed testing the same

two instruments, software malfunctions apparently having been

resolved. One of the instruments (serial number 80 Î 00208)

successfully completed the testing process. An electrical

problem halted the testing of the second instrument (serial

number 80 Î 00209).

13. On October 3, 2002, the CPL that included the

Intoxilyzer 8000 was published in the Federal Register (Vol. 67,

No. 192).

14. On November 5, 2002, the Respondent adopted rule

11D - 8 .003(2) identifying the Intoxilyzer 8000 as an approved

alcohol breath test instrument. The rule currently provides as

follows:

Approval of Breath Test Methods and

Instruments.

(1) The Department has approved the

following method(s) for evidentiary brea th

testing: Infrared Light Test, also known as

Infrared Light Absorption Test.

(2) The Department approves breath test

methods and new instrumentation to ensure the

accuracy and reliability of breath test

results. The Department has approved the

foll owing breath test instrumentation for

evidentiary use: CMI, Inc. Intoxilyzer 5000

Series -- including any or all instruments

using one of the following programs: 5000

Basic Software Program; Florida Software

Program; R - Software Program; and CMI, Inc.

Intox ilyzer 8000 using software evaluated by

the Department in accordance with Instrument

Evaluation Procedures FDLE/ATP Form 34 -- Rev.

March 2004 .

(3) The Department has approved the

following options for use with Intoxilyzer

5000 Series instruments: keyboar d; simulator

recirculation; sample capture; pressure

switch setting at no less than two inches and

no more than six inches of water.

(4) A Department inspection performed in

accordance with Rule 11D - 8.004, F.A.C.,

validates the approval, accuracy and

re liability of an evidentiary breath test

instrument.

(5) The Department shall conduct evaluations

for approval of new instrumentation under

subsection (2) in accordance with Instrument

Evaluation Procedures FDLE/ATP Form 34 -- Rev.

March 2004.

(6) The av ailability or approval of new

instruments, software, options or

modifications does not negate the approval

status of previously approved instruments,

software, options or modifications.

( e mphasis added ) .

15. Although the Respondent had approved the Intoxi lyzer

8000 through the rule, it was not placed into service because

development of Florida - specific software had not been completed

at the time the rule was adopted.

The Exhaust Purge Valve

16. In August 2004, several of the Respondent ' s employees,

inclu ding Inspectors Matthew Malhiot and Roger Skipper, traveled

to the Kentucky headquarters of CMI to participate in development

of software specifically applicable to the Intoxilyzer 8000

instruments that would be placed into service in Florida.

17. CMI wa s in the process of testing a Florida - specific

Intoxilyzer 8000 at the time of the trip. The instrument was

being subjected to tests using gas samples containing known

alcohol concentrations. The reports produced by the instrument

were inaccurate, with t he alcohol levels being underreported by

the instrument.

18. The Respondent ' s employees Malhiot and Skipper were

aware of the issue and CMI ' s attempts to identify and remedy the

cause of the inaccurate reporting. CMI implemented a variety of

alterations to the instrument, changing out various hoses and

connectors, and drilling a small hole through the instrument ' s

" exhaust purge valve. " The instrument eventually produced

reports that accurately reflected the gas samples being used in

the tests.

19. Base d on the CMI tests, the version of the Intoxilyzer

8000 placed into service in Florida includes a hole drilled into

the exhaust purge valve.

20. The decision to drill the hole was made by a CMI

engineer. There was no evidence presented at the hearing as to

the rationale underlying the engineer ' s decision to drill the

hole.

21. The exhaust purge valve is a mechanism utilized only

during simulation testing and is not involved in actual alcohol

breath testing as would be performed on someone suspected of DUI.

22. The evidence is insufficient to establish that CMI ' s

drilling of the hole in the exhaust purge valve caused the

instrument to produce the expected results when tests were

performed with gas samples of known alcohol levels.

23. The Respondent h as subsequently conducted tests to

compare the operation of an Intoxilyzer 8000 with a hole drilled

through its exhaust purge valve and the operation of an

Intoxilyzer 8000 with an intact exhaust purge valve, and has

found both instruments to perform accur ately.

24. The evidence fails to establish that breath test

results are affected in any manner by the exhaust purge valve,

whether or not there is a hole drilled through the valve.

25. The Petitioners have asserted that the Respondent ' s

" failure " to " re - approve " the Intoxilyzer 8000 after the hole was

drilled in 2004, constitutes an invalid exercise of delegated

legislative authority. The evidence does not establish that such

a process was authorized or required by statute.

26. An administrative rule i n effect at the time of the

April 2004 tests required that the manufacturer provide written

notice to the Respondent as to " modifications " of approved

devices. CMI did not provide the Respondent with written notice

of the hole being drilled in the exhaust purge valve.

27. Despite the lack of written notice, the Respondent was

well aware of the drilled hole. The Respondent ' s employees

Malhiot and Skipper both were present at CMI headquarters during

the testing and were aware of the CMI engineer ' s decisio n to

drill the hole. Laura Barfield, the manager of the ATP , was

notified by a telephone call from Mr. Skipper that CMI had

drilled the hole in the exhaust purge valve.

28. In December 2004, the Respondent ' s rules were revised

to delete the requirement that notice of written modification of

approved instruments be provided to the Respondent.

29. The Petitioners have asserted that the 2004 deletion of

the required notification from the rule was an invalid exercise

of delegated legislative authority. Th e assertion is outside the

jurisdiction of this proceeding, which is limited to a

determination as to whether the Respondent ' s currently existing

rules constitute an invalid exercise of delegated legislative

authority.

30. In March 2006, the Respondent a pproved the Intoxilyzer

8000 for evidentiary breath testing usage in the State of

Florida. An update to the software programmed into the

instruments occurred in October 2006.

31. The Petitioners have noted that case law has held

modifications to the Int oxilyzer 8000 to render the test results

unreliable . The Petitioners assert that , accordingly, the

instrument should have been subjected anew to the approval

process after a hole w as drilled in the exhaust purge valve.

32. On at least two occasions, lo cal law enforcement

agencies altered specific Intoxilyzer 8000 instruments after the

Respondent had approved the specific instruments for use in

evidentiary breath testing in 2006. Test results from such

altered instruments have been determined by the cou rts to lack

scientific reliability.

33. The evidence fails to establish that local law

enforcement agency alterations of individual Intoxilyzer 8000

instruments renders the Intoxilyzer 8000 model, as approved by

the Respondent and placed into service in 2006, unreliable for

its intended use when breath alcohol tests are properly

administered by trained operators.

34. The Petitioners ' assertion that CMI ' s drilling of the

hole in the exhaust purge valve requires that the Intoxilyzer

8000 be removed from t he U.S. Department of Transportation ' s CPL

is outside the jurisdiction of this proceeding.

The Flow Sensor

35. In order to obtain a scientifically reliable breath

test result, a test subject must provide a continuous sample of

" deep lung air " through the breath test instrument. A " flow

sensor " in the instrument monitors the flow of lung air through

the instrument and signals a constant " tone " when the air

pressure being generated by a test subject is sufficient to

provide an adequate breath sample.

36. Pursuant to s ection 316.1932(1)(a)2 . , cited above, the

Respondent is responsible for the curriculum used to train the

local agency inspectors , as well as operators of the breath test

instruments. The curriculum states that " a minimum acceptable

record sa mple is defined as a breath sample that has met the

minimum criteria of the instrument ' s analysis to ensure that the

breath sample is reliable, including that the subject must

provide a continuous breath sample of at least 1.1 liters of

breath. "

37. Prio r to use of a specific breath test machine by a

local law enforcement agency for evidentiary purposes, the actual

instrument must be inspected by, and registered with, the

Respondent, pursuant to r ule 11D - 8.004, which provides as

follows:

Department Inspe ction and Registration of

Breath Test Instruments.

(1) The Department shall register and

inspect a breath test instrument prior to

such instrument being initially placed into

evidentiary use by an agency. The

inspection validates the instrument ' s

approv al for evidentiary use, and the

registration denotes an instrument approved

pursuant to these rules and shall reflect

the registration date, the owner of the

instrument, the instrument serial number,

the manufacturer, and the model designation.

(2) Regi stered breath test instruments

shall be inspected by the Department at

least once each calendar year, and must be

accessible to the Department for inspection.

Any evidentiary breath test instrument

returned from an authorized repair facility

shall be insp ected by the Department prior

to being placed in evidentiary use. The

inspection validates the instrument ' s

approval for evidentiary use.

(3) Department inspections shall be

conducted in accordance with Department

Inspection Procedures FDLE/ATP Form 35 - - Rev.

August 2005 for the Intoxilyzer 5000 Series,

or Department Inspection Procedures --

Intoxilyzer 8000 FDLE/ATP Form 36 -- Rev.

August 2005 for the Intoxilyzer 8000 ; and

the results reported on FDLE/ATP Form 26 --

Department Inspection Report -- Rev. March

2 004 for the Intoxilyzer 5000 Series, or

FDLE/ATP Form 41 -- Department Inspection

Report -- Intoxilyzer 8000 -- Rev. August 2005

for the Intoxilyzer 8000.

(4) Department Inspectors shall be employed

by the Department to register evidentiary

breath test instru ments, to conduct

inspections and maintenance of breath test

instruments and related equipment and

facilities, to conduct and monitor training

classes, and to otherwise ensure compliance

with Chapter 11D - 8, F.A.C. (emphasis

added).

38. Each instrument is also inspected on a monthly basis by

a local agency inspector pursuant to r ule 11D - 8.006, which

provides in relevant part as follows:

Agency Inspection of Breath Test

Instruments.

(1) Evidentiary breath test instruments

shall be inspected by an agency i nspector at

least once each calendar month. The agency

inspection shall be conducted in accordance

with Agency Inspection Procedures FDLE/ATP

Form 16 -- Rev. March 2004 for the

Intoxilyzer -- 5000 Series, or Agency

Inspection Procedures -- Intoxilyzer 8000

FDLE /ATP Form 39 -- Rev. August 2005 for the

Intoxilyzer 8000 ; and the results reported

on FDLE/ATP Form 24 -- Agency Inspection

Report -- Rev. March 2001 for the Intoxilyzer

5000 Series, or FDLE/ATP Form 40 -- Agency

Inspection Report -- Intoxilyzer 8000 --

March 2004 fo r the Intoxilyzer 8000 .

* * *

(3) Whenever an instrument is taken out of

evidentiary use, the agency shall conduct an

agency inspection. The agency shall also

conduct an agency inspection prior to

returning an instrument to evidentiary use.

(emph asis added).

39. Flow sensor testing and calibration during an

inspection is not specifically required by statute or rule.

40. The Petitioners have asserted that the challenged rules

are vague and fail to establish adequate standards for agency

decision s because they do not require calibration of flow sensors

during inspections.

41. The evidence fails to establish that the absence of a

specific rule requirement that flow sensors be calibrated renders

the rules an invalid exercise of delegated legislati ve authority.

42. The Respondent currently tests and, if necessary,

recalibrates flow sensors as part of a quality control process

during an annual inspection performed on each instrument being

used in Florida in evidentiary breath testing. The Responde nt

developed the current method by which flow sensors are examined.

Examination of flow sensors requires specialized equipment that

is not presently available to local agency inspectors.

43. The evidence is insufficient to establish that the

scientific reliability of reported breath test results is related

to the function of an instrument ' s flow sensor. The evidence

establishes that the instrument will not report results of a

breath alcohol test if the quantity of air provided by a test

subject is insuf ficient.

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.56, Fla. Stat.

45. The Petitioners have asserted that r ules 11D - 8.003,

11D - 8.004, 11D - 8.006 and 1 1D - 8.017 are invalid exercises of

delegated legislative authority. Section 120.52(8 ) provides the

following relevant definition:

" Invalid exercise of delegated legislative

authority " means action that goes beyond the

powers, functions, and duties delegate d 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 fort h 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 unbridled discretion in the agency;

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is n ot 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 regulatory costs on

the regulated person, county, or city which

could be reduced by the adoption of le ss

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 because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and cap ricious or is within the agency ' s

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally descri bing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the enabling statute.

46. In a challenge to an existing agency rule, the

Petitioner has the burden of proving by a preponderance of the

evidence that the existing rule is an invalid exercise of

delegated legislative authority as to the objections raised.

§ 120.56(3)(a) , Fla. Stat . The Petitioners have asserted that

r ules 11D - 8.003, 11D - 8.004, 11D - 8.006 and 11D - 8.017 are invalid

exercises of delegated legislative authority. In this case, the

burden has not been met.

47. Rules 11D - 8.003, 11D - 8.004 and 11D - 8.006 have been set

forth herein. Rule 11D - 8.017 incorporates by reference the forms

ot herwise identified herein.

48. There was no evidence presented that the Respondent

failed to follow applicable rulemaking procedures in the adoption

of the referenced rules or in the 2004 rule revision that

eliminated the requirement that a manufacturer provide written

notification of modifications to an instrument. The Petitioners'

challenge to the 2004 rule revision was not timely filed. See

§ 120.56(2), Fla. Stat.

49. The evidence fails to establish that the Respondent has

exceeded its grant of rul emaking authority , or that any of the

referenced rules enlarge, modify or contravene the specific

provision of law being implemented. The evidence fails to

establish that the rules are vague, that the rules fail to

establish adequate standards, or that th e rules vest unbridled

discretion in the agency. The evidence fails to establish that

the rules are arbitrary or capricious as those terms are defined.

There was no evidence presented as to any potential reduction in

regulatory costs.

ORDER

Based on th e foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by the Petitioners in

this case pursuant to s ection 120.56(3)(a) , Florida Statutes, and

seeking a determination that Florida Administrative Code Rules

11D - 8.003, 11D - 8.004, 11D - 8.006 and 11D - 8.017 are invalid

exercises of delegated legislative authority, is hereby

DISMISSED.

DONE AND ORDERED this 21st day of May , 2013 , in Tallahassee,

Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

A dministrative 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.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative He arings

this 21st day of May , 2013 .

ENDNOTE

1/ All statutory references are to Florida Statutes (2012),

unless otherwise noted.

COPIES FURNISHED:

Gerald M. Bailey, Commissioner

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, F lorida 32302 - 1489

(e - Served)

Michael Ramage, General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

(e - Served)

Ken Plante, Coordinator

Joint Administrative Procedure Committee

Pepper Building, Room 68 0

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(e - Served)

Liz Cloud, Program Administrator

Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399

(e - Served)

Brian P. Gabriel, Esquire

Gabriel and Gabri el, LLC

Suite 206

4601 Military Trail

Jupiter, Florida 33458 - 4837

Ann Marie Johnson, Esquire

Department of Law Enforcement

2331 Phillips Road

Tallahassee, Florida 32308 - 5333

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 administrative appeal w ith the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appel late district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.