93-001178RX Michael Cortes, Taliver Heath, Robert Klepper, And Mohit Ramani vs. Board Of Regents Status: Closed DOAH Final Order on Friday, May 21, 1993.

Summary: No factual predicate to support rule invalidity in view of express statutory authority for rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL CORTES, TALIVER HEATH )

ROBERT KLEPPER and MOHIT RAMANI, )

)

Petitioners, )

)

vs. ) CASE NO. 93-1178RX

)

STATE OF FLORIDA, BOARD OF )

REGENTS, )

)

Respondents. )

and )

)

FLORIDA PUBLIC INTEREST )

RESEARCH GROUP, INC. )

)

Intervenor. )

_________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Don W. Davis, held a formal hearing in the above-

styled case on April 19, 1993, in Tallahassee, Florida. The following

appearances were entered:

APPEARANCES

For Petitioners: Charles Daniel Sikes

1105 Hays Street

Tallahassee, Florida 32301

For Respondent: Claire D. Dryfuss

Department of Legal Affairs

PL-01 The Capitol

Tallahassee, Florida 32399-1050

For Intervenor: Carlos Alvarez

Post Office Box 6526

Tallahassee, Flordia 32314-6526

David Simon

Florida Public Interest Research Group

420 East Call Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether Rule 6C-7.003(9), Florida Administrative Code, is an invalid

exercise of delegated legislative authority?

PRELIMINARY STATEMENT

On March 1, 1993, Petitioners filed a Petition to Determine the Invalidity

of a Rule with the Division of Administrative Hearings, seeking invalidation of

Rule 6C-7.003(9), Florida Administrative Code, as an invalid exercise of

delegated legislative authority. Intervenor's March 9, 1993, petition seeking

intervention was granted by order dated March 17, 1993.

Petitioners' motion to amend the rule challenge to include two

constitutional arguments was not opposed by Respondent or Intervenor and was

subsequently granted at the final hearing.

All parties stipulated to waiver of time limitations under Section 120.56,

Florida Statutes (1991).

A final hearing was held on April 19, 1993, in Tallahassee, Florida.

Although no witnesses were presented by the parties, stipulated facts were

agreed upon by the parties. Petitioners' one exhibit, setting forth the

stipulated facts, was admitted into evidence. Further, all parties stipulated

to the existence of facts sufficient to support the standing of Petitioners and

Intervenor in this case. No transcript of the final hearing was provided,

although all parties submitted proposed final orders. Those proposed orders

were relied upon in the preparation of this final order and proposed factual

findings are addressed in the appendix to this final order.

STATEMENT OF FACTS

1. Petitioners are full-time college students currently enrolled at the

Florida State University, a university authorized and funded by the State of

Florida and under the direction and control of the State of Florida, Board of

Regents. By virtue of the operation of Rule 6C-7.003(9), Florida Administrative

Code, promulgated by the State of Florida, Board of Regents, Petitioners have

been substantially affected at the time of fee payment for class registration by

the use of a negative checkoff method of donation to Florida Public Interest

Research Group, Inc. (Florida PIRG) authorized by the before-mentioned rule.

2. Florida PIRG is a statewide student organization with approximately

40,000 members at three universities. Students who pay the fee are members of

Florida PIRG. Florida PIRG is an independent, non-partisan, nonprofit

organization involved in research, education, writing, publicity, lobbying, and

litigation with respect to numerous public issues, including coastal protection

from offshore drilling, environmental preservation, consumer protection, hunger

and homelessness, voter registration, and an open democratic process.

3. Florida PIRG is incorporated under the laws of Florida, having its

principal place of business at 420 East Call Street, Tallahassee, Florida 32301.

Florida PIRG's policies are determined by its Board of Directors, which is

composed of student representatives from the participating universities. The

implementation of these policies is largely in trust of Florida PIRG's

professional staff and the students who work with it.

4. Florida PIRG has two basic goals. Florida PIRG's first goal is to

involve university students in public affairs so as to broaden their educational

experiences and help develop a more sophisticated and active electorate.

Florida PIRG accomplishes these goals by giving students the opportunity to

participate on every level of its activities, from conducting basic research to

formulating organizational policy. A number of students at Florida PIRG's three

campus chapters participate actively in Florida PIRG internship programs, all of

whom receive academic credit for their work. Florida PIRG's second goal is to

work for social and political change as advocated by its membership.

5. The challenged rule is Rule 6C-7.003(9), Florida Administrative Code.

This rule provides:

(9) Each university president is empowered

annually to authorize the collection of an

additional fee for the financing of chartered

non-profit public interest research

organizations, provided that at least a

majority of the students sign a written

petition requesting that such a fee be

collected.

(a) An additional fee shall be structured

only in the form either of a positive or

negative checkoff system in the sole

discretion of the president as follows:

1. A positive checkoff means the student must

designate by initialling or marking a box on

the registration or fee card that the student

wishes to fund the public interest research

group. If a student does not so designate, no

fee will be assessed.

2. A negative checkoff means the student must

designate by initialling or marking a box on

the registration or fee card that the student

does not wish to fund the public interest

research group. If a student does not so

designate, the fee will be assessed.

(b) Any such organizations must maintain a

level of collection as set by the university.

The university may recover its costs incurred

in collecting the fee, providing such costs

not exceed 10 percent of the fees collected.

The university has no responsibility for the

actions or non-actions of such organizations

for which it collects fees. Notwithstanding

the above, any funding system presently being

used by any university which was formulated

in accordance with this section prior to this

amendment shall remain valid but shall be

changed to comply with this section, as

amended, prior to the Fall semester of 1983.

6. The specific authority for the challenged rule is Sections 240.209(1),

(3)(d), and (q), Florida Statutes.

7. The specific laws implemented by the rule are sections 240.209(1),

240.209(3)(d), 240.209(3)(g), 240.2097, 240.227(20), 240.235(1), 240.264-.267,

240.531(3), 240.533(4)(a), and 832.07(1), Florida Statutes.

CONCLUSIONS OF LAW

8. Pursuant to Sections 120.56, Florida Statutes, the Division of

Administrative Hearings has jurisdiction over the parties and the subject

matter.

9. Pursuant to stipulation, all parties have standing in this proceeding.

10. Petitioners have alleged that Rule 6C-7.003(9), Florida Administrative

Code, is an invalid exercise of delegated legislative authority. An "invalid

exercise of delegated legislative authority" is defined in Section 120.52(8),

Florida Statutes, as follows:

(8) "Invalid exercise of delegated

legislative authority" means action which 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 or

more of the following apply:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

set forth in s. 120.54;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(7);

(c) The rule enlarges, modifies, or

contravenes the specific provisions of the

law implemented, citation to which is required

by s. 120.54(7);

(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.

11. Petitioners bear the burden of proof in this proceeding. Florida

League of Cities, Inc. v. Department of Insurance and Treasurer, 540 So.2d 850

(Fla. 1st DCA 1989); Department of Administration, Division of Retirement v.

Albanese, 455 So.2d 639 (Fla. 1st DCA 1984); and Agrico Chemical Company v.

Department of Environmental Regulation, 365 So.2d 759 (Fla. 2nd DCA 1979).

12. Petitioners argue that Rule 6C-7.00(9), is an invalid exercise of

delegated legislative authority because:

(a) The rule permits university presidents to

utilize State of Florida resources in fund

raising activities for public interest

research groups without authorization of any

express or implied statutory language and in

direct contravention of Section 240.209(5)(c),

Florida Statutes (1991), which compels

Respondent Board of Regents to coordinate "the

roles of the universities in order to best

meet state needs and reflect cost-effective

use of state resources."

(b) This rule authorizes a negative check-off

requiring that "the student must designate by

initialling or marking a box on the

registration or fee card that the student does

not wish to fund the public interest research

group. If the student does not so designate,

the fee will be assessed." Florida

Administrative Code Rule 6C-7.003(9)(a)2.

At the Florida State University, the

Petitioners must mail . . . [a] refund request

form . . . to be reimbursed the fee at an

unspecified later date thereby providing the

Florida Public Interest Research Group an

involuntary interest free loan. No express or

implied statutory authority exists for the

Board to provide private public interest

research groups with interest free loans from

the pockets of its students.

(c) This rule clearly states: "The

university may recover its cost incurred in

collecting the fee, providing such costs not

exceed 10 percent of the fees collected."

Florida Administrative Code Rule

6C-7.003(9)(b). Therefore, this rule is

arbitrary and capricious in granting

university presidents unbridled discretion

whether to charge any costs to public interest

research groups for the collection of this

fee. If, however a university president does

decide to charge for the fair cost of the

collection of this fee, she is limited to

charging no more than 10 percent of the fees

collected. Either way, this administrative

rule allows university presidents to disburse

State of Florida funds in the way of salaries

for State of Florida employees and other

office and administrative expenses for the

cost of collection of this fee without

legislative authority.

13. Section 240.209(3)(q), Florida Statutes, provides the Board of Regents

broad authority to: Adopt such rules as are necessary to carry out its duties

and responsibilities.

14. Section 240.209(1), Florida Statutes, sets forth a clear statement of

the "duties and responsibilities" of the Board of Regents as follows:

The Board of Regents is primarily responsible

for adopting systemwide rules and policies;

planning for the future needs of the State

University System; planning the programmatic,

financial, and physical development of the

system; reviewing and evaluating the

instructional, research, and service programs

at the universities and monitoring the fiscal

performance of the universities.

(Emphasis added.)

14. The term "programmatic" in the statute imbues the Board of Regents

with the broad responsibility to develop the research and educational programs

of the state university system. Just as the term "financial" gives the Board

the authority to determine all the financial programs necessary to run the state

university system. No other agencies are given these responsibilities by

Section 240.209(1), Florida Statutes.

15. As discerned from Section 240.105, Florida Statutes, legislative

intent for the Board of Regents' duties and responsibilities includes programs

dealing with public interest as a part of the Board's research and educational

programs responsibility. Section 240.105, Florida Statutes, provides:

(1) The Legislature finds it in the public

interest to provide a system of higher

education which is of the highest possible

quality; which enables students of all ages,

backgrounds, and levels of income to

participate in the search for knowledge and

individual development; which stresses

undergraduate teaching as its main priority;

which offers selected professional, graduate,

and research programs with emphasis on state

and national needs; which fosters diversity

of educational opportunity; which promotes

service to the public; which makes effective

and efficient use of human and physical

resources; which functions cooperatively with

other educational institutions and systems;

and which promotes internal coordination and

the wisest possible use of resources.

(2) The mission of the state system of

postsecondary education is to develop human

resources, to discover and disseminate

knowledge, to extend knowledge and its

application beyond the boundaries of its

campuses, and to serve and stimulate society

by developing in students heightened

intellectual, cultural, and humane

sensitivities; scientific, professional,

and technological expertise; and a sense of

purpose. Inherent in this broad mission are

methods of instruction, research, extended

training, and public service designed to

educate people and improve the human

condition. Basic to every purpose of the

system is the search for truth.

(Emphasis added.)

16. Appropriately, the the explicit legislative intent to have public

interest be an integral part of the research and educational component amply

provide authority for Rule 6C-7.003(9), Florida Administrative Code See,

Florida League of Cities v. Department of Environmental Regulation, 603 So.2d

1363 (Fla. 1st DCA 1992).

17. Petitioners' argument that the lack of explicit, specific language in

Chapter 240, Florida Statutes, for the establishment of public interest research

organizations, coupled with specific language for other higher education

programs, negates a finding of authority for the rule is unpersuasive. The

explicit programs within Chapter 240 are not the only programs allowed in the

state university system. The legislature has provided sweeping language under

Section 240.209(1), Florida Statutes, giving the Board of Regents broad

authority to develop programs within the state university system, and has

further provided legislative intent under Section 240.105, Florida Statutes, as

to the substance of those programs. It must be further noted that if only the

explicit programs are allowed, the vast majority of educational programs in the

state university system would be improper since they are not explicitly provided

for in Chapter 240, Florida Statutes. Examples of these programs range from law

reviews to acquired immune deficiency syndrome research, to numerous

agricultural research programs.

18. Section 240.209(1), Florida Statutes, serves as the "law implemented"

for a number of rules involving higher education programs. Included rules are

Rule 6C-9.012, Florida Administrative Code - Intercollegiate Athletics

Operations; Rule 6C-8.007, Florida Administrative Code - State University System

Press of Florida; and Rule 6C-0.017, Florida Administrative Code - Faculty

Practice Plans. Petitioners' interpretation that the legislature only intended

the implementation of specifically expressed programs by the Board of Regents,

is not consistent with a system of higher education where the flexibility of

adding and deleting programs on a continuous basis cannot be performed by

limited legislative overview.

19. Courts have consistently held that the interpretation of statutes by

those administrative officers and agencies delegated by the legislature the

authority for the administration of the statute should be given "great weight."

See Austin v. Austin, 350 So.2d 102, 104 (Fla. 1st DCA 1977), cert. denied, 357

So.2d 184 (Fla. 1978). The agency's interpretation is especially persuasive

where the interpretation has been established for a lengthy time period. See

Florida Dairy Farmers Fed'n v. Borden Co., 155 So.2d 699, 701 (Fla. 1st DCA

1963).

20. There is no factual support for Petitioners' argument that students

are required to supply public interest research groups with interest free loans.

Rule 6C-7.003(9), Florida Administrative Code does not expressly or impliedly

provide for such a procedure. Accordingly, it is not necessary to determine

whether such a procedure is a valid exercise of delegated legislative authority.

If a particular university has such a procedure, the wrongful application of an

otherwise valid rule does not make such a rule invalid. Hasper v. Department of

Administration, 459 So.2d 398 (Fla. 1st DCA 1984). Such wrongful application

should, if it exists, more appropriately be the subject of separate formal

proceedings pursuant to a petition filed by affected persons in a proceeding

pursuant to Section 120.57, Florida Statutes.

21. Allegations regarding the invalidity of Rule 6C-7.003(9), Florida

Administrative Code, because of the "unbridled discretion" given to university

presidents to charge costs for the collection of the fee is unsupported by any

factual predicate showing that the challenged rule's discretionary cost recovery

allowance of between 0 to 10 percent is improper. The Board of Regents has

legislative authority to structure the "financial" format to be used in the

state university system. Section 240.209(1), Florida Statutes (1991).

22. With regard to Petitioners' allegations regarding the

constitutionality of Rule 6C-7.003(9), Florida Administrative Code, the Division

of Administrative Hearings is without authority to determine the

constitutionality of an existing rule. Key Haven Associated Enterprises, Inc.

v. Board of Trustees of the Internal Improvement Trust Fund, 427 So.2d 153 (Fla.

1982); Cook v. Florida Parole and Probation Commission, 415 So.2d 845 (Fla. 1st

DCA 1982).

Based on the foregoing, it is found that Petitioners have failed to carry

their burden of proving that the challenged rule is an invalid exercise of

delegated legislative authority and the Petition is dismissed.

DONE and ORDERED this 21st day of May, 1993, in Tallahassee, Leon County,

Florida.

___________________________________

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of May, 1993

APPENDIX

All proposed final orders contained the stipulated facts of the parties and

were adopted. Further, Respondent Board of Regents' additional proposed

findings in paragraph numbers 5, 6, and 7, are based upon official recognition

of pertinent statutes and rules. Consequently, those findings were adopted.

COPIES FURNISHED:

Charles Daniel Sikes

1105 Hays Street

Tallahassee, FL 32301

Greg A. Gleason

Suite 1522

Florida Education Center

Tallahassee, FL 32399-1950

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, FL 32399-1300

Claire Dryfuss

Assistant Attorney General

Department of Legal Affairs

PL-01, The Capitol

Tallahassee, Florida 32399-1050

Carlos Alverez

P. O. Box 6526

Tallahassee, FL 323314-6526

David S. Simon

FPIRG, Inc.

420 East Call Street

Tallahassee, FL 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND 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 APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE

ORDER TO BE REVIEWED.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

MICHAEL CORTES, TALIVER HEATH, NOT FINAL UNTIL TIME EXPIRES TO

ROBERT KLEPPER, and FILE MOTION FOR REHEARING AND

MOHIT RAMANI, DISPOSITION THEREOF IF FILED

Petitioner, CASE NO. 93-1886

DOAH CASE NO. 93-1178RX

vs.

STATE OF FLORIDA, BOARD OF

REGENTS and FLORIDA PUBLIC

INTEREST RESEARCH GROUP, INC.,

Respondent.

______________________________/

Opinion filed April 25, 1995.

An appeal from an order of Hearing Officer Don W. Davis of the Division of

Administrative Hearings.

Charles Daniel Sikes of the Law Office of Michael R. Barnes, Key West, for

Appellants.

Robert A. Butterworth, Attorney General; Claire D. Dryfuss, Assistant Attorney

General, Tallahassee, for Appellee Board of Regents.

Carlos Alvarez of Hopping Boyd Green & Sams, Tallahassee, for Appellee Florida

Public Interest Research Group, Inc.

BENTON, J.

Appellants initiated proceedings under section 120.56, Florida Statutes

(1993) by filing a petition to determine the invalidity of a rule. They

challenge Florida Administrative Code Rule 6C-7.003(9), which leaves to

university presidents the decision whether to "authorize collection of an

additional fee for the financing of chartered non-profit public interest

research organizations," if certain conditions are met; and confers discretion

on university presidents, when collection is authorized, to choose between a

"positive or negative checkoff system." Florida Public Interest Research Group,

Inc. (PIRG), participated in the rule challenge proceedings as an intervenor

urging that the rule be upheld. We affirm the final order denying the petition

to determine the invalidity of a rule, except insofar as it creates standardless

discretion to choose a "negative checkoff system."

Facts Found Below

On the basis of the parties' stipulation, the final order found the

following facts:

1. Petitioners are full-time college students

currently enrolled at the Florida State

University, a university authorized and funded

by the State of Florida and under the

direction and control of the State of Florida,

Board of Regents. By virtue of the operation

of Rule 6C-7.003(9), Florida Administrative

Code, promulgated by the State of Florida,

Board of Regents, Petitioners have been

substantially affected at the time of fee

payment for class registration by the use of a

negative checkoff method of donation to

Florida Public Interest Research Group, Inc.

(Florida PIRG) authorized by the before-

mentioned rule.

2. Florida PIRG is a statewide student

organization with approximately 40,000 members

at three universities. Students who pay the

fee are members of Florida PIRG. Florida PIRG

is an independent, non-partisan, nonprofit

organization involved in research, education,

writing, publicity, lobbying, and litigation

with respect to numerous public issues,

including coastal protection from offshore

drilling, environmental preservation, consumer

protection, hunger and homelessness, voter

registration, and an open democratic process.

3. Florida PIRG is incorporated under the

laws of Florida, having its principal place of

business at 420 East Call Street, Tallahassee,

Florida 32301. Florida PIRG's policies are

determined by its Board of Directors, which is

composed of student representatives from the

participating universities. The

implementation of these policies is largely in

trust of Florida PIRG's professional staff and

the students who work with it.

4. Florida PIRG has two basic goals. Florida

PIRG's first goal is to involve university

students in public affairs so as to broaden

their educational experiences and help develop

a more sophisticated and active electorate.

Florida PIRG accomplishes these goals by

giving students the opportunity to participate

on every level of its activities, from

conducting basic research to formulating

organizational policy. A number of students

at Florida PIRG's three campus chapters

participate actively in Florida PIRG

internship programs, all of whom receive

academic credit for their work. Florida

PIRG's second goal is to work for social and

political change as advocated by its

membership.

5. The challenged rule is Rule 6C-7.003(9),

Florida Administrative Code. This rule

provides:

(9) Each university president is empowered

annually to authorize the collection of an

additional fee for the financing of chartered

non-profit public interest research

organizations, provided that at least a

majority of the students sign a written

petition requesting that such a fee be

collected.

(a) An additional fee shall be structured only

in the form either of a positive or negative

checkoff system in the sole discretion of the

president as follows:

1. A positive checkoff means the student must

designate by initialling or marking a box on

the registration or fee card that the student

wishes to fund the public interest research

group. If a student does not so designate, no

fee will be assessed.

2. A negative checkoff means the student must

designate by initialling or marking a box on

the registration or fee card that the student

does not wish to fund the public interest

research group. If a student does not so

designate, the fee will be assessed.

(b) Any such organizations must maintain a

level of collection as set by the university.

The university may recover its costs incurred

in collecting the fee, providing such costs

[do] not exceed 10 percent of the fees

collected. The university has no

responsibility for the actions or non-actions

of such organizations for which it collects

fees. Notwithstanding the above, any funding

system presently being used by any university

which was formulated in accordance with this

section prior to this amendment shall remain

valid but shall be changed to comply with this

section, as amended, prior to the Fall

semester of 1983.

6. The specific authority for the challenged

rule is Sections 240.209(1),(3)(d), and (q),

Florida Statutes.

7. The specific laws implemented by the rule

are sections 240.209(1), 240.209(3)(d),

240.209(3)(g), 240.2097, 240.227(20), 240.235

(1), 240.264-.267, 240.531(3), 240.533(4)(a),

and 832.07(1), Florida Statutes.

The parties stipulated that petitioners and intervenor have standing, as a

matter of fact.

Petitioners' Burden

Section 120.56(1), Florida Statutes (1993) authorizes affected persons to

"seek an administrative determination of the invalidity of the rule on the

ground that the rule is an invalid exercise of delegated legislative authority.

As the "one[s] who attack[ed] the. . .rule," Agrico Chemical Co. v. State Dep't

of Envtl. Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978), cert. denied, 376

So.2d 74 (Fla. 1979), petitioners share the burden to show, at an administrative

hearing,

that (1) the agency adopting the rule has

exceeded its authority; (2) that the

requirements of the rule are not appropriate

to the ends specified in the legislative act;

and (3) the requirements contained in the rule

are not reasonably related to the purpose of

the enabling legislation but are arbitrary and

capricious,

Department of Admin., Div. of Retirement v. Albanese, 445 So.2d 639, 641 (Fla.

1st DCA 1984) (citation omitted), or that the rule is otherwise an invalid

exercise of delegated legislative authority within the meaning of section

120.52(8), Florida Statutes (1993). The challengers' burden to demonstrate an

invalid exercise of delegated legislative authority "is a stringent one indeed."

Agrico, 365 So.2d at 763.

On appeal, "[i]n keeping with the rule of decision which forbids reaching

constitutional questions when cases can be disposed of on statutory grounds, we

turn first to p[etitioner]s' statutory claim[s]." Silver Rose Entertainment,

Inc. v. Clay County, 646 So.2d-246, 248 (Fla. 1st DCA1994)-, petition for review

filed, No. 84,875 (Fla. Dec. 22, 1994). Although appellants do not cite section

120.52(8), Florida Statutes (1993), they maintain that the rule they have

challenged is an invalid exercise of delegated legislative authority, on several

bases enumerated in the statute. An "invalid exercise of delegated legislative

authority" is defined in Section 120.52(8), Florida Statutes, in part as

follows:

(8) "Invalid exercise of delegated legislative

authority" means action which 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 or more of the following

apply:

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(7);

(c) The rule enlarges, modifies, or

contravenes the specific provisions of the law

implemented, citation to which is required by

s. 120.54(7);

(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.

In effect, appellants argue that the "agency has exceeded its grant of

rulemaking authority," 120.52(8)(b), Fla. Stat. (1993), that the rule "enlarges,

modifies, or contravenes the specific provisions of law implemented,"

120.52(8)(c), Fla. Stat. (1993), and that the rule "vests unbridled discretion,"

120.52(8)(d), Fla. Stat. (1993), in university presidents.

The legislature may authorize administrative agencies to interpret,

Department of Professional Regulation Bd. of Medical Examiners v. Durrani, 455

So.2d 515, 517 (Fla. 1st DCA 1984), but never to alter statutes. State, Dep't

of Business Regulation, Div. of Alcoholic Beverages and Tobacco v. Salvation

Ltd., Inc., 452 So.2d 65 (Fla. 1st DCA 1984). The precise rule of decision for

determining whether an administrative rule crosses the line dividing statutory

implementation from statutory abrogation is not always clear. Compare State,

Dep't of Health and Rehabilitative Servs. v. McTigue, 387 So.2d 454 (Fla. 1st

DCA 1980) (rule requirement that license applicant furnish names and addresses

so agency could verify experience stricken as ultra vires) with Seminole Tribe

of Florida v. State Dep't of Business Regulation Div. of Alcoholic Beverages and

Tobacco, 496 So.2d 193 (Fla. 1st DCA 1986) (rule upheld as "consistent with

legislative purpose," at 194, which, inter alia, "clarifie[d]. . .definition of

Seminole Indians" and added "record keeping and documentation requirements." At

193). See generally Florida League of Cities, Inc. v. Department of Envtl.

Regulation, 603 So.2d 1363 (Fla. 1st DCA 1992); Durrani.

While executive branch agencies cannot usurp legislative prerogatives,

"rulemaking authority may be implied to the extent necessary to properly

implement a statute governing the agency's statutory duties and

responsibilities." Fairfield Communities v. Florida Land and Water Adjudicatory

Comm'n, 522 So.2d 1012 (Fla. 1st DCA 1988); "An administrative agency must have

some discretion when a regulatory statute is in need of construction in its

implementation." General Tel. Co. of Florida v. Marks, 500 So.2d 142, 144 (Fla.

1986). An administrative rule by which an agency exercises such discretion, or

which fails to extinguish the discretion a statute confers, is not invalid on

that account.

Statute Authorizes Exercise of Discretion

Appellants do not attack chapter 240, Florida Statutes (1993) on separation

of power grounds. See generally B.H. v. State, 645 So.2d 987 (Fla. 1994);

Chiles v. Children A, B C D E, and F, 589 So.2d 260 (Fla. 1991). Section

240.209(3)(q), Florida Statutes (1993), confers on the Board of Regents broad

authority to "[a]dopt such rules as are necessary to carry out its duties and

responsibilities."

The Board of Regents is primarily responsible

for adopting systemwide rules and policies;

planning for the future needs of the State

University System; planning the programmatic,

financial, and physical development of the

system; reviewing and evaluating the

instructional, research, and service programs

at the universities and monitoring the

fiscal performance of the universities.

Section 240.209(1), Florida Statutes. While the Board of Regents had primary

responsibility for the system, the Board's responsibilities for universities'

programs and fiscal performance is limited to reviewing, evaluating and

monitoring. Section 240.105, Florida Statutes, provides:

(1) The Legislature finds it in the public

interest to provide a system of higher

education which is of the highest possible

quality; which enables students of, all ages,

backgrounds, and levels of income to

participate in the search for knowledge and

individual development; which stresses

undergraduate teaching as its main priority;

which offers selected professional, graduate,

and research programs with emphasis on state

and national needs; which fosters diversity of

educational opportunity; which promotes

service to the public, which makes effective

and efficient use of human and physical

resources; which functions cooperatively with

other educational institutions and systems;

and which promotes internal coordination and

the wisest possible use of resources.

(2) The mission of the state system of

postsecondary education is to develop human

resources, to discover and disseminate

knowledge, to extend knowledge and its

application beyond the boundaries of its

campuses, and to serve and stimulate society

by developing in students heightened

intellectual, cultural, and humane

sensitivities; scientific, professional, and

technological expertise; and a sense of

purpose. Inherent in this broad mission are

methods of instruction, research, extended

training, and public service designed to

educate people and improve the human condition.

Basic to every purpose of the system is the

search for truth.

It is hard to imagine a more sweeping mandate, and impossible to accept the

suggestion that the challenged rule does not advance the statutory purpose to

establish "research programs with emphasis on state and national needs; which

fosters diversity of educational opportunity. . .[and] promotes service to the

public." 240.105(2), Florida Statutes.

The parties stipulated that a "number of students. . .participate actively

in Florida PIRG internship programs, all of whom receive academic credit for

their work." Even outside the Department of Education, executive branch

"agencies are given wide discretion in the exercise of their lawful rulemaking

authority." Austin v. Department of Health and Rehabilitative Servs., 495 So.2d

777 (Fla. 1st DCA 1986). Academic freedom requires no less "wide discretion" in

the Board of Regents and in state university presidents, which courts and

hearing officers should be at pains to preserve. Broad discretion is both a

necessity and a long-established tradition in matters involving a university's

curriculum.

It is not the case, as appellants seem to contend, that every fee

universities collect pursuant to rule must be specifically denominated by

statute. See Rule 6C-7.003(29) (Off-Campus Educational Activities Fees); Rule

6C-7.003(11) (Library Fines); Rule 6C-7.003(13) (Late Equipment Fees); and Rule

6C-7.003(16) (Standardized Test Fees). "[T]he validity of. . .[a challenged]

rule must be upheld if it is reasonably related to the purpose of the

legislation interpreted and is not arbitrary and capricious." Durrani, 455 So.2d

at 517.

Appellants complain specifically that implementation of the challenged

provision is left to the discretion of individual university presidents. In

their brief, they argue:

[T]he rule allows absolute discretion on the

part [of] university presidents. . .even after

a majority of students sign a petition

requesting its collection. Therefore, no

university president has the duty to collect

this donation. . .[T]he fee is an option not a

duty or responsibility.

If there is a statutory duty or responsibility

on the part of the Board. . .Rule 6C-7.003(9),

Florida Administrative Code, contradicts this

legal obligation by not mandating the

collection. . .

But university presidents and university faculty have historically exercised

significant autonomy in structuring the educational environments at their

respective institutions.

Rule-Engendered Standardless Discretion

To the extent Florida Administrative Code Rule 6C-7.003(9) authorizes or

recognizes this prerogative of individual institutions, it is consistent not

only with historical practice but also with the statutory scheme. The governing

statutes, not the challenged rule, confer this discretion. In one respect,

however, the challenged rule itself confers unguided discretion on university

presidents that they did not have before the rule was promulgated, viz., the

"sole discretion" to decide between a "positive checkoff" and a "negative

checkoff." While student contributions are no novelty as a source of funds for

student activities, the rule calls certain mechanics into being. Until the rule

was adopted, university presidents had no need to choose between "positive" and

"negative checkoffs," which Florida Administrative Code Rule 6C-7.003(9) now

requires, under circumstances specified in the rule.

An administrative rule which creates discretion not articulated in the

statute it implements must specify the basis on which the discretion is to be

exercised. Otherwise the "lack of. . .standards. . .for the exercise of

discretion vested under the. . .rule renders it incapable of understanding. .

.and incapable of application in a manner susceptible of review." Staten v.

Couch, 507 So.2d 702 (Fla. 1st DCA 1987). Because a reviewing "court shall not

substitute its judgment for that of the agency on an issue of discretion,"

120.68(12), Fla. Stat. (1993), an agency rule that confers standardless

discretion insulates agency action from judicial scrutiny. By statute, a rule

or part of a rule which "fails to establish adequate standards for agency

decisions, or vests unbridled discretion in the agency," 120.52(8)(d), Fla.

Stat. (1993), is invalid.

The authority to make available to students an opportunity to perform

public interest research or to participate in public affairs is part and parcel

of university presidents' statutory discretion to establish instructional

programs and academic curricula on their campuses. Florida Administrative Code

Rule 6C-7.003(9) does not alter the scope of this traditional discretion. But

the rule "fails to establish adequate standards for agency decisions,"

120.52(8)(e), Fla. Stat. (1993), for or against employing the "negative

checkoff," i.e., collecting "donations" from registering students unless they

expressly decline to contribute. In this one respect, Florida Administrative

Code Rule 6C-7.003(9) itself "vests unbridled discretion in the agency."

120.52(8)(e), Fla. Stat. (1993).

Florida Administrative Code Rule 6C-7.003(9) is devoid of any standards

purporting to guide this exercise of discretion. No such standards are implicit

in the statutes implemented. Even students who have signed a petition will not

necessarily be alerted that a "negative checkoff" choice must be made when they

register for classes. Florida Administrative Code Rule 6C-7.003(9) supplies no

principled basis on which a university president can decide whether a

registering student's failure to indicate otherwise should be taken as a

decision to contribute to the funding of a public interest research

organization. No statute creates the "negative checkoff" device or requires

that it be sprung on entering freshmen or other unwary registrants.

Because of constitutional concerns which we discuss below, this unlawful

grant of discretion is doubly troublesome. We believe appellants are entitled

to invalidation of Florida Administrative Code Rule 6C-7.003(9)(a)(2). Deletion

of the negative checkoff option both eliminates standardless discretion and

cures any claimed unconstitutionality in the rule's implementation of governing

statutes. Unless the negative checkoff has some misleading or coercive effect,

moreover, revenues will be undiminished by a positive checkoff mechanism.

Constitutional Grounds Urged

While the hearing officer did not address appellants' claims that the

challenged rule is unconstitutional, see Department of Envtl. Regulation v. Leon

County, 344 So.2d 297 (Fla. 1st DCA 1977), their motion as petitioners below to

amend the rule challenge to include two constitutional arguments was granted

without opposition, and fact finding proceeded accordingly. See Diaz v. Florida

Dep't of Corrections, 511 So.2d 669 (Fla. 1st DCA 1987); Rice v. Department of

Health and Rehabilitative Servs., 386 So.2d 844 (Fla. 1st DCA 1980).

On appeal, appellants urge the invalidity of the rule not only on the

statutory basis urged below, but also on three separate constitutional grounds.

Where the record is adequate, nothing precludes relying on a constitutional

provision, as grounds for invalidating a rule, for the first time on appeal from

a hearing officer's final order in an administrative rule challenge. Diaz. Cf.

Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal

Improvement Trust Fund, 427 So.2d 153 (Fla. 1982) (facial unconstitutionality of

statute may be raised initially on appeal from administrative order); Rice.

Constitutional Arguments

Appellants argue that Florida Administrative Code Rule 6C-7.003 (9)

violates two separate provisions of article VII of the Florida Constitution,

sections 1(c) and 10. Section 1(c) provides: "No money shall be drawn from the

treasury except in pursuance of appropriation made by law." Section 10

provides: "Neither the state nor any. . .agency. . .shall become a joint owner

with, or stockholder of, or give, lend or use its taxing power or credit to aid

any corporation, association, partnership or person."

In their initial brief, appellants equate the voluntary fees collected

under the challenged rule with a compulsory tax. They contend that they are

college students from whom "the fee assessed under this rule is collected under

color of state law at the Florida State University." This contention lacks any

force in light of our decision today that so much of the rule as purports to

authorize use of a negative checkoff is invalid. Students' fees or donations

must be the product of informed, free choice. 1/ The rule does not authorize

collection of any tax.

Appellants also contend that the rule can be read to authorize a state

subsidy of public interest research organizations' fund raising efforts. But

see Hasper v. Department of Admin., 459 So.2d 398 (Fla. 1st DCA 1984) (improper

application of lawful rule, even when proven, does not invalidate rule). They

argue that

[b]ecause. . .[a university] cannot charge

more than ten cents on the dollar for the fees

it collects by virtue of this rule, it must

pass on the cost incurred through increased

tuition and fees as well as drawing on the

state treasury.

The hypothetical appellants posit contemplates levels of collection so low that

ten percent will be too little to defray the costs of collection. But the rule

does not authorize collecting any donation or fee unless "at least a majority of

the students sign a written petition requesting that a fee be collected." While

such a petition does not guarantee any minimum level of contributions

(especially as time passes), it reflects some interest on the part of a large

number of students.

In any event, the record provides no support for appellants' professed

fears that their hypothetical subsidy will materialize. Once a university

president authorizes collection of the fees, the principal expense the

university incurs may well be a few minutes of a salaried computer programmer's

time. The rule also provides that "organizations must maintain a level of

collection as set by the university." Fla. Admin. Code R. 6C-7.003(9)(b).

Petitioners did not prove circumstances under which a state university would

become a joint owner with, or a stockholder of, or give, lend or use its taxing

power or credit to aid any corporation, association, partnership or person, by

virtue of the challenged rule. The rule authorizes no person or entity to use

the university's credit.

Finally, appellants argue that the challenged rule provision authorizes

"compulsory subsidization of ideological activity," in violation of the First

Amendment. They rely on Chicago Teachers Union, Local No. 1, ATT, AFL-CIO v.

Hudson, 475 U.S. 292, 106 S. Ct. 1066, 89 L. Ed. 2d 232 (1986) and Abood v.

Detroit Bd. of Educ., 431 U.S 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977).

Again appellants' premise is flawed. Absent authorization for a negative

checkoff, Florida Administrative Code Rule 6C-7.003(9) cannot even arguably work

any compulsion. Students who choose to contribute are no more compelled to

subsidize activities of which they disapprove than are state employees who elect

to contribute to the United Fund by payroll deduction. Students who choose to

take advantage of the educational opportunities public interest research

organizations afford are under no greater compulsion than students who elect to

enrol in philosophy, religion or political science courses.

Conclusion

In sum, we conclude that Florida Administrative Code Rule 6C-7.003(9)

lawfully implements pertinent statutory provisions in authorizing individual

universities, through the persons of their presidents, to facilitate

establishment of research programs concerning state and national needs, foster

educational diversity and promote public service by giving students an

opportunity to support chartered public interest research organizations

financially.

In leaving this decision to university presidents, the questioned rule

recognizes discretion the governing statutes have conferred. To the extent the

rule requires a choice that the statutes did not require, however, the rule

itself confers discretion. This runs afoul of section 120.52(8), Florida

Statutes (1993), because no standards guide the discretion. We eliminate this

unlawful grant of unfettered discretion by invalidating so much of the rule as

purports to authorize negative checkoffs, thereby obviating any need to reach

appellants' constitutional arguments.

Accordingly, we affirm except as to Florida Administrative Code Rule 6C-

7.003(9)(a)(2), as to which we reverse and remand, with directions that this

subpart of the rule be invalidated.

BOOTH and ALLEN, JJ., CONCUR.

ENDNOTE

1/ Because no issue has been raised regarding the sufficiency of the

information supplied to students to ensure that their donations represent an

informed choice, we do not address the question.

=================================================================

CORRECTED COPY OF THE DISTRICT COURT OPINION

AS TO ADDRESS OF CHARLES DANIEL SIKES ONLY

=================================================================

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

MICHAEL CORTES, TALIVER HEATH, NOT FINAL UNTIL TIME EXPIRES TO

ROBERT KLEPPER, and FILE MOTION FOR REHEARING AND

MOHIT RAMANI, DISPOSITION THEREOF IF FILED

Petitioner, CASE NO. 93-1886

DOAH CASE NO. 93-1178RX

vs.

STATE OF FLORIDA, BOARD OF

REGENTS and FLORIDA PUBLIC

INTEREST RESEARCH GROUP, INC.,

Respondent.

______________________________/

Opinion filed April 25, 1995.

An appeal from an order of Hearing Officer Don W. Davis of the Division of

Administrative Hearings.

Charles Daniel Sikes P.A., Starke, Florida, for Appellants.

Robert A. Butterworth, Attorney General; Claire D. Dryfuss, Assistant Attorney

General, Tallahassee, for Appellee Board of Regents.

Carlos Alvarez of Hopping Boyd Green & Sams, Tallahassee, for Appellee Florida

Public Interest Research Group, Inc.

BENTON, J.

Appellants initiated proceedings under section 120.56, Florida Statutes

(1993) by filing a petition to determine the invalidity of a rule. They

challenge Florida Administrative Code Rule 6C-7.003(9), which leaves to

university presidents the

MANDATE

from

DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT

To the Honorable, the Judges of the Don W. Davis, Hearing Officer, Division of

Administrative Hearings

WHEREAS, in that certain cause filed in this court styled:

STATE OF FLORIDA,

BOARD OF REGENTS

vs. Case No. 93-1886

Your Case No. 93-1178RX

FLORIDA PUBLIC INTEREST

RESEARCH GROUP, INC.

The attached opinion was rendered on April 25, 1995.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said

opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable E. Earle Zehmer

Chief Judge of the District Court of Appeal of Florida, First District and

the Seal of said court at Tallahassee, the Capitol, on this 29th day of June,

1995.

___________________________________________

(DCA SEAL) Jon S. Wheeler

Clerk, District Court of Appeal of Florida,

First District

MANDATE

from

DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT

To the Honorable, the Judges of the Don W. Davis, Hearing Officer, Division of

Administrative Hearings

WHEREAS, in that certain cause filed in this court styled:

MICHAEL CORTES, TALIVER HEALTH

ROBERT KLEPPER and MOHIT RAMANI

vs. Case No. 93-1886

Your Case No. 93-1178RX

STATE OF FLORIDA,

BOARD OF REGENTS

and

FLORIDA PUBLIC INTEREST

RESEARCH GROUP, INC.

The attached opinion was rendered on April 25, 1995.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said

opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable E. Earle Zehmer

Chief Judge of the District Court of Appeal of Florida, First District and

the Seal of said court at Tallahassee, the Capitol, on this 7th day of July,

1995.

___________________________________________

(DCA SEAL) Jon S. Wheeler

Clerk, District Court of Appeal of Florida,

First District

=================================================================

DISTRICT COURT ORDER

=================================================================

DISTRICT COURT OF APPEAL, FIRST DISTRICT

Tallahassee, Florida 32399

Telephone No. [phone]

July 6, 1995

Case No. 93-01886

L.T. CASE NO. 93-1178RX

Michael Cortes, Taliver vs. State, Board of Regents

Health, et al. and F.P.I.R.G., Inc.

____________________________________________________________

Appellents(s), Appellee(s).

BY ORDER OF THE COURT:

The mandate of this Court issued June 29, 1995, is hereby set aside and held

for naught.

I HEREBY CERTIFY that the foregoing is (a true copy) of the original court

order.

_____________________________

JON S. WHEELER, CLERK (DISTRICT COURT SEAL)

BY:__________________________

Judy Tehan

Deputy Clerk

Copies:

Charles Daniel Sikes Gregg A. Gleason

Carroll Webb Claire D. Dryfus

Carlos Alvalrez David Simon

Deanna Hartford

=================================================================

FINAL ORDER UPON REMAND

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL CORTES, TALIVER HEATH )

ROBERT KLEPPER and MOHIT RAMANI, )

)

Petitioners, )

)

vs. ) CASE NO. 93-1178RX

)

STATE OF FLORIDA, BOARD OF )

REGENTS, )

)

Respondents. )

and )

)

FLORIDA PUBLIC INTEREST )

RESEARCH GROUP, INC. )

)

Intervenor. )

_________________________________)

FINAL ORDER UPON REMAND

Pursuant to MANDATE issued June 29, 1995, in Case No. 93-1886 of the

District Court Of Appeal Of Florida, First District, and opinion of the Court

issued April 25, 1995, it is ordered that the final order of the undersigned

issued in the above-styled cause on May 21, 1993, dismissing the Petition to

challenged Rule 6C-7.003(9), Florida Administrative Code, en toto is hereby

amended to strike specifically the language contained in subpart 6C-

7.003(9)(a)2., of the rule.

Accordingly, consistent with directions of the appellate court, the rule

will now read as follows:

* (9) Each university president is empowered

annually to authorize the collection of an

additional fee for the financing of chartered

non-profit public interest research organi-

zations, provided that at least a majority

of the students sign a written petition

requesting that such a fee be collected.

(a) An additional fee shall be structured

only in the form either of a positive [[or

negative]] checkoff system in the sole

discretion of the president as follows:

1. A positive checkoff means the student

must designate by initialling or marking a box

on the registration or fee card that the student

wishes to fund the public interest research

group. If a student does not so designate,

no fee will be assessed.

[[2. A negative checkoff means the student

must designate by initialling or marking a box

on the registration or fee card that the student

does not wish to fund the public interest

research group. If a student does not so

designate, the fee will be assessed.]]

(b) Any such organizations must maintain a

level of collection as set by the university.

The university may recover its costs incurred

in collecting the fee, providing such costs not

exceed 10 percent of the fees collected. The

university has no responsibility for the

actions or non-actions of such organizations

for which it collects fees. Notwithstanding

the above, any funding system presently being

used by any university which was formulated

in accordance with this section prior to this

amendment shall remain valid but shall be

changed to comply with this section, as amended,

prior to the Fall semester of 1983.

* Note: In the above section, struck text on the original

document on file with the Division is within the [[ ]].

With exception of the "negative check off" provisions contained in subpart

6C-7.003(9)(a)2., of the rule and reference to such check-off in the preceding

paragraph of the rule as illustrated above, the previous finding that

Petitioners have failed to carry their burden of proving the challenged rule to

be an invalid exercise of delegated legislative authority is reaffirmed and all

other matters addressed by the Petition remain dismissed.

DONE and ORDERED this 12th day of July, 1995, in Tallahassee, Leon County,

Florida.

___________________________________

DON W. DAVIS, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of July, 1995

COPIES FURNISHED:

Charles Daniel Sikes

1105 Hays Street

Tallahassee, FL 32301

Greg A. Gleason

Suite 1522

Florida Education Center

Tallahassee, FL 32399-1950

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, FL 32399-1300

Claire Dryfuss

Assistant Attorney General

Department of Legal Affairs

PL-01, The Capitol

Tallahassee, FL 32399-1050

Carlos Alverez

P. O. Box 6526

Tallahassee, FL 323314-6526

David S. Simon

FPIRG, Inc.

420 East Call Street

Tallahassee, FL 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND 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 APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE

ORDER TO BE REVIEWED.