Cortes v. State, Bd. of Regents, 93-1886
| Decision Date | 25 April 1995 |
| Docket Number | No. 93-1886,93-1886 |
| Citation | 655 So.2d 132 |
| Parties | 100 Ed. Law Rep. 1201, 20 Fla. L. Weekly D1034 Michael CORTES, Taliver Heath, Robert Klepper, and Mohit Ramani, Appellants, v. STATE of Florida, BOARD OF REGENTS and Florida Public Interest Research Group, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Charles Daniel Sikes, P.A., Starke, for appellants.
Robert A. Butterworth, Atty. Gen., Claire D. Dryfuss, Asst. Atty. Gen., Tallahassee, for appellee Bd. of Regents.
Carlos Alvarez of Hopping Boyd Green & Sams, Tallahassee, for appellee Florida Public Interest Research Group, Inc.
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."
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.
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 DCA 1994), review denied, No. 84,875, --- So.2d ---- (Fla. April 12, 1995). 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," Sec. 120.52(8)(b), Fla.Stat. (1993), that the rule "enlarges, modifies, or contravenes the specific provisions of law implemented," Sec. 120.52(8)(c), Fla.Stat. (1993), and that the rule "vests unbridled discretion," Sec. 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) () 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) ...
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