Sterman v. Florida State University Bd. of Regents, AH-240

• Decision Date: 26 May 1982
• Docket Number: No. AH-240,AH-240
• Citation: 414 So.2d 1102
• Parties: 4 Ed. Law Rep. 1351 Jeffrey R. STERMAN, Appellant, v. The FLORIDA STATE UNIVERSITY BOARD OF REGENTS, State of Florida, Appellees.
• Court: Florida District Court of Appeals

Page 1102

414 So.2d 1102

4 Ed. Law Rep. 1351

Jeffrey R. STERMAN, Appellant, v. The FLORIDA STATE UNIVERSITY BOARD OF REGENTS, State of Florida, Appellees.

No. AH-240.

District Court of Appeal of Florida,

First District.

May 26, 1982.

John D. Carlson of Woods, Johnston & Carlson, Tallahassee, for appellant.

Charles S. Ruberg, Associate University Atty., Florida State University, Tallahassee, for appellees.

WENTWORTH, Judge.

This case involves an appeal from an administrative order of Florida State University denying appellant's petition for an administrative hearing. In dismissing the petition the university found first that it was not timely, and second that it did not sufficiently allege the existence of a substantial interest. Appellant contends that the first conclusion was erroneous as a matter of law, and that the second was based on improper consideration of the merits of his allegations without a hearing. We reverse.

Appellant filed his petition on September 19, 1981. Since it was dismissed without a hearing, the facts as they are alleged in the petition are presumed to be true. Those facts are stated as follows:

In 1977, appellant entered a doctoral program offered at Florida State University in science education. In February, 1979, his prospectus was approved. From that time until November, 1980, he worked under the supervision of his major professor. In November, 1980, appellant defended his dissertation before his major professor and other members of his doctoral committee. Sometime thereafter, ¹ he was advised by his major professor that the doctoral committee would not grant him a Ph.D. but would allow him the following options:

A. Treat his study as a pilot.

B. Take an Ed.D. degree (Doctor of Education).

C. Take a Master's Specialist degree.

Appellant accepted the second option. He secured the signatures on the cover page of his dissertation and secured the initial abstract as required by university rules and regulations. Subsequently appellant's major professor signed the "Final Term Degree Clearance Form," but the department chairman refused to allow appellant to take the Ed.D. degree and revoked the options set out above.

The order denying the petition correctly noted that the procedures were governed by § 120.57, Florida Statutes, § 120.54(10), Florida Statutes, and Fla.Admin.Code Rule 28-5. Rule 28-5.111 permits an agency to deny a petition for administrative hearing if it is not filed within 21 days of the date on which the petitioner received written notice of the agency's decision. The notice must state the time limit for requesting a hearing and refer to the agency's procedural rules.

In finding that the petition filed in September, 1981, was untimely, the university relied on certain of its records which might indicate that appellant knew as early as December, 1980, that he would not be awarded the Ph.D. degree. However, whether he was informed that he would not be awarded the Ed.D. degree under any circumstances is questionable. ² In any event, actual notice of such agency action which did not inform petitioner of his right to request a hearing and the time limits for doing so would be inadequate to trigger the commencement of the administrative process. See Higgins v. Florida Keys Aqueduct Authority, 403 So.2d 1042 (Fla. 3d DCA 1981). The notices which the university relied on, in finding that the petition was untimely, did not provide appellant with a clear point of entry into the administrative process as the university was required to do. Capaletti v. State Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978). The failure to conform with the procedural requirements of Fla.Admin.Code Rule 28-5.111 was a material error, which resulted in...