invalidity rule in Florida

2002Section 120.56(1)(a), Florida Statutes (1999), states that only those who are "substantially affected *4 by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority." To demonstrate that one is or will be "substantially affected by a rule or a proposed rule," one must establish both that application of the rule will result in "a real and sufficiently immediate injury in fact" and that "the alleged interest is arguably within the zone of interest to be protected or regul

2002Section 120.56(1)(a), Florida Statutes (1999), provides that "[a]ny person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority." To demonstrate that one is or will be "substantially affected by a rule or a proposed rule," one must establish both that application of the rule will result in "a real and sufficiently immediate injury in fact" and that "the alleged interest is arguably within the zone of interest to be protected or regulated."

1989The state alternatively contends that no defense waiver was required in the first instance, because — by virtue of its foregoing the death penalty and the practical, if not legal impossibility of its being imposed in this case, Brown v. State, 521 So.2d 110 (Fla. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 270 , 102 L.Ed.2d 258 (1988) — the case was no longer a "capital" one which required a twelve-person jury at all.

1989The state alternatively contends that no defense waiver was required in the first instance, because — by virtue of its foregoing the death penalty and the practical, if not legal impossibility of its being imposed in this case, Brown v. State, 521 So.2d 110 (Fla.1988), cert. denied, — U.S. —, 109 S.Ct. 270 , 102 L.Ed.2d 258 (1988) —the case was no longer a “capital” one which required a twelve-person jury at all.

1989The state alternatively contends that no defense waiver was required in the first instance, because — by virtue of its foregoing the death penalty and the practical, if not legal impossibility of its being imposed in this case, Brown v. State, 521 So.2d 110 (Fla. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 270 , 102 L.Ed.2d 258 (1988) — the case was no longer a "capital" one which required a twelve-person jury at all.

1989The state alternatively contends that no defense waiver was required in the first instance, because — by virtue of its foregoing the death penalty and the practical, if not legal impossibility of its being imposed in this case, Brown v. State, 521 So.2d 110 (Fla.1988), cert. denied, — U.S. —, 109 S.Ct. 270 , 102 L.Ed.2d 258 (1988) —the case was no longer a “capital” one which required a twelve-person jury at all.

1989The state alternatively contends that no defense waiver was required in the first instance, because — by virtue of its foregoing the death penalty and the practical, if not legal impossibility of its being imposed in this case, Brown v. State, 521 So.2d 110 (Fla. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 270 , 102 L.Ed.2d 258 (1988) — the case was no longer a "capital" one which required a twelve-person jury at all.

1989The state alternatively contends that no defense waiver was required in the first instance, because — by virtue of its foregoing the death penalty and the practical, if not legal impossibility of its being imposed in this case, Brown v. State, 521 So.2d 110 (Fla.1988), cert. denied, — U.S. —, 109 S.Ct. 270 , 102 L.Ed.2d 258 (1988) —the case was no longer a “capital” one which required a twelve-person jury at all.

1989The recent decision of the supreme court in Brown v. State, 538 So.2d 833 (Fla. 1989), which deals with the requirements necessary to demonstrate a defendant's waiver of the right to the presence of the trial judge — a point conceptually indistinguishable from this one — conclusively establishes the invalidity of a waiver undertaken only by defense counsel as in this case.

1989The recent decision of the supreme court in Brown v. State, 538 So.2d 833 (Fla.1989), which deals with the requirements necessary to demonstrate a defendant’s waiver of the right to the presence of the trial judge — a point conceptually indistinguishable from this one — conclusively establishes the invalidity of a waiver undertaken only by defense counsel as in this case.

1983His claim of ineffective assistance of counsel is not independent of his primary claim, but simply Nova’s explanation why relief on the primary claim was not sought in the prior trial and appellate proceedings. 2 Since we decide, infra, that Nova’s primary contention raises a fundamental error which, having never been ruled upon, may be considered under a 3.850 motion even though not raised in a direct appeal, Nova’s fall-back contentions concerning the ineffectiveness of his counsel need not be reached. 3 III As we have stated, a fundamental error may be raised for the first time in a Rule 3.

1983His claim of ineffective assistance of counsel is not independent of his primary claim, but simply Nova's explanation why relief on the primary claim was not sought in the prior trial and appellate proceedings. [2] Since we decide, infra, that Nova's primary contention raises a fundamental error which, having never been ruled upon, may be considered under a 3.850 motion even though not raised in a direct appeal, Nova's fall-back contentions concerning the ineffectiveness of his counsel need not be reached. [3] *261 III As we have stated, a fundamental error may be raised for the first time in

1983His claim of ineffective assistance of counsel is not independent of his primary claim, but simply Nova’s explanation why relief on the primary claim was not sought in the prior trial and appellate proceedings. 2 Since we decide, infra, that Nova’s primary contention raises a fundamental error which, having never been ruled upon, may be considered under a 3.850 motion even though not raised in a direct appeal, Nova’s fall-back contentions concerning the ineffectiveness of his counsel need not be reached. 3 III As we have stated, a fundamental error may be raised for the first time in a Rule 3.

1983His claim of ineffective assistance of counsel is not independent of his primary claim, but simply Nova's explanation why relief on the primary claim was not sought in the prior trial and appellate proceedings. [2] Since we decide, infra, that Nova's primary contention raises a fundamental error which, having never been ruled upon, may be considered under a 3.850 motion even though not raised in a direct appeal, Nova's fall-back contentions concerning the ineffectiveness of his counsel need not be reached. [3] *261 III As we have stated, a fundamental error may be raised for the first time in

1983His claim of ineffective assistance of counsel is not independent of his primary claim, but simply Nova’s explanation why relief on the primary claim was not sought in the prior trial and appellate proceedings. 2 Since we decide, infra, that Nova’s primary contention raises a fundamental error which, having never been ruled upon, may be considered under a 3.850 motion even though not raised in a direct appeal, Nova’s fall-back contentions concerning the ineffectiveness of his counsel need not be reached. 3 III As we have stated, a fundamental error may be raised for the first time in a Rule 3.

1983His claim of ineffective assistance of counsel is not independent of his primary claim, but simply Nova's explanation why relief on the primary claim was not sought in the prior trial and appellate proceedings. [2] Since we decide, infra, that Nova's primary contention raises a fundamental error which, having never been ruled upon, may be considered under a 3.850 motion even though not raised in a direct appeal, Nova's fall-back contentions concerning the ineffectiveness of his counsel need not be reached. [3] *261 III As we have stated, a fundamental error may be raised for the first time in

2003The administrative law judge (ALJ), held a hearing on the motion to dismiss and denied the motion, finding that the petitioners had presented sufficient evidence to establish NAACP's "associational standing ... to represent [its] members as persons substantially affected by the proposed amendments," and that the Garvins were "substantially affected by the proposed amendments to [r]ules 6C-6.001 and 6C-6.002." NAACP, 822 So.2d at 3 . [2] The ALJ found that "significant numbers" of middle school, high school, and college students stand to be substantially affected by the rule amendments.

1989This section 120.56 rule challenge proceeding involves a determination of the invalidity of rule 21Q-10.001, Florida Administrative Code, and is the companion case to Florida Society of Ophthalmology v. State of Florida Board of Optometry, 532 So.2d 1279 (Fla. 1st DCA 1988) (hereafter cited as Florida Society of Ophthalmology ).

1982Levinson, Florida Administrative Practice Manual at 79 (1979). [3] E.g., Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 , 96 S.Ct. 1917 , 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975); Meek v. Pittinger, 421 U.S. 349 , 95 S.Ct. 1753 , 44 L.Ed.2d 217 (1975); Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972); National Motor Freight Traffic Ass'n. v. United States, 372 U.S. 246 , 83 S.Ct. 688 , 9 L.Ed.2d 709 (1963). [4] U.S.Const. art.

1982Levinson, Florida Administrative Practice Manual at 79 (1979). [3] E.g., Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 , 96 S.Ct. 1917 , 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975); Meek v. Pittinger, 421 U.S. 349 , 95 S.Ct. 1753 , 44 L.Ed.2d 217 (1975); Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972); National Motor Freight Traffic Ass'n. v. United States, 372 U.S. 246 , 83 S.Ct. 688 , 9 L.Ed.2d 709 (1963). [4] U.S.Const. art.

1982Levinson, Florida Administrative Practice Manual at 79 (1979). [3] E.g., Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 , 96 S.Ct. 1917 , 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975); Meek v. Pittinger, 421 U.S. 349 , 95 S.Ct. 1753 , 44 L.Ed.2d 217 (1975); Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972); National Motor Freight Traffic Ass'n. v. United States, 372 U.S. 246 , 83 S.Ct. 688 , 9 L.Ed.2d 709 (1963). [4] U.S.Const. art.

1982Levinson, Florida Administrative Practice Manual at 79 (1979). [3] E.g., Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 , 96 S.Ct. 1917 , 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975); Meek v. Pittinger, 421 U.S. 349 , 95 S.Ct. 1753 , 44 L.Ed.2d 217 (1975); Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972); National Motor Freight Traffic Ass'n. v. United States, 372 U.S. 246 , 83 S.Ct. 688 , 9 L.Ed.2d 709 (1963). [4] U.S.Const. art.

1982Levinson, Florida Administrative Practice Manual at 79 (1979). [3] E.g., Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 , 96 S.Ct. 1917 , 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975); Meek v. Pittinger, 421 U.S. 349 , 95 S.Ct. 1753 , 44 L.Ed.2d 217 (1975); Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972); National Motor Freight Traffic Ass'n. v. United States, 372 U.S. 246 , 83 S.Ct. 688 , 9 L.Ed.2d 709 (1963). [4] U.S.Const. art.

1982Levinson, Florida Administrative Practice Manual at 79 (1979). [3] E.g., Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 , 96 S.Ct. 1917 , 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975); Meek v. Pittinger, 421 U.S. 349 , 95 S.Ct. 1753 , 44 L.Ed.2d 217 (1975); Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972); National Motor Freight Traffic Ass'n. v. United States, 372 U.S. 246 , 83 S.Ct. 688 , 9 L.Ed.2d 709 (1963). [4] U.S.Const. art.

1982Levinson, Florida Administrative Practice Manual at 79 (1979). [3] E.g., Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 , 96 S.Ct. 1917 , 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975); Meek v. Pittinger, 421 U.S. 349 , 95 S.Ct. 1753 , 44 L.Ed.2d 217 (1975); Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972); National Motor Freight Traffic Ass'n. v. United States, 372 U.S. 246 , 83 S.Ct. 688 , 9 L.Ed.2d 709 (1963). [4] U.S.Const. art.

1982Levinson, Florida Administrative Practice Manual at 79 (1979). [3] E.g., Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 , 96 S.Ct. 1917 , 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975); Meek v. Pittinger, 421 U.S. 349 , 95 S.Ct. 1753 , 44 L.Ed.2d 217 (1975); Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972); National Motor Freight Traffic Ass'n. v. United States, 372 U.S. 246 , 83 S.Ct. 688 , 9 L.Ed.2d 709 (1963). [4] U.S.Const. art.

1982Levinson, Florida Administrative Practice Manual at 79 (1979). [3] E.g., Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 , 96 S.Ct. 1917 , 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975); Meek v. Pittinger, 421 U.S. 349 , 95 S.Ct. 1753 , 44 L.Ed.2d 217 (1975); Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972); National Motor Freight Traffic Ass'n. v. United States, 372 U.S. 246 , 83 S.Ct. 688 , 9 L.Ed.2d 709 (1963). [4] U.S.Const. art.

1982Levinson, Florida Administrative Practice Manual at 79 (1979). [3] E.g., Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 , 96 S.Ct. 1917 , 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975); Meek v. Pittinger, 421 U.S. 349 , 95 S.Ct. 1753 , 44 L.Ed.2d 217 (1975); Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972); National Motor Freight Traffic Ass'n. v. United States, 372 U.S. 246 , 83 S.Ct. 688 , 9 L.Ed.2d 709 (1963). [4] U.S.Const. art.

1982However, Bowling and Douglas were decided before Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), holding that proceedings for the establishment of a presumptive parole release date were governed by Chapter 120, Administrative Procedures Act, notwithstanding denial of inmate access to the Section 120.57 hearing process.

1981To the extent that the courts in Brevard Community College v. Florida Public Employees Relations Commission, 376 So.2d 16 (Fla. 5th DCA 1979), and Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1978), relied on Section 120.56(1) when they determined that a failure to attack the rule at the agency level constituted a failure to preserve that issue for appeal, we believe that reliance was misplaced.

1981To the extent that the courts in Brevard Community College v. Florida Public Employees Relations Commission, 376 So.2d 16 (Fla. 5th DCA 1979), and Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1978), relied on Section 120.56(1) when they determined that a failure to attack the rule at the agency level constituted a failure to preserve that issue for appeal, we believe that reliance was misplaced.

1980Our ruling is governed by our opinion in Fla. Dept. of Ed. v. Fla. Ed. Ass'n/United, etc., 378 So.2d 893 (Fla. 1st DCA 1979).

1972Under the decisions in Merrill v. Simpson, Fla. App. 1969, 220 So.2d 33 , affirmed Simpson v. Merrill, Fla. 1970, 234 So.2d 350 ; R-C-B-S Corporation v. Walter, Fla. App. 1969, 225 So.2d 426 , cert. den.