NAACP, INC., etc., et al., Petitioners, v. FLORIDA BOARD OF REGENTS, et al., Respondents, 863 So. 2d 294

ANSTEAD, C.J. We have for review a decision of a district court of appeal on the question of a voluntary association’s standing to bring a rule challenge in Florida administrative proceedings. The district court certified the question to be of great public importance: DO APPELLANTS/CROSS-APPEL-LEES HEREIN HAVE STANDING TO MAINTAIN CHALLENGES TO THE SUBJECT RULES? NAACP, Inc. v. Florida Bd. of Regents, 822 So.2d 1, 14 (Fla. 1st DCA 2002). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

For the reasons set forth below, we answer the certified question in the affirmative and quash the First District’s decision. PROCEEDINGS TO DATE The National Association for Advancement of Colored People, Inc. (hereinafter NAACP), and its members Mattie Garvin and Keith Garvin (Garvins), brought a rule challenge to the Board of Regents’ amendments to Florida Administrative Code Rules 6C-6.001 and 6C-6.002 concerning admissions to the State University System. The rule amendments concerned the elimination of certain affirmative action policies by Florida’s state universities.

The association claimed that in addition to its traditional role as an advocacy group for minority rights, its membership included a large number of middle school, high school, and university students who would be affected by the change in policy. The petitioners brought the rule challenge pursuant to

section 120.56(l)(a), Florida Statutes (1999), which states in pertinent part: “Any 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.” The Board of Regents and the Board of Education filed a motion to dismiss for lack of standing, arguing that the allegations of the petition were legally insufficient to demonstrate that any of the petitioners had standing, either individually or in a representative capacity, because they failed to specifically demonstrate how they, or any of NAACP’s members, would suffer an actual injury because of the amendments.

The 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 [rjules 6C-6.001 and 6C-6.002.” NAACP, 822 So.2d at 3. The ALJ found that “significant numbers” of middle school, high school, and college students stand to be substantially affected by the rule amendments. Id. at 4.

The First District summarized the ALJ’s decision as follows: Regarding the merits of the rule challenge, the ALJ held that the repeal of rule 6C-6.001(10)(e)6 (which provided that, “[w]here necessary to achieve established equal access enrollment goals, up to ten percent of the students may be admitted to a limited access program with different criteria”) was “an invalid exercise of delegated legislative authority”; but that all of the other challenged amendments were valid. Id. at 3.

APPEAL The NAACP appealed the ALJ’s decision to the First District, and the Florida Board of Regents and the State Board of Education cross-appealed. In rejecting the ALJ’s decision as to petitioners’ standing to bring a challenge to the admission rules, the First District stated: We conclude that NAACP failed to present competent, substantial evidence to establish that any of its members would suffer “a real and sufficiently immediate injury in fact” because of implementation of any of the rule amendments challenged.

As a result, it failed to demonstrate that any of its members would be “substantially affected” by implementation of any of the challenged amendments. Therefore, it failed to carry its burden of establishing “associational standing” pursuant to the test announced in Florida Home Builders, and we need not consider whether it met the other requirements, including establishing “that the alleged interest [was] arguably within the zone of interest to be protected or regulated.” We hold that NAACP lacked “assoeiational standing” to challenge the rule amendments.

Accordingly, we must reverse the ALJ’s decision to the contrary. Id. at 6. The First District reversed the ALJ’s final order and remanded the case with directions for the ALJ to dismiss the rule challenge for lack of standing. Id. at 8. Judge Browning dissented and expressed the view that the majority opinion conflicted with numerous prior First District decisions on standing as well as this Court’s decision in Florida Home Builders Ass’n v. Department of Labor & Employment Security, 412 So.2d 351 (Fla.1982).

Judge Browning summed up his dissenting position by stating: [I]n my judgment, the crucial factor is how one weighs the impact of the proposed rules on African-Americans’ admission rights to the SUS, as compared to their rights under the repealed affirmative action programs. My “scales” indicate African-American students’ admission to the SUS under legally established affirmative action programs cannot be repealed by agency rules without giving those covered by such programs the right to challenge the repeal, because existing case law indicates they are “substantially affected” for rule challenge purposes.

On the merits, Appellants might not be entitled to relief. However, they have the interest required as “substantially affected parties” to challenge the proposed rules’ validity. Id. at 14 (Browning, J., dissenting). Upon rehearing, the First District certified to this Court the question of petitioners’ standing as one of great public importance. Id. at 14. STANDING IN ADMINISTRATIVE PROCEEDINGS In Florida Home Builders, the Florida Home Builders Association brought suit to challenge a rule adopted by the Bureau of Apprenticeship, Department of Labor and Employment Security. 412 So.2d at 352.

The hearing officer found that the association had standing to bring the rule challenge under

section 120.56, Florida Statutes (1979), but the First District reversed, finding that such an association was not a substantially affected party. Id. at 352 (citing Dep’t of Labor & Employment Sec. v. Florida Home Builders Ass’n, 392 So.2d 21, 22 (Fla. 1st DCA 1980)). However, as in the instant case, the First District certified a question of great public importance: Whether, under

section 120.56, Florida Statutes, a trade association, which is not itself affected by an agency rule but some or all of whose members are substantially affected by the rule, may seek an administrative determination of the invalidity of the rule as a[n][in]valid exercise of delegated legislative authority. Id. at 352. Upon review, this Court answered the certified question in the affirmative, disapproving the First District’s decision and remanding the case for a review of the agency rule on the merits. Id. at 352, 354. In our analysis of “assoeiational standing” in Florida Home Builders, we concluded that the First District’s

interpretation was “an excessively narrow construction of

section 120.56(1)” and that it restricted public access to the processes provided in the Florida Administrative Procedure Act. Id. at 352. In our analysis of the statutorily created “associational standing,” this Court explained that a key purpose of the legislation was to expand rather than restrict public participation in the administrative process: We find the district court’s restriction on the standing of associations is an excessively narrow construction of

section 120.56(1) and results in restricted public access to the administrative processes established in the Florida Administrative Procedure Act,

chapter 120, Florida Statutes (1979). Expansion of public access to the activities of governmental agencies was one of the major legislative purposes of the new Administrative Procedure Act. [n.2] In our view, the refusal to allow this builders’ association, or any similarly situated association, the opportunity to represent the interests of its injured members in a rule challenge proceeding defeats this purpose by significantly limiting the public’s ability to contest the validity of agency rules.

While it is true that the “substantially affected” members of the builders’ association could individually seek determinations of rule invalidity, the cost of instituting and maintaining a rule challenge proceeding may be prohibitive for small builders.

Such a restriction would also needlessly tax the ability of the Division of Administrative Hearings to dispose of multiple challenges based upon identical or similar allegations of unlawful agency action. [N.2], “The principal purpose for the adoption of a wholly-revised administrative procedure act for Florida is to remedy massive definitional, procedural and substantive deficiencies in existing law ... (

v) by broadening public access to the precedents and activities of agencies.... ” Reporter’s Comments on Proposed Administrative Procedure Act for the State of Florida, March 9, 1974, at p. 3, reprinted in 3 A. England & L. Levin-son, Florida Administrative Practice Manual at 79 (1979). Id. at 352-53 & n. 2. After reviewing the legislative history and purpose of

chapter 120, we have concluded that a trade or professional association should be able to institute a rule challenge under

section 120.56 even though it is acting solely as the representative of its members. To meet the requirements of

section 120.56(1), an association must demonstrate that a substantial number of its members, although not necessarily a majority, are “substantially affected” by the challenged rule. Further, the subject matter of the rule must be within the association’s general scope of interest and activity, and the relief requested must be of the type appropriate for a trade association to receive on behalf of its members. Id. at 353-54 (emphasis supplied). We subsequently acknowledged that Florida Home Builders represents the standard for the breadth of standing in administrative rules challenge cases filed under

section 120.56(1) in Palm Point Property Owners’ Ass’n of Charlotte County, Inc. v. Pisarski, 626 So.2d 195,197 (Fla.1993). In Palm Point, we discussed the ramifications of our holding in Florida Home Builders and again explained: “Granting trade and professional associations standing to represent their members was necessary in order to further the legislative purpose of expanding the public’s ability to contest the validity of agency rules.” 626 So.2d at 197. As in Florida Home Builders, we conclude the First District has again construed

section 120.56(1) too narrowly. See Florida Home Builders, 412 So.2d at 352. We conclude the First District failed to properly apply our holding in Florida Home Builders, expanding the rule of standing, when it overruled the ALJ’s determination. The First District instead concluded that the NAACP “failed to demonstrate that any of its members would be ‘substantially affected’ by implementation of any of the challenged amendments.” 822 So.2d at 6 (emphasis supplied).

Similarly, we disagree with the First District’s conclusion that the association had failed to assert any impact of the rule amendments different in kind than the amendments’ impact on all Florida citizens. Rather, we agree with the analysis of Judge Browning wherein he explained: Finally, the majority seeks to support its result by determining that “In short the amendments have not been shown to have an impact on NAACP’s members that is different from the impact of all citizens.” If this statement were true, the majority’s result would be correct. However, this is clearly not the case.

Such a finding can be made only if the obvious impact on African-American students, as compared to nonminority students, under the proposed rules is misapprehended. Before enactment of the proposed rules, African-American students’ admission to the SUS was under affirmative action programs as members of a recognized minority who, in certain circumstances, would receive a “boost” not available to non-minority students. A white male student and other non-minority students were not entitled to a similar advantage.

The proposed rules effect a complete change and make African-American students subject to the identical admission standards as non-minority students. Thus, contrary to the majority’s contention, the effect of the proposed rules on African-American students plainly differs from its effect on non-minority students, and this, without question, provides standing to the NAACP. ... The proposed rules drastically change the admission standards that apply to African-Americans’ and other minority students’ admission to the SUS.

African-Americans constitute fifteen percent of the State’s population, and their rights can best be asserted by the NAACP because “the cost of instituting and maintaining a rule challenge proceeding may be prohibitive” for the NAACP’s members, who are often poor and unable to maintain individual rule challenges. See Florida Home Builders, 412 So.2d at 353. Id. at 12-13.

In short, we find that Judge Browning correctly noted that the association had asserted, and the ALJ had agreed, that a substantial number of the association’s members were both prospective applicants to the State University System and were minorities that would obviously be affected by any change in policy concerning minority admissions. These conclusions are supported by the record and are properly predicated upon the essential requirements of our holding in Florida Home Builders.

It also appears that the First District was adopting a rule of standing that would require a challenge to demonstrate immediate and actual harm, i.e., rejection of admission to a state university by a member before standing would be granted. We required no such showing in Florida Home Builders. Indeed, such a holding would constitute a substantial narrowing of the concept of standing as defined in Florida Home Builders. Under our holding there the required showing is that there would be a substantial effect of the rule change on a substantial number of the association’s members. There is no dispute the.

NAACP’s student members constitute a substantial number of its membership. Further, we agree with the finding of the ALJ that, while not specifically identifying its student members as current applicants to the university system, the association has demonstrated a sufficient impact on its student members as genuine prospective candidates for admission to the state university system to meet the requirement of substantial impact.

Similarly, we did not impose a requirement in Florida Home Builders that an association would have to prove that one of its members would actually prevail on the merits in a rule challenge in order to establish associational standing. Such a concept improperly mixes the issue of merit with the issue of standing. Conversely, of course, we caution that just because the NAACP can establish “associational standing” under

section 120.68(1), Florida Statutes (2002), and Florida Home Builders does not mean that it will automatically prevail on the rule challenge.

Finally, we note that Judge Browning also pointed out the seeming incongruity of the majority’s holding with prior decisions of the same court liberally applying the rule of standing announced by this Court in Florida Home Builders: Moreover, there exists no rational basis upon which to allow individuals’ fear of injuries to manatees and their habitat, regulation of professionals, and use of endangered lands, etc., to support standing, and deny a similar status to the NAACP’s minority students faced with the repeal of affirmative action programs.

If this is the correct status of the law, it should be sanctioned by the Florida Supreme Court, not a split panel of this court. NAACP, 822 So.2d at 13 (Browning J., dissenting). In other words, Judge Browning was suggesting that it made lit-tie sense to grant standing to persons who had formed associations out of a common interest in protecting wildlife or the environment, and yet deny standing to an association that was formed to protect the rights of minorities and is composed substantially of minorities, when policy concerning the admission of minorities to state universities was changed. We agree.

Accordingly, we quash the First District’s decision and remand for further proceedings in accord with this opinion. It is so ordered. PARIENTE, LEWIS, and QUINCE, JJ., concur. WELLS, J., dissents with an opinion, in which CANTERO and BELL, JJ., concur. . The respondents have suggested to this Court that the instant case is moot because the rules and amendments at issue have now been adopted by a separate governmental entity with constitutional authority to enact such rules, thus invalidating a challenge under

section 120.56(l)(a), Florida Statutes (1999). However, we decline the suggestion. See Holly v. Auld, 450 So.2d 217, 218 n. 1, (Fla. 1984) ("It is well settled that mootness does not destroy an appellate court’s jurisdiction ... when the questions raised are of great public importance or are likely to recur.”). However, our decision in this case should not be construed to preclude the parties from raising the issue of mootness in the district court on remand. .

The opinion below explains the interests of Mattie and Keith Garvin in this case: Appellant Keith Garvin is an African-American who was in the tenth grade at a Florida public high school. He was also active in the NAACP Youth Council. He had not applied to any university, but, upon graduation from high school, hoped to major in computer science or engineering at a university in the State University System. Appellant Mattie Garvin is Keith's mother. She was a member of NAACP, and was interested in 'providing] her son ... with the best possible educational opportunities.'' NAACP, 822 So.2d at 6-7. .

The petitioners also challenged rule 6C-6.003, relating to admissions to graduate and professional schools. The ALJ held that the petition's allegations were legally insufficient to demonstrate standing as to NAACP in its individual capacity and as to the Garvins' standing to challenge the rule amendments. NAACP, 822 So.2d at 3. The petitioners have never challenged that decision on appeal and it is not a subject of this review. .

In the instant case, the First District did conclude that the NAACP technically qualified as an “association” under our decision in Florida Home Builders, although it is not a trade or professional association. NAACP, 822 So.2d at 4. . It also appears the First District took the position the NAACP did not have “associational standing” in this case because it did not consider Keith Garvin and his mother as providing the NAACP with a good example of association members who were going to suffer “a real and sufficiently immediate injury in fact” under the challenged rule amendments. 822 So.2d at 6.

However, both federal and Florida case law agree that when an association is seeking standing, the individual members are not required to participate. See Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Florida Home Builders, 412 So.2d at 353. Rather, both federal and Florida case law on this subject are well settled that "associational standing” for administrative challenges is contingent on the organization’s demonstration that many of its members, in general, stand to be affected by the rule. See Florida Home Builders, 412 So.2d at 353. .

Judge Browning cited several First District cases, stating: "In keeping with the rationale expressed by Florida Home Builders, this court has found sufficient 'standing in analogous situations to support a rule challenge by associations.” 822 So.2d at 9; see Southwest Florida Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So.2d 594 (Fla. 1st DCA 2000); Friends of the Everglades, Inc. v. Bd. of Trs. of Internal Improvement Trust Fund, 595 So.2d 186 (Fla. 1st DCA 1992); Coalition of Mental Health Professions v. Dep’t of Prof'l Regulation, 546 So.2d 27 (Fla. 1st DCA 1989).