       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           JOHNSON H. COBB,
                               Appellant,

                                     v.

                   FLORIDA ATLANTIC UNIVERSITY,
                             Appellee.

                              No. 4D17-3490

                              [July 5, 2018]

  Appeal from the Florida Atlantic University Residency Appeals
Committee, Office of the Registrar.

   Jeffrey B. Crockett of Coffey Burlington, P.L., Miami, for appellant.

  Daniel A. Jones, Office of the General Counsel, Florida Atlantic
University, Boca Raton, for appellee.

GERBER, C.J.

   A college student appeals from the university’s final administrative
order denying his request for residency determination for tuition purposes.
The student primarily argues that the university misapplied section
1009.21, Florida Statutes (2017), which defines the criteria for
determining whether a student shall be classified as a resident or
nonresident for the purpose of assessing tuition. We agree with the
student’s argument as to the university’s misapplication of section
1009.21 in his case. We reverse and remand for the university to
reconsider the student’s request by properly applying section 1009.21.

   We present this opinion in three parts:
   1. the procedural history;
   2. section 1009.21’s plain language; and
   3. our review.

                         1. Procedural History

   The student sought determination as a resident for tuition purposes.
To be eligible for residency status, the student sought to prove that he had
established permanent legal residency in this state for at least twelve
consecutive months immediately before the semester for which he sought
resident-based tuition. The student’s proof included, among other things:
an affidavit of Florida domicile; a Florida voter registration; a Florida
driver’s license; a Florida vehicle registration; a Florida bank account; a
Florida apartment lease; and a letter from his Florida employer, indicating
he worked twenty-five hours a week for the past six months.

   The university’s registrar denied the student’s residency determination
request. The registrar’s denial letter stated, in pertinent part:

          The main circumstance considered was employment. Your
      employment did not satisfy Fla. Stat. 1009.21(3)(c)1.h. . . .
      which requires that you must show proof of permanent
      employment in Florida for at least 30 hours per week for a 12
      month period prior to the term for which in-state tuition is
      sought. After a review of the documentation you submitted in
      support of permanent legal residency, the University has
      denied your request for reclassification as a resident student
      for tuition purposes.

(emphasis added).

   The student appealed the denial to the university’s residency appeals
committee. The student’s appeal argued that the registrar’s decision was
based on a misstatement of section 1009.21(3)(c)1.h., Florida Statutes
(2017), because proof of permanent employment in Florida, for at least
thirty hours per week for a twelve month period prior to the term for which
in-state tuition is sought, is not a “requirement,” but instead was just one
form of documentation available to prove permanent Florida residency.

   The university’s residency appeals committee upheld the registrar’s
decision to deny the student’s residency determination. The committee’s
denial letter stated, in pertinent part:

         The circumstances considered was the claimant’s
      employment. The documentation you submitted did not
      satisfy Fla. Stat. 1009.21 which requires the student to
      present clear and convincing evidence that supports
      permanent legal residency in the state for at least 12
      consecutive months.

(emphasis added).


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   The student, having exhausted his administrative remedies within the
university, filed this appeal. The student argues that the university
misapplied section 1009.21 in two respects: (1) by misstating, in the
registrar’s denial letter, that section 1009.21(3)(c)1.h. “requires” him to
have shown proof of permanent employment in Florida for at least thirty
hours per week for a twelve month period prior to the term for which in-
state tuition is sought; and (2) by solely focusing, in the residency appeals
committee’s denial letter, on his employment, when section 1009.21
provides that his employment was just one form of documentation
available to prove permanent Florida residency.

   Given the student’s reliance upon section 1009.21, we provide a
detailed recitation of the statute’s plain language.

                 2. Section 1009.21’s Plain Language

   Section 1009.21 provides, in pertinent part:

      (3)(a) An individual shall not be classified as a resident for
      tuition purposes and, thus, shall not be eligible to receive the
      in-state tuition rate until he or she has provided such
      evidence related to legal residence and its duration . . . as may
      be required by law and by officials of the institution of higher
      education from which he or she seeks the in-state tuition rate.

      (b) Except as otherwise provided in this section, evidence of
      legal residence and its duration shall include clear and
      convincing documentation that residency in this state was for
      a minimum of 12 consecutive months prior to a student’s
      initial enrollment in an institution of higher education.

      (c) Each institution of higher education shall affirmatively
      determine that an applicant who has been granted admission
      to that institution as a Florida resident meets the residency
      requirements of this section at the time of initial enrollment.
      The residency determination must be documented by the
      submission of written or electronic verification that includes
      two or more of the documents identified in this paragraph. No
      single piece of evidence shall be conclusive.

      1. The documents must include at least one of the following:

      a. A Florida voter’s registration card.


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b. A Florida driver license.

c.    A State of Florida identification card.

d. A Florida vehicle registration.

e. Proof of a permanent home in Florida which is occupied
as a primary residence by the individual or by the individual’s
parent if the individual is a dependent child.

f.    Proof of a homestead exemption in Florida.

g. Transcripts from a Florida high school for multiple years
if the Florida high school diploma or high school equivalency
diploma was earned within the last 12 months.

h. Proof of permanent full-time employment in Florida for at
least 30 hours per week for a 12-month period.

2. The documents may include one or more of the following:

a. A declaration of domicile in Florida.

b. A Florida professional or occupational license.

c.    Florida incorporation.

d. A document evidencing family ties in Florida.

e. Proof of membership in a Florida-based charitable or
professional organization.

f. Any other documentation that supports the student’s
request for resident status, including, but not limited to,
utility bills and proof of 12 consecutive months of payments;
a lease agreement and proof of 12 consecutive months of
payments; or an official state, federal, or court document
evidencing legal ties to Florida.

...

(6)(a) . . . [A] person who is classified as a nonresident for
tuition purposes may become eligible for reclassification as a
resident for tuition purposes if that person . . . presents clear

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      and convincing documentation that supports permanent legal
      residency in this state for at least 12 consecutive months
      rather than temporary residency for the purpose of pursuing
      an education, such as documentation of full-time permanent
      employment for the prior 12 months or the purchase of a
      home in this state and residence therein for the prior 12
      months while not enrolled in an institution of higher
      education.

§ 1009.21(3), (6), Fla. Stat. (2017) (emphasis added).

                              3. Our Review

    Based on our review of section 1009.21’s plain language, we agree with
the student’s argument. The university’s interpretation of section 1009.21
was clearly erroneous in two respects. Cf. Hallendy v. Florida Atlantic
University, 16 So. 3d 1057, 1059 (Fla. 4th DCA 2009) (“Where there is
competent substantial evidence in the record which supports an agency’s
determination of fact and the agency’s interpretation of the applicable law
is not clearly erroneous, the agency’s action must be affirmed.”) (emphasis
added; alteration, quotation marks, and citations omitted).

   First, the registrar’s denial letter erroneously stated that section
1009.21(3)(c)1.h. “requires” the student to have shown proof of permanent
employment in Florida for at least thirty hours per week for a twelve month
period prior to the term for which in-state tuition is sought. Section
1009.21(3)(c)1.h.     contains    no     such    “requirement.”      Section
1009.21(3)(c)1.h. includes “[p]roof of permanent full-time employment in
Florida for at least 30 hours per week for a 12-month period” as one of
fourteen itemized forms of documentation available to prove permanent
residency under section 1009.21(3)(c), when only two such forms of
documentation are required. More importantly, section 1009.21(3)(c),
before listing the fourteen itemized forms of documentation available to
prove permanent residency, plainly states: “No single piece of evidence
shall be conclusive.” Thus, the university registrar’s denial letter was
clearly erroneous.

   Second, the residency appeals committee’s denial letter appears to state
that the sole circumstance considered on the student’s appeal was his
employment. If so, such limited consideration was clearly erroneous,
because, as mentioned in the previous paragraph, section 1009.21(3)(c)
clearly states that employment is not the sole circumstance to be
considered.     Moreover, section 1009.21(6)(a), which addresses a


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reclassification request, by its use of the phrase “such as,” clearly states
that employment is not the sole circumstance to be considered.

                                 Conclusion

   Based on the foregoing, we reverse the university’s denial of the
student’s request for residency determination for tuition purposes, and
remand for the university to reconsider the student’s request by properly
applying section 1009.21. See Lindsey v. Bd. of Regents for and on behalf
of Univ. of Fla., 629 So. 2d 941, 943 (Fla. 1st DCA 1993) (remanding
university’s denial of student’s request for residency reconsideration where
university’s denial was based on “requirement” which was nowhere in the
rule governing residency status).

   The student requests us to go one step further and conclude, based on
his evidentiary submission to the university, that he is entitled to the
permanent residency determination. That request is premature, as our
only proper action at this time is to remand for the university to reconsider
the student’s request by properly applying section 1009.21. We make no
comment on whether the university should grant or deny the student’s
permanent residency determination request upon a proper application of
section 1009.21.

   Reversed and remanded for further proceedings consistent with this
opinion.

GROSS and CIKLIN, JJ., concur.

                             *           *       *

   Not final until disposition of timely filed motion for rehearing.




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