08-001577RP Carrie Johnson, As Lawful Custodian And Next Friend Of Minor Child, Jevon Evens vs. Department Of Children And Family Services
 Status: Closed
DOAH Final Order on Tuesday, November 4, 2008.


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Summary: The proposed rule is not an invalid exercise of delegated legislative authority; operative cut-off date of 10/01/07 for repayment of public assistance benefit overpayment is not arbitrary and does not contravene statute.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8CARRIE JOHNSON, AS LAWFUL )

13CUSTODIAN AND NEXT FRIEND OF )

19MINOR CHILD, JEVON EVENS, )

24)

25Petitioners, )

27)

28vs. ) Case Nos. 08-1577RP

33)

34DEPARTMENT OF CHILDREN AND )

39FAMILY SERVICES, )

42)

43Respondent. )

45)

46SUMMARY FINAL ORDER

49A formal administrative hearing was unnecessary in this

57case before the Division of Administrative Hearings, by

65Daniel M. Kilbride, Administrative Law Judge, and this matter

74is decided on Cross Motions for Summary Final Order.

83APPEARANCES

84For Petitioner: Cindy Huddleston, Esquire

89Vileta Combs, Esquire

92Florida Legal Services, Inc.

962425 Torreya Drive

99Tallahassee, Florida 32303

102Valory Greenfield, Esquire

105Florida Legal Services, Inc.

1093000 Biscayne Boulevard, Suite 450

114Miami, Florida 33137

117Heather Tagert, Esquire

120Bay Area Legal Services, Inc.

125829 W. Martin Luther King Boulevard

131Suite 200

133Tampa, Florida 33603

136For Respondent: Herschel C. Minnis, Esquire

142Department of Children and Family Services

1481317 Winewood Boulevard

151Building. 2, Room 204B

155Tallahassee, Florida 32399-0700

158STATEMENT OF THE ISSUES

162Whether proposed rule 65A-1.900(2)(a) of Respondent is an

170invalid exercise of delegated legislative authority because the

178proposed rule is arbitrary and capricious and/or it enlarges,

187modifies, or contravenes Section 414.41, Florida Statutes, the

195specific provision of law implemented.

200PRELIMINARY STATEMENT

202There are several interrelated cases which commenced when

210Petitioner challenged an unpromulgated policy of Respondent's as

218an unadopted agency statement meeting the definition of a rule.

228This policy prohibited payment of pre-October 1, 2007, cash

237assistance withheld from Petitioner Carrie Johnson and her

245grandson Jevon Evens. The Petition to Determine Invalidity of

254Unadopted Rule, dated November 2, 2007 [hereafter "First

262Petition], was assigned DOAH Case No. 07-5066RU. After

270undertaking discovery, Petitioner moved for summary final order

278on February 1, 2008, asking this tribunal to find the unadopted

289policy invalid. Respondent then proposed a rule which

"297address[ed] the agency statement Petitioner contends

303constitutes an unpromulgated rule" and moved, inter alia , to

312abate the case. See Respondent's Motion to Dismiss or

321Alternative Stay/Abate Administrative Proceedings [hereafter

"326Motion to Abate"]. Petitioner did not object to abatement, and

337the unpromulgated rule challenge, Case No. 07-5066RU, was placed

346in abeyance. An Order placing the case in abeyance was entered

357on March 13, 2008.

361After entry of the abatement of Petitioner's First

369Petition, Respondent published a Proposed Rule amending Florida

377Administrative Code Rule 65A-1.900(2)(a) to incorporate the

384agency statement challenged as unpromulgated. Petitioner

390challenged the validity of the substance of the proposed rule as

401being beyond delegated legislative authority. Petition to

408Determine Invalidity of Proposed Rule, filed March 28, 2008

417(hereafter "Second Petition), was assigned DOAH Case No.

42508-1577RU. The unpromulgated rule challenge, First Petition,

432and the proposed rule challenge, Second Petition, were

440consolidated by Order dated April 9, 2008.

447Petitioner thereafter moved for summary final order on her

456Second Petition, the proposed rule challenge. Respondent

463responded by stating it would delete the contested sentence that

473allegedly makes the proposed rule an invalid exercise of

482delegated legislative authority. Thereafter, Respondent's

487Notice of Change was published in the Florida Administrative

496Weekly demonstrating that the challenged language providing

"503. . . [c]ash assistance benefits will not be paid to offset

515recovery prior to October 1, 2007, from individuals who were

525children in the overpaid assistance group . . ." is deleted from

537proposed rule 65A-1.900(2)(a). Based on this chain of events,

546Petitioner moved to set aside its March 13, 2008, Order Placing

557Case 07-5066RU in Abeyance.

561Timely following Respondent's publication of its Notice of

569Change, Petitioner challenged the validity of the Notice of

578Change as being beyond delegated legislative authority.

585Petitioner charges that Respondent materially failed to follow

593rulemaking procedures/requirements and acted arbitrarily and

599capriciously. Petition to Determine Invalidity of Notice

606of Change to Proposed Rule 65A-1.900(2)(a) was filed

614June 25, 2008 (hereafter "Third Petition"), and assigned

623DOAH Case No. 08-3106RP. Petitioner further filed a motion to

633consolidate the Third Petition with the first two challenges.

642Following the filing of the Third Petition, Respondent

650moved for summary disposition of same. After responding to

659same, Petitioner cross-moved for summary final order on her

668Third Petition. On September 9, 2008, Respondent published with

677Florida Administrative Weekly, a Notice of Proposed Rule

68565A-4.220, which sets out inter alia , Respondent's proposal for

694limiting the application of policy changes in the Temporary Cash

704Assistance (TCA) program, and if, and when, it will notify TCA

715recipients about policy changes that may affect them. A public

725hearing was held on the proposed rule on October 8, 2008.

736Petitioner filed a Petition to Determine Invalidity of

744Proposed Rule 65A-4.220 on October 20, 2008 (hereafter Fourth

753Petition), which was assigned DOAH Case No. 08-5227RP. That

762matter remains pending.

765FINDINGS OF FACT

768The undisputed material facts are as follows:

7751. Carrie Johnson is the maternal grandmother and

783caretaker of Jevon Kyshan Evens, aged 17, and Willard Cody

793Sanders, aged 15. Ms. Johnson and her grandchildren live at

803806 E. James Street, Tampa, Florida 33603. Ms. Johnson has

813court-ordered custody of both of her grandchildren. During all

822times relevant to these proceedings, Jevon Kyshan Evens was a

832minor child.

8342. Ms. Johnson currently receives a maximum of $637 in

844Supplemental Security Income (hereafter "SSI") subsistence

851disability benefits. She gets governmental housing assistance.

858She also gets TCA for both grandsons to help her care for them.

871For her two grandsons, the most Ms. Johnson is eligible to

882receive in TCA is a grant of $241 each month.

8923. Respondent's records show that, at least as early as

9021992, Jevon lived with Ms. Johnson.

9084. At one time, Jevon went to live with his natural

919mother. However, Jevon moved back in with his grandmother,

928Carrie Johnson.

9305. Respondent charged Jevon's natural mother with an

938overpayment of $2,562 in TCA benefits.

9456. Respondent reduced Petitioner's cash assistance

951benefits as a means to recover the outstanding cash assistance

961overpayment claim established against the mother. The authority

969cited for Respondent's action was Florida Administrative Code

977Rule 65A-1.900, which implements Section 414.41, Florida

984Statutes.

9857. Prior to October 1, 2007, Respondent began to collect

995Jevon's mother's overpayment by reducing the amount of TCA it

1005gave to Carrie Johnson for Jevon. Respondent recouped at least

1015$369 of Jevon's mother's overpayment from Jevon's temporary

1023assistance between 2005 and the end of 2007. Respondent

1032continued to reduce Ms. Johnson's TCA benefits to recoup Jevon's

1042mother's overpayment until the end of December 2007.

10508. Effective October 1, 2007, however, Respondent changed

1058its cash assistance program's benefit recovery policy based on a

1068different interpretation of Subsection 414.41(1), Florida

1074Statutes. Prior to October 1, 2007, all participants in the

1084cash assistance program at the time an overpayment occurred were

1094identified as a "responsible person" for purposes of repayment

1103of a cash assistance overpayment claim. However, as of

1112October 1, 2007, the meaning of "responsible person" was changed

1122by making "adults" the only group of people who could be

1133responsible for repaying cash assistance overpayment claims.

1140Therefore, it excluded recovery of cash assistance overpayments

1148from minors.

11509. Consistent with the new policy concerning "adults" and

"1159responsible persons," Respondent voluntarily restored cash

1165assistance benefits to currently active cash assistance

1172households that contained a minor child in the assistance group

1182if the household's cash assistance benefits had been reduced to

1192recover repayment of an outstanding overpayment cash assistance

1200claim. The restoration period covered October 1, 2007, through

1209December 31, 2007. Petitioner's household was a benefactor of

1218Respondent's decisions to restore the cash assistance benefits

1226for the months of October and November, 2007.

123410. Although Respondent paid Ms. Johnson supplemental TCA

1242to offset the benefits it recovered in October and November

12522007, Respondent did not return to Jevon or Carrie Johnson any

1263of the money that it kept from Jevon's cash assistance prior to

1275October 1, 2007, in order to recoup his mother's overpayment.

128511. Carrie Johnson is substantially affected by the

1293proposed rule and, thus, has standing in this challenge.

130212. On December 14, 2007, Respondent published Notice of

1311Development of Rulemaking with the stated purpose of

"1319align[ing] . . . policies for recovery of overpayment in the

1330public assistance programs."

133313. On March 7, 2008, Respondent published Notice of

1342Proposed Rule stating that "the proposed rule aligns policies

1351for recovery of overpayment in the public assistance

1359programs. . . . The proposed rule amends language about who is

1371responsible for repayment of overpayment of public assistance

1379benefits."

138014. The operative date of October 1, 2007, was set forth

1391in the second sentence of proposed rule 65A-1.900(2)(a) ("Cash

1401assistance benefits will not be paid to offset recovery prior to

1412October 1, 2007, from individuals who were children in the

1422overpaid assistance group").

142615. Petitioner alleges that the operative date of

1434October 1, 2007, is arbitrary and capricious.

144116. Proposed rule 65A-1.900(2)(a), as published on

1448March 7, 2008, reads, in its pertinent parts, as follows:

1458* * *

1461(2) Persons Responsible for Repayment of

1467Overpayment.

1468(a) Persons who received AFDC and cash

1475assistance overpayments as an adult shall

1481be responsible for repayment of the

1487overpayment . . . . Cash assistance benefits

1495will not be paid to offset recovery prior to

1504October 1, 2007 from individuals who were

1511children in the overpaid assistance group.

1517* * *

1520(e) For the purpose of this rule, an adult

1529is defined as :

15331. Eighteen (18) years of age or older ,

15412. A teen parent receiving assistance for

1548themselves as an adult ,

15523. An emancipated minor, or

15574. An individual who has become married

1564even if the marriage ended in divorce.

1571(Underlining in original)

157417. The summary section of the proposed rule states that

1584it ". . . amends language about who is responsible for repayment

1596of overpayment of public assistance benefits. . . ." The

1606purpose and effect of the proposed rulemaking is the alignment

1616of policies for recovery of overpayment in the public assistance

1626program.

162718. Subsection 414.41(1), Florida Statutes, reads, in its

1635pertinent parts, as follows:

1639414.41. Recovery of payments made due to

1646mistake or fraud. --

1650(1) Whenever it becomes apparent that any

1657person . . . has received any public

1665assistance under this chapter to which she

1672or he is not entitled, through either simple

1680mistake or fraud on the part of the

1688department or on the part of the recipient

1696or participant, the department shall take

1702all necessary steps to recover the

1708overpayment. Recovery may include Federal

1713Income Tax Refund Offset Program collections

1719activities in conjunction with Food and

1725Consumer Service and the Internal Revenue

1731Service to intercept income tax refunds due

1738to clients who owe food stamp or WAGES debt

1747to the state. The department will follow

1754the guidelines in accordance with federal

1760rules and regulations and consistent with

1766the Food Stamp Program. The department may

1773make appropriate settlements and shall

1778establish a policy and cost-effective rules

1784to be used in the computation and recovery

1792of such overpayments.

1795(Emphasis added.)

179719. Following the filing of Petitioner's Motion for

1805Summary Final Order on the Second Petition, Respondent moved to

1815delete the contested sentence Petitioner objected to.

1822Thereafter, Respondent's Notice of Change was published in the

1831Florida Administrative Weekly striking the sentence which read:

"1839. . . [c]ash assistance benefits will not be paid to offset

1851recovery prior to October 1, 2007, from individuals who were

1861children in the overpaid assistance group. . . ."

187020. Following publication of the Notice of Change, the

1879Third Petition was filed, in which Petitioner seeks a

1888determination that the Notice of Change, the scheduled public

1897hearing, and Respondent's intent to change the language of

1906proposed rule 65A-1.900(2)(a), Florida Administrative Code, as

1913originally published in the Florida Administrative Weekly, by

1921deleting a sentence constitute an invalid exercise of delegated

1930legislative authority. See § 120.52(8)(a), Fla. Stat. (2007).

193821. When Respondent submitted documents to the Joint

1946Administrative Procedures Committee (JAPC) concerning a Notice

1953of Change to Proposed Rule 65A-1.900, no reason for the change

1964was included in these documents. JAPC wrote to Respondent and

1974asked the agency to explain the reason for the Notice of Change.

1986Respondent has not responded to JAPC's request for an

1995explanation of the reason for the Notice of Change.

200422. There is no written record of JAPC instructing

2013Respondent to hold a public hearing to discuss the Notice of

2024Change.

202523. Respondent published a Notice of Rule Development to

2034amend Florida Administrative Code Rule 65A-4.220. The draft

2042text of the proposed rule was published and a public hearing was

2054held on October 8, 2008. A Petition to Determine the Invalidity

2065of Proposed Rule 65A-4.220 was filed October 20, 2008,

2074[hereafter "Fourth Petition"], and assigned DOAH Case

2082No. 08-5227RP.

2084CONCLUSIONS OF LAW

2087Jurisdiction

208824. The Division of Administrative Hearings has

2095jurisdiction over the parties and the subject matter of this

2105proceeding pursuant to Section 120.56, Florida Statutes (2007).

211325. Petitioner is an individual whose substantial

2120interests will be affected by the proposed rule, and has

2130standing to bring this rule challenge.

2136Burden of Proof

213926. Initially, Petitioner "shall state with particularity

2146the objections to the proposed rule and the reasons that the

2157proposed rule is an invalid exercise of delegated legislative

2166authority." § 120.56(2)(a), Fla. Stat (2007). Then, the

2174Respondent "has the burden to prove by a preponderance of the

2185evidence that the proposed rule is not an invalid exercise of

2196delegated legislative authority as to the objections raised."

2204Id. ; see also Southwest Florida Water Management District v.

2213Charlotte County , 774 So. 2d 903, 908 (Fla. 2nd DCA 2001).

2224("Nothing in Subsection 120.56(2) requires the agency to carry

2234the burden of presenting evidence to disprove an objection

2243alleged in a petition challenging a proposed rule. Instead a

2253party challenging a proposed rule has the burden of establishing

2263a factual basis for the objections to the rule, and then the

2275agency has the ultimate burden of persuasion to show that the

2286proposed rule is a valid exercise of delegated legislative

2295authority."), citing St. Johns River Water Management District

2304v. Consolidated-Tomoka Land Co. , 717 So. 2d 72, 76 (Fla. 1st

2315DCA 1998). The court in Consolidated-Tomoka Land Co. , declined

2324to require the agency to go forward with evidence to disprove

2335every objection made in the petition. Consolidated-Tomoka

2342Land Co. , 717 So. 2d at 76. Instead, the court adopted a

2354practical approach that requires the party challenging the

2362proposed rule to establish a factual basis for the objections

2372put forth in the petition. Id. at 77.

238027. A rule may not be declared invalid on any ground other

2392than whether the rule is an invalid exercise of delegated

2402legislative authority without impermissibly extending the

2408authority of the Administrative Law Judge (ALJ). See Schiffman

2417v. Department of Professional Regulation, Board of Pharmacy ,

2425581 So. 2d 1375, 1379 (Fla. 1st DCA 1991)("An administrative

2436agency has only the authority that the legislature has conferred

2446it by statute."). Thus, a proposed rule may not be invalidated

2458simply because the ALJ believes it is not the wisest or best

2470choice. See Bd. of Trustees of Internal Improvement Fund v.

2480Levy , 656 So. 2d 1359, 1364 (Fla. 1st DCA 1995)("The issue

2492before the [ALJ] in this [rule challenge] case was not whether

2503the Trustees made the best choice . . . or whether their choice

2516is one that the appellee finds desirable . . . ."); Dravo Basic

2530Materials Co., Inc. v. Department of Transportation , 602 So. 2d

2540632, 634 (Fla. 2nd DCA 1992)("It is not our task, however, to

2553write the best rule for DOT. That was not the task of the

2566[ALJ].").

256828. Petitioner contends that when the Legislature amended

2576Subsection 414.41(1), Florida Statutes, it intended to prohibit

2584or preclude Respondent from reducing her cash assistance

2592benefits to repay the overpayment claim established against

2600Jevon Evens' mother. Petitioner contends that when the

2608Legislature amended Subsection 414.41(1), Florida Statutes, it

2615also intended to incorporate by reference Title 7 Code of

2625Federal Regulations subpart 273.17, Restoration of lost

2632benefits. Subpart 273.17 is the basis for Petitioner's claim of

2642entitlement to restored cash assistance benefits prior to

2650October 1, 2007.

2653Statutory Construction

265529. Legislative intent is the polestar that guides a

2664court's statutory construction analysis. Reynolds v. State ,

2671842 So. 2d 46, 49 (Fla. 2002). In determining the Legislature's

2682intent in using a particular word in a statute, the courts may

2694examine other uses of the word in similar contexts. Hankey v.

2705Yarian , 755 So. 2d 93, 96 (Fla. 2000).

271330. Statutory phrases are not to be read in isolation, but

2724rather within the context of the entire section. Jones v. ETS

2735of New Orleans, Inc. , 793 So. 2d 912, 915 (Fla. 2001). The

2747legislative use of different terms in different sections is

2756strong evidence that different meanings were intended.

2763Department of Professional Regulation, Board of Medical

2770Examiners v. Durrani , 455 So. 2d 515, 518 (Fla. 1st DCA 1984).

278231. When the Legislature enacts a statute, it is presumed

2792to know existing statutes and the case law construing them.

2802Williams v. Christian , 335 So. 2d 358, 360 (Fla. 1st DCA 1976).

281432. The statutory construction principle in pari materia

2822requires two statutes relating to the same thing or subject to

2833be construed together "so as to harmonize both statutes and give

2844effect to the Legislature's intent." Maggio v. Florida

2852Department of Labor and Employment , 899 So. 2d 1074, 1078

2862(Fla. 2005).

286433. Legislative intent can be discerned by reading the

2873statute as a whole. See , e.g. , Young v. Progressive

2882Southeastern Ins. Co. , 753 So. 2d 80 (Fla. 2000); Acosta v.

2893Richter , 671

2895So. 2d 149 (Fla. 1996); and Klonis v. Department of Revenue ,

2906766 So. 2d 1186 (Fla. 1st DCA 2000). Legislative history

2916concerning Subsection 414.41(1), Florida Statutes, can also be

2924used to discern legislative intent. See Department of Insurance

2933v. Insurance Services Offices , 434 So. 2d 908, 911 (Fla. 1st

2944DCA 1983).

294634. It is widely recognized that "[a]gencies are to be

2956accorded wide discretion in the exercise of their lawful

2965rulemaking-authority, clearly conferred or fairly implied and

2972consistent with the agency's general statutory duties."

2979Department of Natural Resources v. Wingfield Development

2986Company , 581 So. 2d 193, 197 (Fla. 1st DCA 1991).

299635. Respondent is to be "accord[ed] great deference to

3005administrative interpretations of statutes which the . . .

3014agency is required to enforce." Department of Environmental

3022Regulation v. Goldring , 477 So. 2d 532, 534 (Fla. 1985).

303236. "[T]he agency's interpretation of a statute need not

3041be the sole possible interpretation or even the most desirable

3051one; it need only be within the range of possible

3061interpretations." Department of Professional Regulation, Board

3067of Medicine Examiners v. Durrani , 455 So. 2d 515, 517 (Fla. 1st

3079DCA 1984). See Board of Podiatric Medicine v. Florida Medical

3089Association , 779 So. 2d 658, 660 (Fla. 1st DCA 2001) (upholding

3100agency's definition "[i]n light of the broad discretion and

3109deference which is accorded an agency in the interpretation of a

3120statute which it administers, and because such an interpretation

3129should be upheld when it is within the range of permissible

3140interpretations[.]").

314237. The ALJ has the discretion to declare the proposed

3152rule wholly or partly invalid. § 120.56(2)(b), Fla. Stat.

3161(2007).

316238. Respondent's interpretation is reasonable in that by

3170amending Subsection 414.41(1), Florida Statutes, the Legislature

3177intended only to: (1) give Respondent the authority to use the

3188collection activities of the Federal Income Tax Refund Offset

3197Program, and (2) if Respondent used the Federal Income Tax

3207Refund Offset Program, Respondent must follow the guidelines in

3216Title 7 Code of Federal Regulations subpart 273.18(n) governing

3225the Treasury's Offset Program.

322939. There is no evidence tending to show Petitioner's

3238interpretation of the language amending Subsection 414.41(1),

3245Florida Statutes, is what the Legislature intended. More

3253importantly, interpreting the language in the amendment as

3261including or incorporating federal Food Stamp Program's

3268guidelines on restoring cost benefits and/or as stopping

3276recovery of cash assistance overpayment debts by reducing

3284Petitioner's cash assistance benefit award makes the

3291Legislature's specific and express use of "Federal Income Tax

3300Refund Offset Program collection activities" and the

3307Legislature's specific and express use of "intercept income tax

3316refunds due to clients who owe food stamp or wages debt to the

3329state," completely meaningless.

333240. Therefore, Petitioner's reading and interpretation of

3339the language amending Subsection 414.41(1), Florida Statutes, is

3347rejected. See Times Publishing Co. v. Williams , 222 So. 2d 470

3358(Fla. 2nd DCA 1969) (a court cannot presume that the Legislature

3369employed useless language in enacting a statute). See also City

3379of St. Petersburg v. Nasworthy , 751 So. 2d 772, 774 (Fla. 1st

3391DCA 2000) (the "doctrine of the last antecedent," provides that

3401relative and qualifying words, phrases and clauses are to be

3411applied to the words or phrase immediately preceding, and are

3421not to be construed as extending to, or including, others more

3432remote.). Clearly, Petitioner's interpretation of Subsection

3438414.41(1), Florida Statutes, violates the doctrine of the last

3447antecedent.

344841. In conclusion, proposed rule 65A-1.900(2)(a) changes

3455Respondent's policy about who is liable for repayment of cash

3465assistance overpayment debts owed to the state. The change is

3475made by saying, in a clear and straightforward manner, "adults"

3485are the "responsible persons." The term "adults" is defined in

3495proposed rule 65A-1.900(2)(e). As defined, persons who were

3503minor children in the cash assistance group when the overpayment

3513occurred will no longer be responsible for repayment of the cash

3524assistance overpayment debt.

352742. The ultimate question in a proposed rule challenge is

3537whether the rule is "an invalid exercise of delegated

3546legislative authority." § 120.56(1), Fla. Stat. (2007).

3553Subsection 120.52(8), Florida Statutes (2007), defines the term

3561as an "action which goes beyond the powers, functions, and

3571duties delegated by the Legislature."

357643. In 1999, the Legislature revised the closing paragraph

3585of Subsection 120.52(8), Florida Statutes, after the decision in

3594Consolidated-Tomoka Land Co. , which held that "[a] rule is a

3604valid exercise of delegated legislative authority if it

3612regulates a matter directly within the class of powers and

3622duties identified in the statute to be implemented."

3630Consolidated-Tomoka Land Co. , 717 So. 2d at 80.

363844. The language of Subsection 120.52(8), Florida

3645Statutes, was amended to read:

3650A grant of rulemaking authority is necessary

3657but not sufficient to allow an agency to

3665adopt a rule; a specific law to be

3673implemented is also required. An agency may

3680adopt only rules that implement or interpret

3687the specific powers and duties granted by

3694the enabling statute. No agency shall have

3701authority to adopt a rule only because it is

3710reasonably related to the purpose of the

3717enabling legislation and is not arbitrary

3723and capricious or is within the agency's

3730class of powers and duties , nor shall an

3738agency have the authority to implement

3744statutory provisions setting forth general

3749legislative intent or policy. Statutory

3754language granting rulemaking authority or

3759generally describing the powers and

3764functions of an agency shall be construed to

3772extend no further than implementing or

3778interpreting the specific powers and duties

3784conferred by the same statute. (Emphasis

3790supplied.)

3791§ 120.52(8), Fla. Stat. (2005). See Board of Trustees of the

3802Internal Improvement Trust Fund v. Day Cruise Association, Inc. ,

3811794 So. 2d 696 (Fla. 1st DCA 2001); See also Southwest Florida

3823Water Management District v. Save the Manatee Club, Inc. ,

3832773 So. 2d 594 (Fla. 1st DCA 2000).

384045. The test for invalid delegation of legislative

3848authority is whether a rule gives effect to a "specific law to

3860be implemented" and whether the rule implements or interprets

"3869specific powers and duties." Day Cruise , 794 So. 2d at 704.

388046. The court in Day Cruise discussed the importance of

3890the 1999 Administrative Procedure Act (the "Act") amendments as

3900follows:

3901Under the 1996 and 1999 amendments to the

3909APA, it is now clear, agencies have

3916rulemaking authority only where the

3921Legislature has enacted a specific statute,

3927and authorized the agency to implement it,

3934and then only if the (proposed) rule

3941implements or interprets specific powers or

3947duties, as opposed to improvising in an area

3955that can be said to fall only generally

3963within some class of powers or duties the

3971Legislature has conferred on the agency.

3977Day Cruise , 794 So. 2d at 700. See generally Save the Manatee

3989Club, Inc. , 773 So. 2d at 598-599 (interpreting Subsection

3998120.52(8), Florida Statutes (1999), as removing an agency of the

4008authority to adopt a rule merely because it is with the agency's

4020class of powers and duties).

402547. Petitioner contends proposed rule 65A-1.900(2)(a)

4031enlarges, modifies, or contravenes Subsection 414.41(1), Florida

4038Statutes. However, nothing in Subsection 414.41(1), Florida

4045Statutes, forbids or prohibits Respondent from limiting the

4053composition of the group of persons responsible for repayment of

4063cash assistance overpayment debts to adults. There is also

4072nothing in Subsection 414.41(1), Florida Statutes, that forbids

4080or prohibits Respondent from removing minor children of the cash

4090assistance group from the group of persons who will continue to

4101be responsible for repayment of cash assistance overpayment

4109debts. Therefore, changing the definition of "persons

4116responsible" by limiting liability for repayment of cash

4124assistance overpayment debts to "adults" does not contravene

4132Subsection 414.41(1), Florida Statutes.

413648. Changing the composition of the group of persons who

4146will remain liable and responsible for repayment of cash

4155assistance overpayment debts was the result of a closer

4164examination of Subsection 414.41(1), Florida Statutes.

4170Specifically, Subsection 414.41(1), Florida Statutes, clearly

4176makes any person who " received " public assistance under chapter

4185414 to which they are not entitled liable for repayment of cash

4197assistance overpayment debts.

420049. However, prior to September 2007, Subsection

4207414.41(1), Florida Statutes, was interpreted to mean that minor

4216children could and would also be made responsible for repayment

4226of cash assistance overpayment debts because they were

4234considered to be the recipient of the cash assistance benefit.

4244This interpretation was unduly harsh and punished children for

4253acts of their parent(s) and/or caregivers. Under this

4261interpretation, minor children are included as "persons

4268responsible" for repayment based on what could appear to be

4278their having directly benefited from the cash assistance

4286payment.

428750. Removing minor children of cash assistance groups from

4296the group of "persons responsible" for repayment of cash

4305assistance overpayment debts does not enlarge or modify

4313Subsection 414.41(1), Florida Statutes. On its face, Subsection

4321414.41.(1), Florida Statutes, only makes liable those persons

4329who "received" cash assistance benefits they are not entitled to

4339receive. Minor children do not apply for cash assistance

4348benefits. Minor children do not receive cash assistance

4356benefits in the same sense as a payee receives cash assistance

4367grants. Cash assistance benefits are not given in-hand to minor

4377children. Rather, cash assistance benefits are issued to and

4386received by adults. Therefore, minor children, literally, do

4394not meet the definition of "participant" set forth in Subsection

4404414.0252(9), Florida Statutes. Accordingly, the removal of

4411minor children from the group of "persons responsible" for

4420repayment of cash assistance overpayment debts does not

4428constitute an unlawful enlargement or modification of Subsection

4436414.41(1), Florida Statutes.

443951. Offsetting cash assistance benefits to collect

4446outstanding cash assistance overpayment debts is not an unlawful

4455enlargement, modification, or contravention of Subsection

4461414.41(1), Florida Statutes, as set forth in Florida

4469Administrative Code Rule 65A-1.900 and proposed rule

447665A-1.900(2)(a). In fact, offsetting cash assistance benefits

4483as a means of collecting cash assistance overpayment debts is

4493fully consistent with Subsection 414.41(1), Florida Statutes.

450052. Specifically, Subsection 414.41(1), Florida Statutes,

4506clearly establishes that the Legislature intended for cash

4514assistance overpayment debts to be recovered by the offsetting

4523of benefits. Subsection 414.41(1), Florida Statutes, reads, in

4531its pertinent part, ". . . the department shall take all

4542necessary steps to recover the overpayment . . . ," and further,

"4553. . . [t]he department . . . shall establish a policy and cost-

4567effective rules to be used in the computation and recovery of

4578such overpayments."

458053. The use of a policy of offsetting current cash

4590assistance benefits by the amount of an outstanding cash

4599assistance overpayment debt is a cost-effective method of

4607collecting cash assistance overpayment debts. The cost-

4614effectiveness of offsetting benefits as a collections tool is

4623apparent from the Legislature's enactment of Subsection

4630414.41(1), Florida Statutes, which clearly gives Respondent the

4638authority to use the Federal Income Tax Refund Offset Program to

4649collect cash assistance overpayment debts. Therefore, Rule

465665A-1.900 and proposed rule 65A-1.900(2)(a) are not only within

4665the scope of and consistent with what the Legislature intended

4675by enacting Sections 414.41 and 414.45, Florida Statutes, but

4684Rule 65A-1.900 and proposed rule 65A-1.900 are also not

4693arbitrary or capricious, or otherwise an invalid exercise of

4702delegated legislative authority by Respondent.

470754. Petitioner contends that offsetting and keeping cash

4715assistance benefits collected from her to repay the outstanding

4724cash assistance overpayment debt owed by and established against

4733Jevon Evens' mother is wrong. Petitioner's contention is based

4742on her erroneous interpretation of Subsection 414.41(1), Florida

4750Statutes. Garrison Corporation v. Department of Health and

4758Rehabilitative Services , 662, So. 2d 1374 (Fla. 1st DCA 1995);

4768Debose v. Department of Health and Rehabilitative Services , 598

4777So. 2d 195 (Fla. 3rd DCA 1992); Gonzalez v. Department of Health

4789and Rehabilitative Services , 558 So. 2d 32 (Fla. 1st DCA 1989).

480055. In addition, Respondent has stated it will change

4809proposed rule 65A-1.900(2)(a) by removing the passage, ". . .

4819[c]ash assistance benefits will not be paid to offset recovery

4829prior to October 1, 2007, from individuals who were children in

4840the overpaid assistance group. . . ." Therefore, it is not

4851necessary for this tribunal to determine at this time whether

4861keeping cash assistance benefits collected to repay cash

4869assistance overpayment debts pursuant to existing Rule

487665A-1.900(2)(a) is correct or not. See , e.g. , Osceola Fish

4885Farmers Association v. Division of Administrative Hearings ,

4892830 So. 2d 932 (Fla. 4th DCA 2002).

490056. Moreover, deciding if it is, or would be, wrong for

4911Respondent to keep the monitary value of all collections from

4921Petitioner's cash assistance benefits from June 2005 through

4929September 2008, is not properly before this tribunal.

4937Specifically, jurisdiction of this proceeding was invoked

4944pursuant to Subsection 120.56(2)(a), Florida Statutes. This

4951statute does not empower DOAH to determine or adjudicate whether

4961Respondent's offsetting and keeping cash assistance benefit to

4969repay the outstanding cash assistance overpayment debt owed by

4978and established against Jevon Evans' mother is wrong.

4986Therefore, this aspect of the claim or contention is not

4996properly before this tribunal. Claims of this nature can and

5006must be adjudicated before the Department of Children and

5015Families pursuant to Florida Administrative Code Rule 65-1.056.

5023ORDER

5024Based on the foregoing findings of fact and conclusions of

5034law, it is

5037ORDERED that (1) Petitioner's Motion for Summary Final

5045Order is Denied, (2) Respondent's Motion for Final Summary Order

5055is Granted, and (3) the Petition to Determine Invalidity of

5065Proposed Rule 65A-1.900(2)(a) is dismissed.

5070DONE AND ORDERED this 4th day of November, 2008, in

5080Tallahassee, Leon County, Florida.

5084S

5085DANIEL M. KILBRIDE

5088Administrative Law Judge

5091Division of Administrative Hearings

5095The DeSoto Building

50981230 Apalachee Parkway

5101Tallahassee, Florida 32399-3060

5104(850) 488-9675

5106Fax Filing (850) 921-6847

5110www.doah.state.fl.us

5111Filed with the Clerk of the

5117Division of Administrative Hearings

5121this 4th day of November, 2008.

5127COPIES FURNISHED :

5130Valory Greenfield, Esquire

5133Florida Legal Services, Inc.

51373000 Biscayne Boulevard, Suite 450

5142Miami, Florida 33137

5145Cindy Huddleston, Esquire

5148Florida Legal Services, Inc.

51522425 Torreya Drive

5155Tallahassee, Florida 32303

5158Heather Tagert, Esquire

5161Bay Area Legal Services, Inc.

5166829 West Martin Luther King Boulevard

5172Suite 200

5174Tampa, Florida 33603

5177John J. Copelan, General Counsel

5182Department of Children and

5186Family Services

51881317 Winewood Boulevard

5191Building 2, Room 204

5195Tallahassee, Florida 32399-0700

5198Herschel C. Minnis, Esquire

5202Department of Children and Family Services

52081317 Winewood Boulevard

5211Building 2, Room 204N

5215Tallahassee, Florida 32399-0700

5218Scott Boyd, General Counsel

5222Administrative Procedures Committee, 1100

5226Holland Building, Room 120

5230Tallahassee, Florida 32399

5233NOTICE OF RIGHT TO APPEAL

5238A party who is adversely affected by this Final Order is

5249entitled to judicial review pursuant to Section 120.68, Florida

5258Statutes. Review proceedings are governed by the Florida Rules

5267of Appellate Procedure. Such proceedings are commenced by

5275filing the original Notice of Appeal with the agency Clerk of

5286the Division of Administrative Hearings and a copy, accompanied

5295by filing fees prescribed by law, with the District Court of

5306Appeal, First District, or with the District Court of Appeal in

5317the Appellate District where the party resides. The notice of

5327appeal must be filed within 30 days of rendition of the order to

5340be reviewed.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 11/04/2008
Proceedings: DOAH Final Order
PDF:
Date: 11/04/2008
Proceedings: Summary Final Order. CASE CLOSED.
PDF:
Date: 09/16/2008
Proceedings: Respondent`s Status Report filed.
PDF:
Date: 09/11/2008
Proceedings: Petitioner`s Status Report filed.
PDF:
Date: 06/27/2008
Proceedings: Respondent`s Response to Petitioner`s Second Motion to Consolidate Requesting a Third Related Rule Inalidation(sic) Petition to be Joined with Two Pending Consolidated Cases filed.
PDF:
Date: 06/25/2008
Proceedings: Petitioner`s Second Motion to Consolidate Requesting That a Third Related Rule Invalidation Petition be Joined with Two Pending Consolidated Cases filed.
PDF:
Date: 06/25/2008
Proceedings: Petitioner`s Second Motion to Consolidate Requesting that a Third Related Rule Invalidation Petition be Joined with Two Pending Consolidated Cases filed.
PDF:
Date: 06/23/2008
Proceedings: Petitioner`s Response to Respondent`s Notice filed.
PDF:
Date: 06/23/2008
Proceedings: Petitioner`s Response to Respondent`s Notice filed.
PDF:
Date: 06/18/2008
Proceedings: Respondent`s Notice of Filing Notice of Change/Withdrawal.
Date: 06/17/2008
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 06/10/2008
Proceedings: Respondent`s Response to Petitioner`s Motion to Set Aside Order of Abatement filed.
PDF:
Date: 06/06/2008
Proceedings: Respondent`s Response to Petitioner`s Supplement to Motion for Summary Final Order Finding Proposed Rule Invalid filed.
PDF:
Date: 06/06/2008
Proceedings: Petitioner`s Motion to Set Aside Order of Abatement filed.
PDF:
Date: 06/03/2008
Proceedings: Order Granting Extension of Time (Petitioner`s reponse to Respondent`s Notice of Filing Notice of Change/Withdrawal shall be filed by June 4, 2008).
PDF:
Date: 06/02/2008
Proceedings: Petitioner`s Supplement to Motion for Summary Final Order Finding Proposed Rule Invalid and Memorandum in Support Thereof filed.
PDF:
Date: 06/02/2008
Proceedings: Petitioner`s Supplement to Motion for Final Summary Order (filed in Case No. 08-001577RP).
PDF:
Date: 05/23/2008
Proceedings: Respondent`s Notice of Filing Notice of Change/Withdrawal filed.
PDF:
Date: 05/05/2008
Proceedings: Respondent`s Opposition to Petitioner`s Motion for Summary Final Order filed.
PDF:
Date: 04/24/2008
Proceedings: Order Granting Extension of Time (Response to Petitioner`s Motion for Summary Final Order to be filed by May 5, 2008).
PDF:
Date: 04/23/2008
Proceedings: Respondent`s Motion for Extension of Time by Which to Respond to Petitioner`s Motion for Summary Final Order filed.
PDF:
Date: 04/18/2008
Proceedings: Petitioner`s Motion for Summary Final Order Finding Proposed Rule Invalid and Memorandum in Support Thereof filed.
PDF:
Date: 04/15/2008
Proceedings: Notice of Appearance of Counsel filed.
PDF:
Date: 04/09/2008
Proceedings: Order of Consolidation (DOAH Case Nos. 07-5066RU and 08-1577RP).
PDF:
Date: 03/31/2008
Proceedings: Order of Assignment.
PDF:
Date: 03/28/2008
Proceedings: Motion to Consolidate Related Rule Invalidation Petitions filed.
PDF:
Date: 03/28/2008
Proceedings: Notice of Related Cases and Notice of Filing Motion to Consolidate filed.
PDF:
Date: 03/28/2008
Proceedings: Affidavit of Carrie Johnson filed.
PDF:
Date: 03/28/2008
Proceedings: Petition to Determine Invalidity of Proposed Rule 65A-1.900(2)(a) filed.
PDF:
Date: 03/28/2008
Proceedings: Rule Challenge transmittal letter to Liz Cloud from Claudia Llado copying Scott Boyd and the Agency General Counsel.

Case Information

Judge:
DANIEL M. KILBRIDE
Date Filed:
03/28/2008
Date Assignment:
03/31/2008
Last Docket Entry:
11/04/2008
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Children and Family Services
Suffix:
RP
 

Counsels

Related DOAH Cases(s) (4):

Related Florida Statute(s) (6):

Related Florida Rule(s) (2):