08-003106RP Carrie Johnson, As Lawful Custodian And Next Friend Of Minor Child Jevon Evans vs. Department Of Children And Family Services
 Status: Closed
DOAH Final Order on Tuesday, November 4, 2008.


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Summary: It is not improper to remove a sentence from a proposed rule through use of a Notice of Change. The proposed change is not arbitrary.

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. 08-3106RP

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 the Notice of Change to proposed rule

17065A-1.900(2)(a) of Respondent is an invalid exercise of

178delegated legislative authority, under Subsection 120.56(1)(c),

184Florida Statutes, because the proposed rule is arbitrary and

193capricious and because Respondent has failed to follow

201rulemaking procedure or requirements in attempting to change its

210proposed rule.

212PRELIMINARY STATEMENT

214There are several interrelated cases which commenced when

222Petitioner challenged, as an unadopted agency statement meeting

230the definition of a rule, an unpromulgated policy of

239Respondent's. This policy prohibited payment of pre-

246October 1, 2007, cash assistance withheld from Petitioner Carrie

255Johnson and her grandson Jevon Evens. The Petition to Determine

265Invalidity of Unadopted Rule, dated November 2, 2007, [hereafter

"274First Petition] was assigned DOAH Case No. 07-5066RU. After

283undertaking discovery, Petitioner moved for summary final order

291on February 1, 2008, asking this tribunal to find the unadopted

302policy invalid. Respondent then proposed a rule which

"310address[ed] the agency statement Petitioner contends

316constitutes an unpromulgated rule" and moved, inter alia , to

325abate the case. See Respondent's Motion to Dismiss or

334Alternative Stay/Abate Administrative Proceedings [hereafter

"339Motion to Abate"]. Petitioner did not object to abatement, and

350the unpromulgated rule challenge, Case No. 07-5066RU, was placed

359in abeyance. An Order placing the case in abeyance was entered

370on March 13, 2008.

374After entry of the abatement of Petitioner's First

382Petition, Respondent published a proposed rule amending

38965A-1.900(2)(a) to incorporate the agency statement challenged

396as unpromulgated. Petitioner challenged the validity of the

404substance of the proposed rule as being beyond delegated

413legislative authority. Petition to Determine Invalidity of

420Proposed Rule, filed March 28, 2008, [hereafter "Second

428Petition] was assigned DOAH Case No. 08-1577RU. The

436unpromulgated rule challenge, First Petition, and the proposed

444rule challenge, Second Petition, were consolidated by Order

452dated April 9, 2008.

456Petitioner thereafter moved for summary final order on her

465Second Petition, the proposed rule challenge. Respondent

472responded by stating it would delete the contested sentence that

482allegedly makes the proposed rule an invalid exercise of

491delegated legislative authority. Thereafter, Respondent's

496Notice of Change was published in the Florida Administrative

505Weekly demonstrating that the challenged language providing

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

524recovery prior to October 1, 2007 from individuals who were

534children in the overpaid assistance group . . ." is deleted from

546proposed rule 65A-1.900(2)(a). Based on this chain of events,

555Petitioner moved to set aside its March 13, 2008, Order Placing

566Case 07-5066RU in Abeyance.

570Timely following Respondent's publication of its Notice of

578Change, Petitioner challenged the validity of the Notice of

587Change as being beyond delegated legislative authority.

594Petitioner charges that Respondent materially failed to follow

602rulemaking procedures/requirements and acted arbitrarily and

608capriciously. Petition to Determine Invalidity of Notice

615of Change to Proposed Rule 65A-1.900(2)(a) was filed

623June 25, 2008 (hereafter "Third Petition"), and assigned

632DOAH Case No. 08-3106RP. Petitioner further filed a motion to

642consolidate the Third Petition with the first two challenges.

651Following the filing of the Third Petition, Respondent

659moved for summary disposition of same. After responding to

668same, Petitioner cross-moved for summary final order on her

677Third Petition. On September 9, 2008, Respondent published in

686the Florida Administrative Weekly, a Notice of Proposed Rule

69565A-4.220, which sets out inter alia , Respondent's proposal for

704limiting the application of policy changes in the Temporary Cash

714Assistance (TCA) program, and if, and when, it will notify TCA

725recipients about policy changes that may affect them. A public

735hearing was held on the proposed rule on October 8, 2008.

746Petitioner filed a Petition to Determine Invalidity of

754Proposed Rule 65A-4.220 on October 20, 2008 (Fourth Petition),

763which was assigned DOAH Case No. 08-5227RP. The Fourth Petition

773remains pending.

775FINDINGS OF FACT

778The undisputed material facts are as follows:

7851. Carrie Johnson is the maternal grandmother and

793caretaker of Jevon Kyshan Evens, aged 17, and Willard Cody

803Sanders, aged 15. Ms. Johnson and her grandchildren live at

813806 E. James Street, Tampa, Florida 33603. Ms. Johnson has

823court-ordered custody of both of her grandchildren. During all

832times relevant to these proceedings, Jevon Kyshan Evens was a

842minor child.

8442. Ms. Johnson currently receives a maximum of $637 in

854Supplemental Security Income (hereafter "SSI") subsistence

861disability benefits. She gets governmental housing assistance.

868She also gets TCA for both grandsons to help her care for them.

881For her two grandsons, the most Ms. Johnson is eligible to

892receive in TCA is a grant of $241 each month.

9023. Respondent's records show that, at least as early as

9121992, Jevon lived with Ms. Johnson.

9184. At one time, Jevon went to live with his natural

929mother. However, Jevon moved back in with his grandmother,

938Carrie Johnson.

9405. Respondent charged Jevon's natural mother with an

948overpayment of $2,562 in TCA benefits.

9556. Respondent reduced Petitioner's cash assistance

961benefits as a means to recover the outstanding cash assistance

971overpayment claim established against the mother. The authority

979cited for Respondent's action was Florida Administrative Code

987Rule 65A-1.900, which implements Section 414.41, Florida

994Statutes.

9957. Prior to October 1, 2007, Respondent began to collect

1005Jevon's mother's overpayment by reducing the amount of TCA it

1015gave to Carrie Johnson for Jevon. Respondent recouped at least

1025$369 of Jevon's mother's overpayment from Jevon's temporary

1033assistance between 2005 and the end of 2007. Respondent

1042continued to reduce Ms. Johnson's TCA benefits to recoup Jevon's

1052mother's overpayment until the end of December 2007.

10608. Effective October 1, 2007, however, Respondent changed

1068its cash assistance program's benefit recovery policy based on a

1078different interpretation of Subsection 414.41(1), Florida

1084Statutes. Prior to October 1, 2007, all participants in the

1094cash assistance program at the time an overpayment occurred were

1104identified as a "responsible person" for purposes of repayment

1113of a cash assistance overpayment claim. However, as of

1122October 1, 2007, the meaning of "responsible person" was changed

1132by making "adults" the only group of people who could be

1143responsible for repaying cash assistance overpayment claims.

1150Therefore, it excluded recovery of cash assistance overpayments

1158from minors.

11609. Consistent with the new policy concerning "adults" and

"1169responsible persons," Respondent voluntarily restored cash

1175assistance benefits to currently active cash assistance

1182households that contained a minor child in the assistance group

1192if the household's cash assistance benefits had been reduced to

1202recover repayment of an outstanding overpayment cash assistance

1210claim. The restoration period covered October 1, 2007, through

1219December 31, 2007. Petitioner's household was a benefactor of

1228Respondent's decisions to restore the cash assistance benefits

1236for the months of October and November, 2007.

124410. Although Respondent paid Ms. Johnson supplemental TCA

1252to offset the benefits it recovered in October and November

12622007, Respondent did not return to Jevon or Carrie Johnson any

1273of the money that it kept from Jevon's cash assistance prior to

1285October 1, 2007, in order to recoup his mother's overpayment.

129511. Carrie Johnson is substantially affected by the

1303Proposed Rule and, thus, has standing in this challenge.

131212. On December 14, 2007, Respondent published Notice of

1321Development of Rulemaking with the stated purpose of

"1329align[ing] . . . policies for recovery of overpayment in the

1340public assistance programs."

134313. On March 7, 2008, Respondent published Notice of

1352Proposed Rule stating that "the proposed rule aligns policies

1361for recovery of overpayment in the public assistance

1369programs. . . . The proposed rule amends language about who is

1381responsible for repayment of overpayment of public assistance

1389benefits."

139014. The operative date of October 1, 2007, was set forth

1401in the second sentence of the proposed rule 65A-1.900(2)(a)

1410("Cash assistance benefits will not be paid to offset recovery

1421prior to October 1, 2007, from individuals who were children in

1432the overpaid assistance group").

143715. Petitioner alleged that the operative date of

1445October 1, 2007, was arbitrary and capricious.

145216. Proposed rule 65A-1.900(2)(a), as published on

1459March 7, 2008, reads, in its pertinent parts, as follows:

1469* * *

1472(2) Persons Responsible for Repayment of

1478Overpayment.

1479(a) Persons who received AFDC and cash

1486assistance overpayments as an adult shall

1492be responsible for repayment of the

1498overpayment . . . . Cash assistance benefits

1506will not be paid to offset recovery prior to

1515October 1, 2007 from individuals who were

1522children in the overpaid assistance group.

1528* * *

1531(e) For the purpose of this rule, an adult

1540is defined as :

15441. Eighteen (18) years of age or older ,

15522. A teen parent receiving assistance for

1559themselves as an adult ,

15633. An emancipated minor, or

15684. An individual who has become married

1575even if the marriage ended in divorce.

1582(Underlining in original)

158517. The summary section of the proposed rule states that

1595it ". . . amends language about who is responsible for repayment

1607of overpayment of public assistance benefits. . . ." The

1617purpose and effect of the proposed rule making is the alignment

1628of policies for recovery of overpayment in the public assistance

1638program.

163918. Subsection 414.41(1), Florida Statutes, reads, in its

1647pertinent parts, as follows:

1651414.41. Recovery of payments made due to

1658mistake or fraud. --

1662(1) Whenever it becomes apparent that any

1669person . . . has received any public

1677assistance under this chapter to which she

1684or he is not entitled, through either simple

1692mistake or fraud on the part of the

1700department or on the part of the recipient

1708or participant, the department shall take

1714all necessary steps to recover the

1720overpayment. Recovery may include Federal

1725Income Tax Refund Offset Program collections

1731activities in conjunction with Food and

1737Consumer Service and the Internal Revenue

1743Service to intercept income tax refunds due

1750to clients who owe food stamp or WAGES debt

1759to the state. The department will follow

1766the guidelines in accordance with federal

1772rules and regulations and consistent with

1778the Food Stamp Program. The department may

1785make appropriate settlements and shall

1790establish a policy and cost-effective rules

1796to be used in the computation and recovery

1804of such overpayments.

1807(Emphasis added.)

180919. Following the filing of Petitioner's Motion for

1817Summary Final Order on the Second Petition, Respondent moved to

1827delete the contested sentence Petitioner objected to.

1834Thereafter, Respondent's Notice of Change was published in the

1843Florida Administrative Weekly striking the sentence which read:

"1851. . . [c]ash assistance benefits will not be paid to offset

1863recovery prior to October 1, 2007, from individuals who were

1873children in the overpaid assistance group. . . ."

188220. Following publication of the Notice of Change, the

1891Third Petition was filed, in which Petitioner seeks a

1900determination that the Notice of Change, the scheduled public

1909hearing, and Respondent's intent to change the language of

1918proposed rule 65A-1.900(2)(a), Florida Administrative Code, as

1925originally published in the Florida Administrative Weekly, by

1933deleting a sentence constitute an invalid exercise of delegated

1942legislative authority. See § 120.52(8)(a), Fla. Stat. (2007)

195021. At no time at any public hearing on proposed rule

196165A-1.900(2)(a) was testimony given suggesting that the sentence

1969challenged by Petitioner in proposed rule 65A-1.900(2)(a) should

1977be placed in a rule other than Rule 65A-1.900.

198622. Respondent did not receive any written material or

1995objections from the Joint Administrative Procedures Committee

2002(JAPC) advising Respondent that the challenged sentence should

2010be moved from Rule 65A-1.900.

201523. When Respondent submitted documents to JAPC concerning

2023a Notice of Change to Proposed Rule 65A-1.900, no reason for the

2035change was included in these documents. JAPC wrote to

2044Respondent and asked the agency to explain the reason for the

2055Notice of Change. Respondent has not responded to JAPC's

2064request for an explanation of the reason for the Notice of

2075Change.

207624. There is no written record of JAPC instructing

2085Respondent to hold a public hearing to discuss the Notice of

2096Change.

209725. Respondent published a Notice of Rule Development to

2106amend Florida Administrative Code Rule 65A-4.220. The draft

2114text of the proposed rule was published and a public hearing was

2126held on October 8, 2008. Following the public hearing, a

2136Petition to Determine the Invalidity of Proposed Rule 65A-4.220

2145was filed October 20, 2008 (hereafter "Fourth Petition"), and

2155assigned DOAH Case No. 08-5227RP.

2160CONCLUSIONS OF LAW

2163Jurisdiction

216426. The Division of Administrative Hearings has

2171jurisdiction over the parties and the subject matter of this

2181proceeding pursuant to Section 120.56, Florida Statutes (2007).

218927. Petitioner is an individual whose substantial

2196interests will be affected by the proposed rule, and has

2206standing to bring this rule challenge.

2212Burden of Proof

221528. Initially, Petitioner "shall state with particularity

2222the objections to the proposed rule and the reasons that the

2233proposed rule is an invalid exercise of delegated legislative

2242authority." § 120.56(2)(a), Fla. Stat (2007). Then, the

2250Respondent "has the burden to prove by a preponderance of the

2261evidence that the proposed rule is not an invalid exercise of

2272delegated legislative authority as to the objections raised."

2280Id. ; see also Southwest Florida Water Management District v.

2289Charlotte County , 774 So. 2d 903, 908 (Fla. 2nd DCA 2001)

2300("Nothing in Subsection 120.56(2) requires the agency to carry

2310the burden of presenting evidence to disprove an objection

2319alleged in a petition challenging a proposed rule. Instead a

2329party challenging a proposed rule has the burden of establishing

2339a factual basis for the objections to the rule, and then the

2351agency has the ultimate burden of persuasion to show that the

2362proposed rule is a valid exercise of delegated legislative

2371authority."), citing St. Johns River Water Management District

2380v. Consolidated-Tomoka Land Co. , 717 So. 2d 72, 76 (Fla. 1st

2391DCA 1998). The court in Consolidated-Tomoka Land Co. , declined

2400to require the agency to go forward with evidence to disprove

2411every objection made in the petition. Consolidated-Tomoka

2418Land Co. , 717 So. 2d at 76. Instead, the court adopted a

2430practical approach that requires the party challenging the

2438proposed rule to establish a factual basis for the objections

2448put forth in the petition. Id. at 77.

245629. A rule may not be declared invalid on any ground other

2468than whether the rule is an invalid exercise of delegated

2478legislative authority without impermissibly extending the

2484authority of the Administrative Law Judge (ALJ). See Schiffman

2493v. Department of Professional Regulation, Board of Pharmacy , 581

2502So. 2d 1375, 1379 (Fla. 1st DCA 1991)("An administrative agency

2513has only the authority that the legislature has conferred on it

2524by statute.") Thus, a proposed rule may not be invalidated

2535simply because the ALJ believes it is not the wisest or best

2547choice. See Bd. of Trustees of Internal Improvement Fund v.

2557Levy , 656 So. 2d 1359, 1364 (Fla. 1st DCA 1995)("The issue

2569before the [ALJ] in this [rule challenge] case was not whether

2580the Trustees made the best choice . . . or whether their choice

2593is one that the appellee finds desirable . . . ."); Dravo Basic

2607Materials Co., Inc. v. Department of Transportation , 602 So. 2d

2617632, 634 (Fla. 2nd DCA 1992)("It is not our task, however, to

2630write the best rule for DOT. That was not the task of the

2643[ALJ].").

2645Statutory Construction

264730. Legislative intent is the polestar that guides a

2656court's statutory construction analysis. Reynolds v. State ,

2663842 So. 2d 46, 49 (Fla. 2002). In determining the Legislature's

2674intent in using a particular word in a statute, the courts may

2686examine other uses of the word in similar contexts. Hankey v.

2697Yarian , 755 So. 2d 93, 96 (Fla. 2000).

270531. Statutory phrases are not to be read in isolation, but

2716rather within the context of the entire section. Jones v. ETS

2727of New Orleans, Inc. , 793 So. 2d 912, 915 (Fla. 2001). The

2739legislative use of different terms in different sections is

2748strong evidence that different meanings were intended.

2755Department of Professional Regulation, Board of Medical

2762Examiners v. Durrani , 455 So. 2d 515, 518 (Fla. 1st DCA 1984).

277432. When the Legislature enacts a statute, it is presumed

2784to know existing statutes and the case law construing them.

2794Williams v. Christian , 335 So. 2d 358, 360 (Fla. 1st DCA 1976).

280633. The statutory construction principle in pari materia

2814requires two statutes relating to the same thing or subject to

2825be construed together "so as to harmonize both statutes and give

2836effect to the Legislature's intent." Maggio v. Florida

2844Department of Labor and Employment , 899 So. 2d 1074, 1078

2854(Fla. 2005).

285634. Legislative intent can be discerned by reading the

2865statute as a whole. See , e.g. , Young v. Progressive

2874Southeastern Ins. Co. , 753 So. 2d 80 (Fla. 2000); Acosta v.

2885Richter , 671 So. 2d 149 (Fla. 1996); and Klonis v. Department of

2897Revenue , 766 So. 2d 1186 (Fla. 1st DCA 2000). Legislative

2907history concerning Subsection 414.41(1), Florida Statutes, can

2914also be used to discern legislative intent. See Department of

2924Insurance v. Insurance Services Offices , 434 So. 2d 908, 911

2934(Fla. 1st

2936DCA 1983).

293835. It is widely recognized that "[a]gencies are to be

2948accorded wide discretion in the exercise of their lawful

2957rulemaking-authority, clearly conferred or fairly implied and

2964consistent with the agency's general statutory duties."

2971Department of Natural Resources v. Wingfield Development

2978Company , 581 So. 2d 193, 197 (Fla. 1st DCA 1991).

298836. Respondent is to be "accord[ed] great deference to

2997administrative interpretations of statutes which the . . .

3006agency is required to enforce." Department of Environmental

3014Regulation v. Goldring , 477 So. 2d 532, 534 (Fla. 1985).

302437. "[T]he agency's interpretation of a statute need not

3033be the sole possible interpretation or even the most desirable

3043one; it need only be within the range of possible

3053interpretations." Durrani, supra at 517. See Board of

3061Podiatric Medicine v. Florida Medical Association , 779 So. 2d

3070658, 660 (Fla. 1st DCA 2001) (upholding agency's definition

"3079[i]n light of the broad discretion and deference which is

3089accorded an agency in the interpretation of a statute which it

3100administers, and because such an interpretation should be upheld

3109when it is within the range of permissible interpretations[.]").

311938. The ALJ has the discretion to declare the proposed

3129rule wholly or partly invalid. § 120.56(2)(b), Fla. Stat.

3138(2007).

313939. Petitioner contends that when the Legislature amended

3147Subsection 414.41(1), Florida Statutes, it intended to prohibit

3155or preclude Respondent from reducing her cash assistance

3163benefits to repay the overpayment claim established against

3171Jevon Evens' mother. Petitioner contends that when the

3179Legislature amended Subsection 414.41(1), Florida Statutes, it

3186also intended to incorporate by reference Title 7 Code of

3196Federal Regulations subpart 273.17, Restoration of lost

3203benefits. Subpart 273.17 is the basis for Petitioner's claim of

3213entitlement to restored cash assistance benefits prior to

3221October 1, 2007. In the Third Petition, it is alleged that

3232Respondent cannot remove the offensive sentence through a Notice

3241of Change because Respondent now seeks to place that sentence in

3252a completely different rule [see Fourth Petition].

325940. However, Respondent must effect its intended change to

3268proposed rule 65A-1.900(2)(a) through a notice of change because

3277the intended change is not merely technical. Respondent has

3286adequate discretion to schedule a public hearing on its intended

3296change. And, scheduling a public hearing on Respondent's

3304intended change of proposed rule 65A-1.900(2) does not impair

3313Petitioner's substantial interest in the rulemaking proceedings

3320concerning proposed rule 65A-1.900(2)(a). Scheduling a public

3327hearing on the intended change of proposed rule 65A-1.900(2)

3336also does not impair Petitioner's substantial interest in the

3345rulemaking proceedings concerning proposed rule 65A-1.900(2)(a).

3351Scheduling a public hearing on the intended change of proposed

3361rule 65A-1.900(2) also does not impair the fairness of the

3371rulemaking proceedings.

337341. Subsection 120.54(3)(d), Florida Statutes, provides in

3380its pertinent part:

3383(d) Modification or withdrawal of proposed

3389rules. --

33911. After the final public hearing on the

3399proposed rule, or after the time for

3406requesting a hearing has expired, if the

3413rule has not been changed from the rule as

3422previously filed with the committee, or

3428contains only technical changes, the

3433adopting agency shall file a notice to that

3441effect with the committee at least 7 days

3449prior to filing the rule for adoption. Any

3457change, other than a technical change that

3464does not affect the substance of the rule,

3472must be supported by the record of public

3480hearings held on the rule, must be in

3488response to written material received on or

3495before the date of the final public hearing,

3503or must be in response to a proposed

3511objection by the committee. In addition,

3517when any change is made in a proposed rule ,

3526other than a technical change, the adopting

3533agency shall provide a copy of a notice of

3542change by certified mail or actual delivery

3549to any person who requests it in writing no

3558later than 21 days after the notice required

3566in paragraph (a). The agency shall file the

3574notice of change with the committee, along

3581with the reasons for the change, and provide

3589the notice of change to persons requesting

3596it, at least 21 days prior to filing the

3605rule for adoption. The notice of change

3612shall be published in the Florida

3618Administrative Weekly at least 21 days prior

3625to filing the rule for adoption. This

3632subparagraph does not apply to emergency

3638rules adopted pursuant to subsection (4).

364442. Subsection 120.54(3)(d)1., Florida Statutes, requires

3650non-technical changes like the one intended for proposed rule

365965A-1.900(2) in the case sub judice to be implemented using a

3670notice of change. It is also clear that the notice of change

3682must be published in the Florida Administrative Weekly.

3690Respondent has satisfied the requirements of Subsection

3697120.54(3)(d)1.

369843. Subsection 120.54(3)(c), Florida Statutes, in

3704pertinent part states:

3707* * *

3710(c) Hearings. --

37131. If the intended action concerns any rule

3721other than one relating exclusively to

3727procedure or practice, the agency shall, on

3734the request of any affected person received

3741within 21 days after the date of publication

3749of the notice of intended agency action,

3756give affected persons an opportunity to

3762present evidence and argument on all issues

3769under consideration. The agency may

3774schedule a public hearing on the rule and,

3782if requested by any affected person, shall

3789schedule a public hearing on the rule. . . .

3799(Emphasis added.)

380144. Subsection 120.53(3)(c), Florida Statutes, gives

3807Respondent discretion to schedule a public hearing on its

3816intended change of proposed rule 65A-1.900(2). Moreover,

3823scheduling a public hearing on the intended change of proposed

3833rule 65A-1.900(2)(a) is not contrary to public policy as it

3843relates to rulemaking procedures. Furthermore, a public hearing

3851affords the general public, including Petitioner, the

3858opportunity to review the intended change and to present

3867evidence and argument on all pertinent issues prior to

3876finalizing proposed rule 65A-1.900(2)(a) for adoption. This is

3884the overall purpose of the procedures required by Section

3893120.54, Florida Statutes.

389645. In addition, Subsection 120.56(1)(c), Florida

3902Statutes, provides, in pertinent part:

3907* * *

3910(c) . . . The failure of an agency to

3920follow the applicable rulemaking procedures

3925or requirement set forth in this chapter

3932shall be presumed to be material; however,

3939the agency may rebut this presumption by

3946showing that the substantial interests of

3952the petition and the fairness of the

3959proceedings have not been impaired.

396446. In the case sub judice , Respondent intends to remove a

3975sentence from the proposed rule. Petitioner was not precluded

3984from fully participating in the scheduled public hearing.

3992Petitioner could have offered additional evidence and argument

4000on the intended change to proposed rule 65A-1.900(2)(a) at the

4010public hearing. Consequently, with full rights of participation

4018in the scheduled public hearings intact, Petitioner's

4025substantial interests were not impaired at the public hearing

4034scheduled on the change to proposed rule 65A-1.900(2)(a).

4042Similarly, scheduling the public hearing did not impair the

4051fairness of the rulemaking procedures or either Petitioner's

4059ability to continue to litigate any of her pending

4068administrative rulemaking challenges filed, to date.

4074Specifically, DOAH is not divested of subject-matter

4081jurisdiction solely because Respondent schedules a public

4088hearing on its intended change to proposed rule 65A-1.900(2)(a).

409747. Therefore, under the governing law, any deviation by

4106Respondent in the rulemaking procedures or requirements set

4114forth in Section 120.54, Florida Statutes, concerning or

4122governing the scheduling of public hearings was not a material

4132deviation in this case.

413648. Petitioner interprets Subsection 120.54(3)(d)1.,

4141Florida Statutes, as only authorizing a non-technical notice of

4150change to a propose rule under limited and specific

4159circumstances, i.e., (a) supported by the record of the public

4169hearing on the proposed rule; (b) in response to written

4179materials received on or before the date of the final public

4190hearing; or (c) in response to a proposed objection by the JAPC.

4202If none of those limitations exist, the Administrative Procedure

4211Act (APA) limits rulemaking through a notice of change.

422049. However, in applying this section of the statute to

4230the case sub judice , the sentence that Respondent seeks to

4240remove from the proposed rule is the very sentence for which

4251Petitioner has filed two of her prior rule challenges (DOAH Case

4262No. 07-5066RU and 08-1577RP). These two rule challenges, and

4271this case as well, clearly qualify as a "response to written

4282materials received . . . before the date of the final public

4294hearing, . . .". § 120.54(3)(d)1., Fla. Stat. Therefore,

4304Petitioner's contention that Respondent failed to follow

4311Subsection 120.54(3)(d), Florida Statutes, is incorrect. The

4318use of the Notice of Change to remove language from the proposed

4330rule is not improper, and is not an invalid exercise of

4341delegated legislative authority. Department of Health and

4348Rehabilitative Services v. Florida Medical Center , 578 So.

43562d 351, 354 (Fla. 1st DCA 1991).

4363ORDER

4364Based on the foregoing findings of fact and conclusions of

4374law, it is

4377ORDERED that (1) Petitioner's Motion for Summary Final

4385Order is Denied, (2) Respondent's Motion for Final Summary Order

4395is Granted, and (3) the Petition to Determine Invalidity of

4405Proposed Rule 65A-1.900(2)(a) is dismissed.

4410DONE AND ORDERED this 4th day of November, 2008, in

4420Tallahassee, Leon County, Florida.

4424S

4425DANIEL M. KILBRIDE

4428Administrative Law Judge

4431Division of Administrative Hearings

4435The DeSoto Building

44381230 Apalachee Parkway

4441Tallahassee, Florida 32399-3060

4444(850) 488-9675

4446Fax Filing (850) 921-6847

4450www.doah.state.fl.us

4451Filed with the Clerk of the

4457Division of Administrative Hearings

4461this 4th day of November, 2008.

4467COPIES FURNISHED :

4470Valory Greenfield, Esquire

4473Florida Legal Services, Inc.

44773000 Biscayne Boulevard, Suite 450

4482Miami, Florida 33137

4485Cindy Huddleston, Esquire

4488Florida Legal Services, Inc.

44922425 Torreya Drive

4495Tallahassee, Florida 32303

4498Heather Tager, Esquire

4501Bay Area Legal Services, Inc.

4506829 West Martin Luther King Boulevard

4512Suite 200

4514Tampa, Florida 33603

4517John J. Copelan, General Counsel

4522Department of Children and

4526Family Services

45281317 Winewood Boulevard

4531Building 2, Room 204

4535Tallahassee, Florida 32399-0700

4538Herschel C. Minnis, Esquire

4542Department of Children and Family Services

45481317 Winewood Boulevard

4551Building 2, Room 204N

4555Tallahassee, Florida 32399-0700

4558Scott Boyd, General Counsel

4562Administrative Procedures Committee, 1100

4566Holland Building, Room 120

4570Tallahassee, Florida 32399

4573NOTICE OF RIGHT TO APPEAL

4578A party who is adversely affected by this Final Order is

4589entitled to judicial review pursuant to Section 120.68, Florida

4598Statutes. Review proceedings are governed by the Florida Rules

4607of Appellate Procedure. Such proceedings are commenced by

4615filing the original Notice of Appeal with the agency Clerk of

4626the Division of Administrative Hearings and a copy, accompanied

4635by filing fees prescribed by law, with the District Court of

4646Appeal, First District, or with the District Court of Appeal in

4657the Appellate District where the party resides. The notice of

4667appeal must be filed within 30 days of rendition of the order to

4680be 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: 08/08/2008
Proceedings: Respondent`s Opposition to Petitioner`s Motion for Summary Final Order filed.
PDF:
Date: 07/30/2008
Proceedings: Petitioner`s Motion for Summary Final Order Finding Respondent`s Notice of Change to Proposed Rule 65A-1.900(2)(a) to be Invalid and Memorandum in Support Thereof filed.
PDF:
Date: 07/22/2008
Proceedings: Petitioner`s Response to Respondent`s Motion for Summary Disposition filed.
PDF:
Date: 07/15/2008
Proceedings: Respondent`s Motion for Summary Disposition filed.
PDF:
Date: 07/08/2008
Proceedings: Notice of Appearance of Counsel (Herschel Minnis) filed.
PDF:
Date: 06/27/2008
Proceedings: Order of Assignment.
PDF:
Date: 06/26/2008
Proceedings: Rule Challenge transmittal letter to Liz Cloud from Claudia Llado copying Scott Boyd and the Agency General Counsel.
PDF:
Date: 06/25/2008
Proceedings: Notice of Three Related Cases and Notice of Filing Second Motion to Consolidate (07-5066RU, 08-1577RP, and 08-3106RP) filed.
PDF:
Date: 06/25/2008
Proceedings: Petition to Determine Invalidity of Notice of Change to Proposed Rule 64A-1.900(2)(a) filed.

Case Information

Judge:
DANIEL M. KILBRIDE
Date Filed:
06/25/2008
Date Assignment:
06/27/2008
Last Docket Entry:
11/04/2008
Location:
Orlando, Florida
District:
Middle
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):