89-004425RP Marina Brasetch And Nola Little vs. Department Of Health And Rehabilitative Services Status: Closed DOAH Final Order on Wednesday, December 13, 1989.

Summary: New rules which in effect delay and reduce payments to Aid For Dependent Children clients are neither arbitrary nor capricious and are within scope of delegated legislative authority

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NOLA LITTLE et al, )

)

Petitioners, )

)

vs. ) CASE NO. 89-4425RP

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

___________________________________)

FINAL ORDER

A hearing was held in this case on September 11, 1989 in Tallahassee,

Florida, before Arnold H. Pollock, Hearing Officer with the Division of

Administrative Services.

APPEARANCES

For the Petitioners: Paulette Ettachild, Esquire

225 N. E. 34th Street, Suite 300

Miami, Florida 33137

Cindy Huddleston, Esquire

345 S. Magnolia Dr., Suite A-27

Tallahassee, Florida 32301

For the Respondent: Ken Muszynski, Esquire

1323 Winewood Boulevard

Tallahassee, Florida 32399-0250

STATEMENT OF THE ISSUES

The issue for consideration is the validity of the Department of Health and

Rehabilitative Services' Proposed Rules 10C-1.080, 10C-1.082, and 10C-1.107,

Florida Administrative Code, as appropriate exercises of delegated legislative

authority.

PRELIMINARY STATEMENT

By Notice published July 21, 1989, the Department of Health and

Rehabilitative Services, (Department), proposed to implement three new rules,

10C-1.080, 10C-1.082, and 10C-1.107. By Petition to determine the invalidity of

these rules, dated August 10, 1989, counsel for the Petitioner, Nola Little, and

the former Petitioner, Marina Brasetch, requested that the proposed rules in

question be declared invalid, and the Petition was forwarded to the Division of

Administrative Hearings for the appointment of a Hearing Officer, received on

August 10, 1989. By Order of Assignment dated August 18, 1989, the Director of

the Division of Administrative Hearings appointed the undersigned to hear the

matter and by Notice of Hearing dated August 21, 1989, the undersigned set the

case for hearing in Tallahassee on September 11, 1989, at which time it was held

as scheduled.

On September 1, 1989, approximately 10 days prior to the convening of the

hearing, Petitioner's counsel filed a Petition to Intervene on behalf of Neftali

Perez, Genioveza Perez, and Raphael Vargas. By Order dated September 6, 1989,

the undersigned granted the Petition to Intervene over objection by Respondent

and at the hearing, indicated his intention to continue with the case regarding

the Intervenors as well as Ms. Little.

At the hearing, Petitioner presented the testimony of Rosemary Gallagher,

an associate with the Florida Catholic Conference; Dr. Frederick W. Bell, an

economist with the Florida State University; and Jennifer Lange, a program

administrator with the Department; and introduced Petitioner's Exhibits 2

through 6 and 12 through 17. Petitioner's Exhibits 1, and 7 through 11 were

marked but not received. Petitioner's Exhibit 18 for identification was filed

by mail after the hearing. Respondent presented the testimony of Harry

Greenwood, an employee of the Department in its economic services division; and

Edward Winstead, Assistant Secretary for Economic Services, and introduced

Respondent's Exhibits A through I and K. Respondent's Exhibits J and L were

marked but not received.

Subsequent to the hearing, a transcript was provided. On November 2, 1989,

Respondent filed a Motion for Order to Show Cause, citing the decision of the

Florida First District Court of Appeals in a petition for review filed by

Petitioner Little challenging the validity of the rules in question, which

opinion, Respondent contends, appears to be dispositive of the issues in the

case. On November 14, 1989, Petitioner Little, filed her response to the motion

and on November 21, 1989, submitted her Proposed Findings of Fact which have

been ruled upon in the Appendix to this Final Order. Respondent's Counsel has

not submitted any proposed Findings of Fact.

While the Petition in this case refers to Rules 10C-1.080, 10C-1.082, and

10C-1.107, the Court's opinion refers to Emergency Rules 10CER 89-3, 89-4, and

89-5. The Court determined the Department had complied with applicable legal

requirements pertinent to the promulgation of emergency rules. In the instant

case, though the rules may be the same in substance, the issue is the substance

of the rules and their conformity with delegated legislative authority rather

than the propriety of the emergency nature of promulgation. Therefore, the

Motion For Order To Show Cause is denied and matter will be resolved on the

basis of the testimony and exhibits presented at hearing and the submittals of

counsel.

At the beginning of the hearing, Counsel for the Department "moved to

strike" both Petitioners for lack of standing in that Petitioner Little had

removed herself from the State of Florida on a permanent basis and is no longer

eligible for the service in issue here. She may, however remain eligible for

one final payment. Ms. Brasetch, on the other hand, has failed to respond to

any discovery prior to the commencement of the hearing though given adequate

opportunity to do so. After argument by both counsel, and the introduction of

testimony relevant to the motion, Petitioner Brasetch was stricken as a

Petitioner and the undersigned ordered that the hearing proceed regarding the

Ms. Little and Intervenors. At the same time, counsel were given 10 days from

the conclusion of the hearing to submit argument on the question of standing as

regard to Ms. Little. Neither side has done so, though counsel for Ms. Little

addressed the subject in her Proposed Findings of Fact and Conclusions of Law.

Issue as to standing was not raised as to Intervenors.

FINDINGS OF FACT

1. The Respondent, Department of Health and Rehabilitative Services is the

state agency charged with the responsibility of monitoring the Aid For Families

with Dependent Children, (AFDC), program in Florida. Petitioner Nola Little and

the Intervenors, are recipients of services under that program and subject to

the terms of the existing and proposed rules.

2. The Department published notice of Proposed Rules 10C-1.080, 10C-1.082,

and 10C-1.107 in Volume 15, Florida Administrative Weekly, at pages 3082-3083,

on July 21, 1989. The rules in question deal with the issue of entitlement to

payment to eligible applicants for AFDC. Rule 10C-1.080(10)(b) has been amended

to change the definition of the date of entitlement to the date of authorization

or the 30th day from the date of application, whichever is earlier. Rule 10C-

1.080(11) has been amended to provide that the first payment to an eligible

applicant must be made for the date of authorization or the 30th day from the

date of application, whichever is earlier, and provides for a prorated payment

based on the date of entitlement. Rule 10C-1.082 has been amended to provide

that grants of applicants will be prorated for the initial month of entitlement.

The increase in grant for the needs of persons added to the grant will be

prorated for the initial month of grant increase. Rule 10C-1.107 has been

amended to provide that the initial month's grant will be prorated from the date

of entitlement. The initial month of grant increase for adding the needs of

individuals to the grants will be prorated from the add date.

3. Thereafter, on August 10, 1989, Petitioner Little filed a petition to

determine the invalidity of the proposed rules alleging that:

a. They violate Section 409.235, Florida

Statutes, which requires the Department

to furnish monthly financial assistance,

and

b. They provide an inadequate statement

of economic impact.

4. At the time she filed her Petition, Nola Little was a pregnant AFDC

applicant residing in Pensacola, Florida. Intervenor Perez and his wife reside

in Miami, Florida with Mrs. Perez' son by a former marriage. Mrs. Perez and her

son were found to be eligible for AFDC. Mr. Perez and his natural children have

not been approved due to pending consideration of Mr. Perez' determination of

incapacity as a result of a back injury. He is, otherwise, eligible for AFDC.

All Petitioners will receive prorated benefits under the proposed rule.

5. Prior to the 1988 legislative session, the Department had been

requested by the President of the Florida Senate to identify programs for a

possible 5% reduction. The date of entitlement for new applicants for AFDC, the

subject matter of one rule in question, was identified as one of those programs.

Though the Governor agreed with the Department's proposal and recommended it,

the Legislature did not adopt that program for cuts in the 1988 session.

6. Again, prior to the 1989 legislative session, the Governor directed

each department to identify programs for possible cuts up to 10% for a total of

$23.9 million. As a part of his directive, he hypothetically identified cuts in

programs to reach that figure. One item so identified was a change in the date

of entitlement to AFDC.

7. After considering various ways to implement the cuts, (4 different

program alternatives), all of which had an unpleasant effect, Mr. Don Winstead,

Assistant Secretary of DHRS for Economic Services, chose the current method of

reduction and recommended it to the Department's Deputy Secretary for

Administration who incorporated it as a part of the entire Department submittal

to the Governor. A 5% cut list was ultimately forwarded to the Governor in

December 1988, which included two of those alternatives on the 10% list. The

instant program cuts were not recommended by the Governor.

8. Mr. Winstead and his staff generated substantial input to the

Legislature, its committees, and its staffers about the subject. Ultimately,

the Legislature, in conference, agreed to certain cuts. Economic Services was

reduced by some $17,476,531.00, including the programs covered by the proposed

rules in question. It was clear to Mr. Winstead that the Legislature mandated

the reduction as proposed. In July 1988, the Department's District Directors

were told to implement the change.

9. In Mr. Winstead's opinion, if the Department had "its druthers," it

would not have made the change. The Department's policies are driven by the

Governor's direction. Since the Governor did not recommend the cut, the

official position of the Department is, and was, against it. In fact, Mr.

Winstead felt it was not a good idea and testified against cuts in committee

hearing. He indicated there that neither he nor the Department supported this

cut or recommended it. Though he did not agree, the lawmakers possessed the

authority to make the change and the cuts were passed by the Legislature and

signed by the Governor. He is, therefore, obliged to implement them.

10. Since the passage of the act which mandates the cuts, Mr. Winstead has

not considered alternatives to direct budget deficit reduction, nor has the

Department applied to the Governor to transfer social and economic program funds

to address budgeting problems with the AFDC budget.

11. Mr. Winstead's position is that the Appropriations Act mandates him to

modify the AFDC grant date and the specific basis therefor is Appropriation

Number 864 which gives general revenue and trust fund amounts which, when

considered with the Legislature's statement of intent, indicates what has to be

done. Admittedly, there is no specific mandate from the Legislature or the

Governor to cut this specific program. However, when the list of possible

program reductions was prepared in an in-house memorandum, the cut in AFDC funds

was identified as #3.

12. Mr. Winstead's position with regard to this cut is supported by

Jennifer Lange, a program administrator with the Department whose unit wrote the

proposed rule. She felt the Department had no option but to promulgate the rule

due to the Legislative mandate. Considering the evidence as a whole, it is

found that a logical conclusion to be drawn from the pronouncements, documents,

and directives coming from the Legislature through the entire appropriations

process, is that drawn by the Department here, to wit: cuts were mandated by

the Legislature in this and other programs and action must be taken to implement

them. The drafting and promulgation of the rule in question is but an

appropriate extension of that conclusion.

13. Assuming the rule is ultimately promulgated and funds are saved

thereby, it is the intention of the Department to continue with the mandate of

the Legislature until that body affirmatively changes its direction, even if

more money is found somewhere else. Under the proposed rule, an applicant would

be issued a check for the first period 30 days after application or after

approval of the application, whichever came first. Since the Department

routinely runs three payrolls a month, it would probably be one third of a month

after the cutoff date that an applicant would receive his or her first check.

14. Ms. Lange also was instrumental in drafting the Economic Impact

Statement (EIS) to accompany the rules, utilizing in doing so, information

garnered from a number of sources. Some figures utilized therein are a

generalized estimate only. The majority of applications are accomplished within

the 30 day period. Ms. Lange is satisfied that in the preparation of the EIS,

all pertinent information required to be considered was considered and nothing

that would materially effect the probity of the EIS was eliminated.

15. The actual EIS was drafted by Mr. Greenwood and his team in late May

or early June 1989. In doing so, Mr. Greenwood did not consider population

additives. While the drafters of the EIS considered the entire subject matter,

including legislative policy, no impacts, other than those ultimately addressed

therein, were considered. The 6,000 case per month figure was used because it

was the information provided by the Department's data unit and as a figure that

was being used elsewhere in the Department. This was not the latest figure

available, however. Current figures available reflected a potential for

slightly in excess of 8,000 cases per month. The difference of over 2,000 cases

per month is substantial. Mr. Greenwood concludes that the maximum which can be

lost to any applicant is 30 days benefit, and the Department presumed, for the

EIS, that all would lose that amount. In reality, that is unlikely.

16. There is no doubt that the implementation of the proposed rule will

have an impact on the economic welfare of those currently receiving AFDC and

those who may receive it in the future. Rosemary Gallagher, an associate with

the Florida Catholic Conference and a lobbyist in the area of social services,

is very familiar with the social service agencies available to the poor in this

state. In her opinion, having studied the proposed rules, almost all agencies

will be adversely affected by their implementation. Clients will require more

agency help as a result of the rule implementation and homeless shelters will be

hit the hardest. The homeless population in Florida is composed of

approximately 1/3 single women with children who need financial assistance to be

self-sufficient. Reduction in AFDC benefits will require the client to stay in

the shelter longer to accumulate rent money and funds for other required

expenditures. By the same token, other organizations will similarly be

affected.

17. In addition, less money will have a devastating effect on the agencies

, and the delay in receipt of payments, occasioned by the proposed change, will,

in her opinion, hurt hundreds of thousands who are affected. This cutback is,

she believes, the worst thing to happen in a long time, and she lobbied against

the basic legislation calling for cutbacks.

18. Ms. Gallagher has never been a case worker and has no degree or course

work in either economics or social work. It is her opinion, however, that the

legislative statement relied on by the Department calls for modification to

AFDC, not necessarily a cut. As a matter of history, she relates, the

Department has been asked for the last several years to list items for cut and

historically has always identified those items it felt certain the Legislature

would never cut. When, in this current year, it listed the currently considered

program, in her opinion, this was done with the belief the Legislature would not

approve any cuts, a position consistent with that indicated by Mr. Winstead, but

cuts were nonetheless made by that body without, she believes, a proper public

hearing.

19. Dr. Frederick Bell, an economist on the faculty of Florida State

University and an expert in economics, micro-economics, and the techniques of

economic impact statement preparation, reviewed the instant EIS along with

depositions and the transcript of public hearing on the matter. He has done

some rudimentary research into the effect of the proposed rules and considered

therewith the spending patterns of low income people in the areas of housing,

clothing, and transportation. He has also looked at small businesses in Florida

and feels that the EIS as drafted does not accurately reflect the situation and

its method of preparation is poor. In his opinion, it is inadequate to show the

effect on the economy since it failed to consider all factors pertinent thereto.

20. He objects to the use of the term "negative cost" as used in the

document, which he does not considers to be a proper economic concept. He

assumes it is another term for savings.

21. He assumes the EIS reference to 6,000 applications which are those

approved per month. Other pertinent documentation, however, refers to a

substantially larger number of applications (8,042) yet neither figure is

sourced, and Dr. Bell is unable to verify their accuracy. The parties

stipulated that in formulating the EIS, the Department utilized figures provided

by the Legislature, but Dr. Bell's complaint regarding his inability to check

their accuracy is still valid.

22. Dr. Bell also questions the average grant amounts and notes that the

Department assumes that the determination of eligibility is always going to be

accomplished within 30 days. In his opinion, this is neither reasonable nor

substantiated. He believes it is a "monumental" error to put into the EIS

entirely different numbers than are actually expected. In the instant case,

this resulted in a difference of $6.4 million which is substantial.

23. With regard to that section of the EIS that starts, "Changing the

effective date of grant increases," on the one hand, it indicates a cost of

increased benefits as a result of adding individuals to the household, and on

the other hand claims a reduced cost resulting from the loss of benefits to

newborns. Dr. Bell professes to be "flabbergasted" by the conclusion drawn in

the EIS that the additional costs to the agency will be balanced out by the

benefits saved. In his opinion, there is absolutely no justification for that

conclusion.

24. He also disputes agency figure of $17.5 million in resultant cuts,

concluding it would actually be more in the area of $23.9 million. As a result,

he believes the impact will be substantially greater to individuals than that

indicated. He also contends the state should have considered the cumulative

effect on the economy of governmental program cuts, otherwise known as the

"multiplier effect." A reduction in amounts spent will have a resultant double

effect on the businesses where this money would normally be spent. There is

nothing shown in the EIS to indicate this factor was considered.

25. Dr. Bell also believes the agency should have considered the effects

of its cutback on the counties and their support agencies as well as the

nongovernmental charities involved in providing assistance to the

underprivileged who will have to pick up the slack resulting from the cut in

public money.

26. He feels the EIS estimate of the cut's minimal effect on small

minority businesses is not supported. It appears to him that the agency failed

to utilize the services of the small and minority business advocate attached to

the Florida Department of Commerce who could have provided input on whether a

cutback in spending would have had a major effect on minority business

enterprises. Dr. Bell is convinced that it will and his opinion is

diametrically opposed to that of the Department. In substance, Dr. Bell was

convinced that the EIS was "completely inadequate."

27. In his cross examination of Dr. Bell, Respondent's counsel indicated

there would be no impact on small and minority business and urges that Dr. Bell

was stretching when he claims there would be. Such argument is ingenuous

however. Regardless of which of the two impact figures cited is used, such a

sum cannot help but have some impact on an economy which includes small

businesses. The degree thereof and whether or not that impact constitutes

grounds to invalidate the rule is another question altogether.

28. Nothing in the statute or the rules relating to the sufficiency of an

EIS requires that there be unanimity of opinion as to the conclusions drawn

therein. Taken as a whole, the evidence appears to show, and it is so found,

that while the EIS may well be subject to some disagreement as to a number of

the provisions therein, and while some provisions may well be contra to the

weight of the best evidence available, it is, nonetheless, basically adequate in

content and form to constitute an acceptable economic impact statement in

support of the proposed rules here.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter in this case. Section 120.56, Florida Statutes.

The Petitioners have the burden in this proceeding since they are challenging

the validity of the Department's proposed rules. Agrico Chemical Company v.

Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert.

den. 376 So.2d 777 (Fla. 1st DCA 1986).

30. The Department is charged with conducting, supervising and

administering all social and economic services within the state to be carried on

by the use of federal or state funds or funds from any other source. The

Department shall determine the benefits each applicant or recipient of

assistance is entitled to receive under the statute. Section 409.026(1),

Florida Statutes.

31. Under the provisions of Section 409.235(1), Florida Statutes, it is

the intent of the Legislature to furnish financial assistance and rehabilitative

and other services to dependent children and to their families who are of a

degree of relationship as specified by the Department. Monthly assistance, in

such amount as determined by the Department, shall be paid to an individual who

is eligible under Section 409.185, Florida Statutes.

32. Section 409.185(4) provides that the Legislature shall set the

standard of need and the payment levels with respect to payments for AFDC in the

General Appropriations Act. Under the provisions of subsection (5) of this

statute, the departmental biennial budget submitted to the Governor shall

include a report on current and projected needs with recommendations regarding

the standard of need. A copy of this report shall be provided to pertinent

committee chairmen in each house of the Legislature, and the statute also

provides, at Section 409.185(5)(c):

[to) the chairman of the

appropriations subcommittee of each house

that has jurisdiction over the budget of

the Department of Health and

Rehabilitative Services for consideration

of setting the standard of need and the

payment levels for aid to families with

dependent children in the appropriations

act.

33. Petitioners claim that the proposed rules in question here,

promulgated under the Department's authority to do so, are invalid in that they

violate Section 409.235, Florida Statutes, which requires the Department to

furnish monthly financial assistance, and they provide an inadequate statement

of economic impact.

34. It is recognized that Section 120.54(15), Florida Statutes, provides

that, "No agency has inherent rulemaking authority...." However, "rulemaking

authority may be implied to the extent necessary to properly implement a statute

governing the agency's statutory duties and responsibilities." Fairfield

Communities v. Florida Land and Water Adjudicatory Commission, 522 So.2d 1012,

1014 (Fla. 1st DCA 1988). Here, the Department promulgated its rules in an

effort to comply with what it considered to be a mandate of the Legislature,

contained in the General Appropriations Act for the current year, to reduce the

amounts spent in certain areas. Admittedly the legislative mandate did not

particularize the instant action of the Department. Instead, the Legislature,

in its appropriation, reduced the amounts available to the Department for

disbursement under the AFDC program and, within the authority of the Department

to promulgate rules for the administration of programs consistent with the

availability of funds provided by the Legislature, chose to promulgate the

instant rules in such a manner that eligible recipients would still receive the

required aid while the Department had an appropriate and not unlimited time in

which to process applications.

35. The intent of the new rules, and the basic thrust of Petitioners'

complaint, is that the eligible applicant now will receive payment upon

approval, but in no case, more than 30 days after application.

36. Petitioners assert this is violative of their rights as outlined under

Section 409.235. Petitioners also claim that since the Legislature did not

specifically direct the cuts to be implemented in that manner chosen by the

Department, and since, they claim, the Department was erroneously relying on

what it considered to be legislative direction to do so, its action was, thereby

arbitrary and capricious and, therefore, invalid. This is simply not so.

37. Section 120.52(8), Florida Statutes, defines and specifies that an

"invalid exercise of delegated legislative authority means action which goes

beyond the powers, functions, and duties delegated (to an agency) by the

Legislature." It further provides that if any one or more of the following

applies, an agency's proposed or existing rule is invalid:

(e) The rule is arbitrary or capricious.

38. In considering any challenge to an agency's rules, it is recognized

that the party asserting the invalidity of such rule has a heavy burden. In

Austin v. Department of Health and Rehabilitative Services, 495 So.2d 777 (Fla.

1st DCA 1986), the Court stated:

...agencies are given wide discretion in

the exercise of their lawful rulemaking

authority. "An agency's construction of

a statute is entitled to great weight and

is not to be overturned unless clearly

erroneous." Department of Professional

Regulation, Board of Medical Examiners v.

Durrani, 455 So.2d 515, 517 (Fla. 1st DCA

1984).

39. Further, in Askew v. Agrico Chemical Co., 376 So.2d 74 (Fla. 1979),

the Court stated that:

...a court must uphold the validity of

a proposed rule if the rule is reasonably

related to the purpose of the enabling

legislation, and is not arbitrary and

capricious. The burden is on one who

attacks a rule to show that the rule

exceeds its statutorily delegated

authority. The person attacking the rule

must show also that the rule is arbitrary

and capricious by a preponderance of the

evidence.

40. Where an agency construes the statute in its charge in a permissible

way, that interpretation must be sustained though another may be possible or

even, in the view of some, preferable. State, Department of Health and

Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 249 (Fla. 1st DCA

1981); Pan American World Airways, Inc. v. Florida Public Service Commission and

Florida Power and Light Company, 427 So.2d 716, 719 (Fla. 1983). The

Petitioners must show that the agency's rule interpreting the statute is clearly

erroneous or unauthorized. ABC Liquors, Inc. v. Department of Business

Regulation, 397 So.2d 696, 697 (Fla. 1st DCA 1981). Administrative Rules should

not be invalidated if they are reasonably related to the purposes of the

enabling statutes, and are not arbitrary or capricious. Grove Isle Ltd. v.

Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984).

41. Clearly, the Florida Legislature, by reducing the appropriation to the

Department, intended that less funds be expended on various programs within the

Department's supervision. By its specific reduction of the area in which AFDC

is contained, the Legislature indicated its intention that changes be made in

the implementation of the program and its application even if specific

directions were not given to the Department as to how to implement these changes

and savings.

42. In Agrico Chemical Co. v Department of Environmental Regulation, 365

So.2d 759, 763 (Fla. 1st DCA 1978), the terms, "arbitrary" and "capricious" were

defined as follows:

A capricious action is one which is taken

without thought or reason or

irrationally. An arbitrary action is one

not supported by facts or logic, or

despotic.

43. Here, the proposed rules at issue are neither arbitrary nor

capricious. The record establishes that the rule was the well reasoned response

of the agency to the basic guidelines and directives given by the Legislature

and contra to the claim of the Petitioners, the Department's analysis of the

thrust of those directions was not erroneous.

44. The second thrust of Petitioners' attack on the rule making process

here is its claim that the economic impact statement accompanying the proposed

rules is deficient.

45. Review of the EIS in this case resulted in a finding herein that while

the EIS may be subject to different opinion and while different conclusions

might be drawn as to its sufficiency, it was, nonetheless, considered to be

adequate to support the proposed action herein.

46. The preparation of an EIS, "is a procedural aspect of an agency's

rulemaking authority." Florida-Texas Freight, Inc. v. Hawkins, 379 So.2d 944,

946 (Fla. 1979). As such, it is subject to the "statutory harmless error rule"

of Section 120.68(8), Florida Statutes. Department of Health and Rehabilitative

Services v. Wright, and Department of Health and Rehabilitative Services v.

Mitchell, 439 So.2d 937 (Fla. 1st DCA 1983).

47. In the instant case, even assuming, arguendo, that the EIS contained

some inaccuracies, there has been no showing that these inaccuracies either

harmed the Department's decision making process or adversely affected its

decision. In fact, the alleged economic impact described by both Dr. Bell and

Ms. Gallagher was not supported by any hard figures but was more their opinion

of the types of activities which would be adversely affected.

48. The requirements of Section 120.54(2), Florida Statutes, do not oblige

the Hearing Officer to reverse a Department decision solely on the basis that

the attendant EIS appears to be facially deficient. To do so would tend to

exalt form over substance. See Florida-Texas Freight v. Hawkins, supra. Here,

it is arguable that the Department's EIS was less than thorough. However, if

the proceedings are not rendered unfair thereby, or if the action is not found

to be incorrect, then minimal deficiencies in an EIS will not constitute

reversible error. Plantation Residents' Association v. School Board, 424 So.2d

879 (Fla. 1st DCA 1982), rehearing denied January 26, 1983.

49. There is no evidence in the record of this proceeding which would

indicate that the EIS was fatally flawed and resulted in an improper

promulgation of unnecessary rules. The Department is subject to the funding

directives of the Legislature and, as a branch of the Executive Department, is

subject also to the guidance of the Governor. Here, Petitioners have failed to

satisfy their burden to show that the proposed regulation is an invalid exercise

of delegated legislative authority and the proposed rules are neither arbitrary

or capricious, nor do they violate Petitioners' rights under Section 490.235,

Florida Statutes.

Based upon the foregoing, it is, therefore

ORDERED THAT the Petition filed herein seeking a determination of the

invalidity of Proposed Rules 10C-1.080, 10C- 1.082, and 10C-1.107 is DISMISSED

and the relief sought therein, DENIED.

DONE and ORDERED in Tallahassee, Florida this 13th day of December, 1989.

___________________________________

ARNOLD H. POLLOCK, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of December, 1989.

APPENDIX TO FINAL ORDER

IN CASE NO. 89-4425R

The following constitutes my specific rulings pursuant to Section

120.59(2), Florida Statutes, on all of the Findings of Fact submitted by the

parties to this case.

FOR THE PETITIONER:

1-3. Accepted and incorporated herein.

4-9. Accepted and incorporated in part herein.

10-14. Accepted and incorporated in part herein.

15-17. Accepted and incorporated herein.

18. Accepted as interpreted to mean a recommendation for specific action.

19-21. Accepted and incorporated herein.

22-25. Accepted in so far as representing that the Legislature did not mandate

the specific cut.

26-28. Accepted.

29-31. Accepted and incorporated herein.

32. Accepted but not proven.

33-35. Alleged by Petitioners but not proven. However, it is assumed that the

implementation of the rules will have some undefined, temporary impact on

recipients.

36-38. Accepted and incorporated herein.

39-42. Accepted and incorporated herein, but recognizing that the dollar value

in question is spread over in excess of 8,000 people.

43. The drafter used information provided which was not the most current

information available.

44-46. Accepted.

47. Accepted as to error; rejected as to gross nature thereof.

48. Accepted and incorporated herein.

49. Rejected if interpreted to indicate a loss of total benefits. Partial

benefits may be lost.

50-53. Accepted.

54 & 55. Accepted.

56. Accepted.

57 & 58. Accepted in that neither is mentioned therein.

59. Accepted except for the term, "enormous."

60 & 61. Accepted as reported.

62. Accepted except for the term, "devastating."

63 & 64. Accepted.

65-69. Accepted.

70. Not proven.

71. Accepted.

72-75. Accepted.

76-83. Not present.

84-86. Accepted.

COPIES FURNISHED:

Paulette Ettachild, Esquire

225 Northeast 34th Street, Suite 300

Miami, Florida 33137

Cindy Huddleston, Esquire

2121 Delta Way

Tallahassee, Florida 32303

Ken Muszynski, Esquire

DHRS

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Gregory Coler

Secretary

Department of Health and

Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

John Miller, Esquire

General Counsel

DHRS

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Sam Power

Agency Clerk

Department of Health and

Rehabilitative Services

1323 Winewood Blvd.

Tallahasse, Florida 32399-0700

Liz Cloud, Chief

Bureau of Administration Code

Room 1802, The Capitol

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director

Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300