07-000689RX Miguel Mora Rodriguez, By And Through His Best Friend And Guardian Maria Melendez vs. Department Of Health Status: Closed DOAH Final Order on Thursday, May 24, 2007.

Summary: Respondent modified and enlarged S. 381.76(1)(b) in R. 64I-1.0001(1)(c) in its definition of "legal resident of the state" to include "lawful and permanent residence in the United States of America," and is an invalid exercise of legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIGUEL MORA RODRIGUEZ, BY AND )

THROUGH HIS BEST FRIEND AND )

GUARDIAN MARIA MELENDEZ, )

)

Petitioner,

)

vs. ) Case No. 07 - 0 689RX

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

_________________________________)

FINAL ORDER

Pu rsuant to notice, a formal hearing was held in this case

on March 8, 2007, by video teleconference, with the parties

appearing in Miami, Florida, before Patricia M. Hart, a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings , who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: JoNel Newman, Esquire

Sarah O'Dea, Certified Legal Intern

Aracely Alicea - Clark, Certified Legal

Intern

Community Health Rights Education Clinic

1311 Miller Drive, Room G - 288

Post Office Box 248087

Coral Gables, Florida 33124 - 8087

For Respondent: Michael A. Greif, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

STATEMENT OF THE ISSUE

Whether Florida Administrative Code Rule 64I - 1.001(1)(c) is

an invalid exercise o f delegated legislative authority.

PRELIMINARY STATEMENT

On February 12, 2007, Miguel Mora Rodriguez, by and through

his best friend and guardian Maria Melendez, filed a Petition to

Determine Invalidity of Existing Rule Disqualifying Current

Florida Reside nts from Being Considered for Services Under the

Brain and Spinal Cord Injury Program pursuant to

Section 120.56(1) and (3), Florida Statutes (2006), 1 in which he

asserted that the definition of "legal resident" in Florida

Administrative Code Rule 64I - 1.00 1(1)(c), for purposes of

eligibility for participation in Florida's Brain and Spinal Cord

Injuries ("BSCI") Program, constituted an invalid exercise of

delegated legislative authority pursuant to Section 120.52(8),

Florida Statutes. Mr. Rodriguez alleged in the petition that he

was substantially affected by Florida Administrative Code

Rule 64I - 1.001(1)(c), which includes in the definition of "legal

resident" the requirement that an applicant have "a lawful

permanent presence in the United States of America ," and that

the rule is an invalid exercise of delegated legislative

authority under Section 120.52(8), Florida Statutes, because the

Department of Health ("Department") materially failed to follow

proper rulemaking procedures; because the rule modifies an d

contravenes the statute implemented; and because the rule is

arbitrary and capricious. Pursuant to notice, the final hearing

was held on March 8, 2007.

The parties filed a Joint Pre - Hearing Stipulation in which

they stipulated to most of the material fa cts. At the hearing,

the parties jointly presented the testimony of Marilyn Larrieu,

and Petitioner's Exhibits A and B were offered and received into

evidence. In the Joint Pre - Hearing Stipulation, the parties

noted that they disagreed about whether Mr. Rodriguez had

standing to pursue this rule challenge, and, at the commencement

of the hearing, the Department made an ore tenus motion to

dismiss the petition for lack of standing. Brief argument was

heard from Mr. Rodriguez and the Department. Ruling on the

motion was withheld until entry of the final order in this case,

and the parties were requested to file written argument on the

issue of standing.

The transcript of the proceeding was filed with the

Division of Administrative Hearings on March 26, 200 7. On

April 4, 2007, the Department filed a Motion to Deny Petition

Due to Lack of Standing. The parties timely filed proposed

findings of fact and conclusions of law in which they addressed

the standing issue, and Mr. Rodriguez filed a separate

memorand um of law in opposition to the motion, which have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

fol lowing findings of fact are made:

Stipulated facts

1. Mr. Rodriguez suffered a brain injury as a result o f an

automobile accident.

2. Mr. Rodriguez is currently residing in Florida and

presently intends to remain in Florida as his permanent home.

3. Mr . Rodriguez is currently an undocumented immigrant

with no federally - recognized immigration status.

4. On or about May 2004, Mr. Rodriguez's legal

representative applied for BSCI program services for

Mr. Rodriguez, who was then denied on the basis that he was not

a legal Florida resident.

5. The Department shared all notices regarding rulemaking

for the rule with Mr. Rodriguez's legal representatives

throughout the original rulemaking process.

6. There were no requests for workshops or hearings on the

ru le.

7. The BSCI Manual instructs the case manager to determine

legal residency to initiate the eligibility process.

8. The BSCI program is wholly funded by the State of

Florida from state revenue sources, including appropriations, a

percentage of civil p enalties received by county courts,

recovery of third - party payments for medical services, and

gifts. See § 381.79, Fla. Stat.

Facts established at hearing

9. The BSCI program provides rehabilitation services, such

as in - patient rehabilitation services, out - patient

rehabilitation services, day treatment programs, medical

equipment, and home modifications, for eligible persons who have

sustained traumatic brain or spinal cord injuries. The BSCI

program provides funding as a last resort for services an

in jured person needs to integrate into the community.

10 . Every person who has suffered a moderate - to - severe

brain or spinal cord injury in Florida is referred to the BSCI

program's central registry.

11 . The BSCI program manual requires the case manager to

determine legal residency in this state as the first step in

determining eligibility for BSCI program services. When there

is a question regarding Florida residency, the manual instructs

the case manager to request proof of legal Florida residency,

which , when there is a question regarding legal immigration

status, must consist of a permanent resident alien card or a

letter or document from the United States Immigration Department

granting parolee or other status that would allow the person to

remain inde finitely or permanently in the United States.

12 . The BSCI program has limited financial resources, but

the Department has not established an order of selection for

eligible persons in order to deal with a funding shortage, as

permitted by Section 381.76( 2), Florida Statutes.

Rule, statutory authority, and statue implemented

13 . The BSCI program, found in Sections 381.739 through

381.79, Florida Statutes, was created by the Legislature

expressly

to ensure the referral of individuals who

have moderate - to - severe brain or spinal cord

injuries to the brain and spinal cord injury

program, a coordinated rehabilitation

program administered by the department. The

program shall provide eligible persons, as

defined in s. 381.76, the opportunity to

obtain the neces sary rehabilitative services

enabling them to be referred to a vocational

rehabilitation program or to return to an

appropriate level of functioning in their

community. Further, it is intended that

permanent disability be avoided, whenever

possible, throu gh prevention, early

identification, emergency medical services

and transport, and proper medical and

rehabilitative treatment.

§ 381.7395, Fla. Stat.

14 . The Department is the state agency responsible for

implementing and administering the BSCI program . § 381.75, Fla.

Stat.

15 . The eligibility criteria for the BSCI program are set

forth in Section 381.76, Florida Statutes, as follows:

(1) An individual shall be accepted as

eligible for the brain and spinal cord

injury program following certification by

the department that the individual:

(a) Has been referred to the central

registry pursuant to s. 381.74;

(b) Is a legal resident of this state at

the time of application for services;

(c) Has sustained a brain or spinal cord

injury;

(d) Is medic ally stable; and

(e) Is reasonably expected to achieve

reintegration into the community through

services provided by the brain and spinal

cord injury program.

Section 381.76(2), Florida Statutes, further provides that,

"[i]f the department is unable to provide services to all

eligible individuals, the department may establish an order of

selection."

16 . Pursuant to Section 381.011(13), Florida Statutes, the

Department has the authority to "[a]dopt rules pursuant to

ss. 120.56(1) and 120.54 to implement the provisions of law

conferring duties upon it. This subsection does not authorize

the department to require a permit or license unless such

requirement is specifically provided by law."

17 . In 2005, the Department adopted Florida Administrative

Code Ru le 64I - 1.001(1)(c). Rule 64I - 1.001(1)(c) added a

definition of "legal resident" to a list of definitions of terms

used in Sections 381.739 - .79, Florida Statutes, consistent with

the definitions included in Section 381.745, Florida Statutes.

Rule 64I - 1.00 1(1)(c) defines "legal resident" as follows: "A

person who currently lives in Florida, has the present intent to

remain in Florida indefinitely, and has lawful permanent

presence in the United States of America."

18 . As part of the rulemaking procedure, the Department

published in the Florida Administrative Weekly a notice of its

intent to adopt Rule 64I - 1.001(1)(c) containing the information

required by Section 120.54(3)(a)(1), Florida Statutes. In the

notice, the Department identified Section 381.011, Florida

Statutes, as the specific authority for the rule and

Section 381.76, Florida Statutes, as the law implemented.

19 . The Department also sent the notice to the

Administrative Procedures committee, together with a document

that provided as follows:

S TATEMENT OF FACTS AND CIRCUMSTANCES

The proposed rule implements statutory

provisions of Chapter 381, Florida Statutes.

SUMMARY

Defining the term "Legal Resident" as used

in section 381.76, Florida Statutes, for

purposes of eligibility for the Brain and

Spinal Cord Injury Program.

FEDERAL COMPARISON STATEMENT

There are no federal rules that conflict

with these rules.

20 . As noted above, the Department sent all notices

related to the adoption of Rule 64I - 1.001(1)(c) to

Mr. Rodriguez's legal represent ative.

CONCLUSIONS OF LAW

21 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

Standing

22 . Section 120.56(1)(a) , Florida Statutes, provides that

"[a]ny person substantially affected by a rule or a proposed

rule may seek an administrative determination of the invalidity

of the rule on the ground that the rule is an invalid exercise

of delegated legislative authority .

23 . The Department has taken the position that

Mr. Rodriguez does not have standing to maintain this rule

challenge because, regardless of the requirement in Rule 64I -

1.001(1)(c) that a legal resident of Florida have lawful

permanent residence in the Un ited States, Mr. Rodriguez could

not receive benefits under Florida's BSCI program.

24 . The Department bases its argument on Title 8,

Section 1621, United States Code, which provides in pertinent

part that aliens who do not fit into three enumerated categ ories

are "not eligible for any State or local public benefi t (as

defined in subsection (c)) . " This statute includes exceptions

to state and local benefits that are covered by the prohibition;

the benefits that are included in the prohibition are defined in

the statute; and states may provide for the eligibility of

aliens included in the prohibition "only through the enactment

of a State law . . . which affirmatively provides for such

eligibility." 8 U.S.C. § 1621(d).

25 . The Department's reasoning is th at, as an

undocumented, illegal immigrant, Mr. Rodriguez could not receive

BSCI program benefits under federal law in any event and that,

therefore, his eligibility to receive benefits is not

substantially affected by Rule 64I - 1.001(1)(c). The Department

did not, however, cite any definitive statutory or legal

authority holding that the prohibition in Title 8, Section 1621,

United States Code, applies to BSCI program benefits. In the

absence of such a definitive interpretation of the scope of

Title 8, Sec tion 1621, United States Code, it cannot be

concluded that Mr. Rodriguez would be ineligible to receive BSCI

program benefits by this federal law. For this reason, the

Department's argument fails.

26 . Under Florida law, a person is "substantially

affecte d" by a rule if he or she shows "(1) that the rule or

policy will result in a real and immediate injury in fact, and

(2) that the alleged interest is within the zone of interest to

be protected or regulated. See Jacoby v. Florida Board of

Medicine , 917 So . 2d 358, 360 (Fla. 1st DCA 2005), citing

Florida Bd. of Medicine v. Florida Acad. of Cosmetic Surgery,

Inc. , 808 So. 2d 243 (Fla. 1st DCA 2002).

27 . Mr. Rodriguez has suffered a real and immediate injury

because, even though he had an abode in Florida at the time of

his application for BSCI program benefits and intends to remain

in Florida permanently, he was been denied BSCI program benefits

because he is an undocumented immigrant. Mr. Rodriguez's

interest in obtaining BSCI program benefits is within th e zone

of interest to be protected by the BSCI program because he

suffered a brain injury and is, therefore, a person whose

interests the BSCI program is designed to serve.

28 . Accordingly, it is concluded that Mr. Rodriguez has

standing to challenge in v alidity of Rule 64I - 1.001(1)(c), and

the Department's Motion to Deny Petition Due to Lack of Standing

is denied.

Challenge to validity of Rule 64I - 1.001(1)(c)

29 . In his petition, Mr. Rodriguez has challenged

Rule 64I - 1.001(1)(c) as an invalid exercise o f delegated

legislative authority on three grounds set forth in

Section 120.52(8), Florida Statutes:

"Invalid exercise of delegated legislative

authority" means action which goes beyond

the powers, functions, and duties delegated

by the Legislative. A pro posed or existing

rule is an invalid exercise of delegated

legislative authority if any one of the

following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

* * *

( c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a)1.;

* * *

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the ne cessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational. [ 2 ]

30 . Because Mr. Rodriguez is challenging an existing rule,

he has the burden of proving by a preponderance of the evidence

that the rule constitutes an in valid exercise of delegated

legislative authority. § 120.56(3)(a), Fla. Stat.

A. Material failure to follow rulemaking procedures .

31 . Section 120.54, Florida Statutes, sets forth the

rulemaking procedures that must be followed by all agencies.

Adoptio n procedures are set forth in Section 120.54(3), Florida

Statutes, and include the requirement that notice of proposed

rules be published in the Florida Administrative Weekly and

provided to certain specified persons and that the notice

contain information . § 120.54(3)(a) 1. - 3., Fla. Stat.

32 . Mr. Rodriguez contends that the Department failed to

follow the procedures set forth in 120.54(a)4., Florida

Statutes, which provides that

[t]he adopting agency shall file with the

[Administrative Procedures] commit tee, at

least 21 days prior to the proposed adoption

date, a copy of each rule it proposes to

adopt; a detailed written statement of the

facts and circumstances justifying the

proposed rule; a copy of any statement of

estimated regulatory costs that has be en

prepared pursuant to s. 120.54; a statement

of the extent to which the proposed rule

relates to federal standards or rules on the

same subject; and the notice required by

subparagraph 1.

33 . Mr. Rodriguez argues that the Department's failure to

includ e in its statement to the Administrative Procedures

Committee any justification for Rule 64I - 1.001(1)(c) and the

Department's failure to cite to Title 8, Section 1621, United

States Code, as a federal statute on the same subject

constituted material deviat ions from the rulemaking procedures

set forth in Section 120.54(3)(a)4., Florida Statutes, which

render Rule 64I - 1.001(1)(c) an invalid exercise of delegated

legislative authority pursuant to Section 120.52(8)(a), Florida

Statutes.

34 . Any deviation from the procedures set forth in

Section 120.54(3), Florida Statutes, is "presumed to be

material," although "the agency may rebut this presumption by

showing that the substantial interests of the petitioner and the

fairness of the proceedings have not been im p aired."

§ 120.56(1)(c), Fla. Stat.

35 . Mr. Rodriguez relies on the presumption of materiality

in arguing that Rule 64I - 1.001(1)(c) should be declared invalid.

Although it is the Department's burden to rebut the presumption

of materiality, it appears fro m the stipulated facts that

Mr. Rodriguez's legal representative received all notices

required by Section 120.54(3)(a), Florida Statutes, and was

given a full and fair opportunity to participate in the

rulemaking proceedings leading to the adoption of Rule 64I -

1.001(1)(c). Under these circumstances, it is concluded that

the presumption of materiality has been rebutted, and

Mr. Rodriguez must prove by a preponderance of the evidence that

the failure of the Department to include the items required in

Section 120.54(3)(a)4., Florida Statutes, constituted a material

failure to follow the statutory rulemaking procedures in

Section 120.54, Florida Statutes.

36 . It is significant in evaluating the materiality of the

deficiencies in the statement the Department pr ovided to the

Administrative Procedures Committee that the statement was

required to be sent only to the Administrative Procedures

Committee for its internal use. 3 Nothing in Section 120.54(3),

Florida Statutes, permits comment by the general public or

in terested parties to the Administrative Procedures Committee

with regard to the statement, nor does it appear that the

public, including Mr. Rodriguez, would have been directly

affected by the contents of the statement. Mr. Rodriguez failed

to submit any e vidence to establish that the Administrative

Procedures Committee expressed any concerns about the rule to

the Department through comments or inquiries, and it must be

assumed that the Administrative Procedures Committee found

nothing deficient in the Depa rtment's statement.

37 . Mr. Rodriguez failed to submit any evidence that the

deficiencies in the statement prejudiced his ability to

participate in the rulemaking process or that any harm to him or

the public resulted from the deficiencies. Mr. Rodriguez has,

therefore, failed to prove by a preponderance of the evidence

that the deficiencies in the statement submitted to the

Administrative Procedures Committee constituted a material

failure to follow the rulemaking procedures set forth in Section

120.54(3 ), Florida Statutes. Cf. Ames v. District Bd. of

Trustees , 908 So. 2d 1142, 1143 (Fla. 1st DCA 2005)(Material

error of procedure or failure to follow procedures as basis for

reversal on appeal under Section 120.68(7)(c), Florida Statutes,

analyzed under h armless error rule).

B. Enlargement, modification, or contravention of

p rovisions of Section 381.76(1)(b ), Florida Statutes.

38 . The specific law implemented by Rule 64I - 1.001(1)(c)

is Section 381.76(1)(b), Florida Statutes, which requires that a

person be a "legal resident" of the State of Florida in order to

be eligible for the BSCI program. Mr. Rodriguez contends that,

by defining "legal resident" as a person who not only currently

resides in Florida with the intention of staying indefinitely

but also "has lawful permanent residence in the United States of

America," Rule 64I - 1.001(1)(c) enlarges and modifies the

definition of "legal resident" in Section 381.76(1)(b), Florida

Statutes.

39 . Neither Mr. Rodriguez nor the Department cited a

statute in whi ch "legal resident" was defined. The only

statutory definition of "legal resident" the undersigned located

appears in Section 1009.21, Florida Statutes, which addresses

the classification of students "as residents or nonresidents for

the purpose of assess ing tuition in community colleges and state

universities." Id. Section 1009.21(1)(c), provides: "A 'LEGAL

resident' or 'resident' is a person who has maintained his or

her residence in this state for the preceding years, has

purchased a home which is oc cupied by him or her as his or her

residence, or has established a domicile in this state pursuant

to s. 222.17." Section 222.17, Florida Statutes, sets forth the

procedures for "manifesting and evidencing domicile in Florida,"

and provides in pertinent p art that domicile may be manifested

and evidenced by a person's filing with the clerk of the circuit

court "a sworn statement showing that he or she resides in and

maintains a place of abode in that county [in Florida] which he

or she recognizes and intend s to maintain as his or her

permanent home." § 222.17(1), Fla. Stat.

40 . It may be assumed that, in using the term "legal

residence" in Section 381.76(b), Florida Statutes, the

Legislature intended it to have the same meaning as in

Section 1009.21(1)(c), Florida Statutes, that is, that legal

residence means current residence in Florida with the intent to

remain in Florida indefinitely . See State v. Hearns , 32 Fla. L.

Weekly S177 (April. 26, 2007)("We have held that where the

Legislature uses the exact sa me words or phrases in two

different statutes, we may assume it intended the same meaning

to apply ."). This conclusion is buttressed by the definition of

"legal residence" consistently used by the courts in Florida.

The meaning of the term "legal residen t" as used in various

statutes has been addressed by several Florida courts, and the

courts have uniformly held that "legal residence" requires only

that a person currently reside in Florida and intend to remain

in Florida permanently. See , e.g. , Perez v. Marti , 770 So. 2d

284, 289 (Fla. 3d DCA 2000)("A legal residence is the place

where a person has a fixed abode with the present intention of

making it their permanent home."); Keveloh v. Carter , 699 So. 2d

285, 288 (Fla. 1st DCA 1997)("A legal residence o r 'domicile' is

the place where a person has fixed an abode with the present

intention of making it his or her permanent home."); Nicholas v.

Nicholas , 444 So. 2d 1118, 1119 - 20 (Fla. 4th DCA 1984)( L aw is

well - settled that term " residence " as used in dissol ution of

marriage statute refers to " legal residence " which " is

synonymous with 'domicile.'" "Domicile" has long been defined

in this state to mean "'a residence at a particular place,

accompanied with positive or presumptive proof of an intention

to rema in there for an unlimited period of tim e.'").

41. In addition, it is clear from the several statutes

that the Legislature distinguishes between citizenship and

immigration status and legal residence in Florida. The

Legislature has used the term "legal re sident" in several

statutes in addition to Section 381.76, Florida Statutes. The

Department of Highway Safety and Motor Vehicles is required to

deliver to the clerk of the circuit court a list of names of

persons who are, among other things, citizens of t he Unites

State and "legal residents of Florida." § 40.011(1), Fla. Stat.

A person is eligible to vote in Florida if, among other things,

that person is a citizen of the United States and a "legal

resident of the State of Florida." § 97.041(1), Fla. Sta t. In

order to be eligible to receive temporary cash assistance a

person "must be a United States citizen, or a qualified

noncitizen, as defined in this section" and "a legal resident of

the state." § 414.095(2), Fla. Stat. A person may be appointed

a n otary public in Florida if, among other things, the person is

"a legal resident of the state"; "a permanent resident alien"

may also be appointed under certain conditions. A person can be

licensed as a private investigator in Florida if, among other

thing s, the person is "a citizen or legal resident alien of the

United States or have been granted authorization to seek

employment in this country by the United States Bureau of

Citizenship and Immigration Services." § 493.6106(1), Fla.

Stat.

42 . The Departm ent has cited no authority to support its

interpretation that "legal resident," as used in

Section 381.76(1)(b), Florida Statutes, incorporates the concept

of immigration status. Although an agency is entitled to

deference when interpreting a statute with in its special area of

expertise, the definition of the term "legal resident" is not

within the Department's area of expertise, and its

interpretation of the meaning of "legal resident" is not

entitled to deference. See Doyle v. Department of Bus. Reg. ,

7 94 So. 2d 686, 690 (Fla. 1st DCA 2001)("[A] court need not

defer to an agency's construction or application of a statute if

special ag ency expertise is not required.").

43 . Based on the above cited authorities, t he Department's

interpretation of "legal re sident" in Rule 64I - 1.001(1)(c) to

include the requirement that one not only must currently reside

in Florida with the present intention to remain in Florida

indefinitely but also that one must have "lawful permanent

residence in the United States of Ameri ca" impermissibly

modifies, enlarges, and contravenes Section 381.76(1)(b),

Florida Statutes. Florida Administrative Code Rule 64I -

1.001(1)(c) is, therefore, an invalid exercise of delegated

legislative authority pursuant to Section 120.52(8)(b), Florida

Statutes. 4

44 . Section 120.595, Florida Statutes , provides in

pertinent part:

(3) CHALLENGES TO EXISTING AGENCY RULES

PURSUANT TO SECTION 120.56 (3). -- If the court

or administrative law judge declares a rule

or portion of a rule invalid pursuant to s.

120 .56 (3), a judgment or order shall be

rendered against the agency for reasonable

costs and reasonable attorney's fees, unless

the agency demonstrates that its actions

were substantially justified or special

circumstances exist which would make the

award unj ust. An agency's actions are

"substantially justified" if there was a

reasonable basis in law and fact at the time

the actions were taken by the agency. If

the agency prevails in the proceedings, the

court or administrative law judge shall

award reasonab le costs and reasonable

attorney's fees against a party if the court

or administrative law judge determines that

a party participated in the proceedings for

an improper purpose as defined by paragraph

(1)(e). No award of attorney's fees as

provided by thi s subsection shall exceed

$15,000 .

45 . Mr. Rodriguez is the prevailing party in this

proceeding brought pursuant to Section 120.56(3), Florida

Statutes, and is, therefore, entitled to an award of reasonable

attorney's fees and costs , not to exceed $15,00 0.00, if the

Department is unable to prove "that its actions were

substantially justified or special circumstances exist which

would make the award unjust." § 120.595(3), Fla. Stat.

Accordingly, jurisdiction is retained so that an evidentiary

hearing may be conducted to determine if Mr. Rodriguez is

entitled to an award reasonable attorney's fees and costs

against the Department and, if so, the amount that should be

awarded.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED :

1. Florida Administrative Code Rule 64I - 1.001(1)(c) is an

invalid exercise of delegated legislative authority because it

modifies and enlarges Section 381.76(1)(b), Florida Statutes, in

violation of Section 120.52(8)(c), Florida Statutes.

2. Ju risdiction is retained to determine whether Miguel

Mora Rodriguez is entitled to an award of attorney's fees and

costs against the Department of Health and, if so, the amount of

attorney's fees and costs to be awarded.

3 . The parties shall file a joint st atus report with the

Division of Administrative Hearings on or before June 14, 2007,

in which they shall provide an estimate of the length of time

necessary to conduct an evidentiary hearing on the entitlement

to and amount of attorney's fees and costs and several dates on

which the parties are available for hearing.

DONE AND ORDERED this 24th day of May , 200 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of May , 200 7 .

ENDNOTES

1 / All references to the Florida Statutes herein shall be to the

2006 edition unless otherwise indicated.

2 / Mr. Rodriguez also argued in his Proposed Final Order that

the Department had no authority to promulgate Rule 64I -

1.001(1)(c). This issue was not raised in the rule - challenge

petition. It is not, therefore, properly raised for the first

time in the Proposed Final Order and will not be addressed

herein.

3 / The Administrative Procedures Committee is given the

authority to submit comments and inquiries to an agency

regarding a proposed rule, and, before the proposed rule can be

adopted, the Administrative Procedures Committee must ce rtify

that the agency has responded in writing to the comments and

inquiries. See § 120.54(3)((e)4., Fla. Stat.

4 / Because the rule has been found invalid pursuant to

Section 120.52(8)(a), Florida Statutes, it is not necessary to

address whether Rule 64 I - 1.001(1)(c) is arbitrary and

capricious.

COPIES FURNISHED:

JoNel Newman, Esquire

Community Health Rights Education Clinic

1311 Miller Dri ve, Room G - 288

Post Office Box 248087

Coral Gables, Florida 33124 - 8087

Michael A. Greif, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

Dr. Ana M. Viamonte Ros, Secretary

Department of Health

4052 Bald Cypre ss Way, Bin A00

Tallahassee, Florida 32399 - 1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Fin al Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency cler k of

the Division of Administrative Hearings and a copy, accompanied

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

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

the Appellate District where the party resides. The notice of

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

be reviewed.