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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARRIE JOHNSON, AS LAWFUL )

CUSTODIAN AND NEXT FRIEND OF )

MINOR CHILD, JEVON EVENS, )

)

Petitioners, )

)

vs. ) Case Nos. 08-3106RP

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

SUMMARY FINAL ORDER

A formal administrative hearing was unnecessary in this

case before the Division of Administrative Hearings, by

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

is decided on Cross Motions for Summary Final Order.

APPEARANCES

For Petitioner: Cindy Huddleston, Esquire

Vileta Combs, Esquire

Florida Legal Services, Inc.

2425 Torreya Drive

Tallahassee, Florida 32303

Valory Greenfield, Esquire

Florida Legal Services, Inc.

3000 Biscayne Boulevard, Suite 450

Miami, Florida 33137

Heather Tagert, Esquire

Bay Area Legal Services, Inc.

829 W. Martin Luther King Boulevard

Suite 200

Tampa, Florida 33603

For Respondent: Herschel C. Minnis, Esquire

Department of Children and Family Services

1317 Winewood Boulevard

Building. 2, Room 204B

Tallahassee, Florida 32399-0700

STATEMENT OF THE ISSUES

Whether the Notice of Change to proposed rule

65A-1.900(2)(a) of Respondent is an invalid exercise of

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

Florida Statutes, because the proposed rule is arbitrary and

capricious and because Respondent has failed to follow

rulemaking procedure or requirements in attempting to change its

proposed rule.

PRELIMINARY STATEMENT

There are several interrelated cases which commenced when

Petitioner challenged, as an unadopted agency statement meeting

the definition of a rule, an unpromulgated policy of

Respondent's. This policy prohibited payment of pre-

October 1, 2007, cash assistance withheld from Petitioner Carrie

Johnson and her grandson Jevon Evens. The Petition to Determine

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

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

undertaking discovery, Petitioner moved for summary final order

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

policy invalid. Respondent then proposed a rule which

"address[ed] the agency statement Petitioner contends

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

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

Alternative Stay/Abate Administrative Proceedings [hereafter

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

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

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

on March 13, 2008.

After entry of the abatement of Petitioner's First

Petition, Respondent published a proposed rule amending

65A-1.900(2)(a) to incorporate the agency statement challenged

as unpromulgated. Petitioner challenged the validity of the

substance of the proposed rule as being beyond delegated

legislative authority. Petition to Determine Invalidity of

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

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

unpromulgated rule challenge, First Petition, and the proposed

rule challenge, Second Petition, were consolidated by Order

dated April 9, 2008.

Petitioner thereafter moved for summary final order on her

Second Petition, the proposed rule challenge. Respondent

responded by stating it would delete the contested sentence that

allegedly makes the proposed rule an invalid exercise of

delegated legislative authority. Thereafter, Respondent's

Notice of Change was published in the Florida Administrative

Weekly demonstrating that the challenged language providing

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

recovery prior to October 1, 2007 from individuals who were

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

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

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

Case 07-5066RU in Abeyance.

Timely following Respondent's publication of its Notice of

Change, Petitioner challenged the validity of the Notice of

Change as being beyond delegated legislative authority.

Petitioner charges that Respondent materially failed to follow

rulemaking procedures/requirements and acted arbitrarily and

capriciously. Petition to Determine Invalidity of Notice

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

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

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

consolidate the Third Petition with the first two challenges.

Following the filing of the Third Petition, Respondent

moved for summary disposition of same. After responding to

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

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

the Florida Administrative Weekly, a Notice of Proposed Rule

65A-4.220, which sets out inter alia , Respondent's proposal for

limiting the application of policy changes in the Temporary Cash

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

recipients about policy changes that may affect them. A public

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

Petitioner filed a Petition to Determine Invalidity of

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

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

remains pending.

FINDINGS OF FACT

The undisputed material facts are as follows:

1. Carrie Johnson is the maternal grandmother and

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

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

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

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

times relevant to these proceedings, Jevon Kyshan Evens was a

minor child.

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

Supplemental Security Income (hereafter "SSI") subsistence

disability benefits. She gets governmental housing assistance.

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

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

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

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

1992, Jevon lived with Ms. Johnson.

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

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

Carrie Johnson.

5. Respondent charged Jevon's natural mother with an

overpayment of $2,562 in TCA benefits.

6. Respondent reduced Petitioner's cash assistance

benefits as a means to recover the outstanding cash assistance

overpayment claim established against the mother. The authority

cited for Respondent's action was Florida Administrative Code

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

Statutes.

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

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

gave to Carrie Johnson for Jevon. Respondent recouped at least

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

assistance between 2005 and the end of 2007. Respondent

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

mother's overpayment until the end of December 2007.

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

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

different interpretation of Subsection 414.41(1), Florida

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

cash assistance program at the time an overpayment occurred were

identified as a "responsible person" for purposes of repayment

of a cash assistance overpayment claim. However, as of

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

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

responsible for repaying cash assistance overpayment claims.

Therefore, it excluded recovery of cash assistance overpayments

from minors.

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

"responsible persons," Respondent voluntarily restored cash

assistance benefits to currently active cash assistance

households that contained a minor child in the assistance group

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

recover repayment of an outstanding overpayment cash assistance

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

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

Respondent's decisions to restore the cash assistance benefits

for the months of October and November, 2007.

10. Although Respondent paid Ms. Johnson supplemental TCA

to offset the benefits it recovered in October and November

2007, Respondent did not return to Jevon or Carrie Johnson any

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

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

11. Carrie Johnson is substantially affected by the

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

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

Development of Rulemaking with the stated purpose of

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

public assistance programs."

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

Proposed Rule stating that "the proposed rule aligns policies

for recovery of overpayment in the public assistance

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

responsible for repayment of overpayment of public assistance

benefits."

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

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

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

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

the overpaid assistance group").

15. Petitioner alleged that the operative date of

October 1, 2007, was arbitrary and capricious.

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

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

* * *

(2) Persons Responsible for Repayment of

Overpayment.

(a) Persons who received AFDC and cash

assistance overpayments as an adult shall

be responsible for repayment of the

overpayment . . . . Cash assistance benefits

will not be paid to offset recovery prior to

October 1, 2007 from individuals who were

children in the overpaid assistance group.

* * *

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

is defined as :

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

2. A teen parent receiving assistance for

themselves as an adult ,

3. An emancipated minor, or

4. An individual who has become married

even if the marriage ended in divorce.

(Underlining in original)

17. The summary section of the proposed rule states that

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

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

purpose and effect of the proposed rule making is the alignment

of policies for recovery of overpayment in the public assistance

program.

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

pertinent parts, as follows:

414.41. Recovery of payments made due to

mistake or fraud. --

(1) Whenever it becomes apparent that any

person . . . has received any public

assistance under this chapter to which she

or he is not entitled, through either simple

mistake or fraud on the part of the

department or on the part of the recipient

or participant, the department shall take

all necessary steps to recover the

overpayment. Recovery may include Federal

Income Tax Refund Offset Program collections

activities in conjunction with Food and

Consumer Service and the Internal Revenue

Service to intercept income tax refunds due

to clients who owe food stamp or WAGES debt

to the state. The department will follow

the guidelines in accordance with federal

rules and regulations and consistent with

the Food Stamp Program. The department may

make appropriate settlements and shall

establish a policy and cost-effective rules

to be used in the computation and recovery

of such overpayments.

(Emphasis added.)

19. Following the filing of Petitioner's Motion for

Summary Final Order on the Second Petition, Respondent moved to

delete the contested sentence Petitioner objected to.

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

Florida Administrative Weekly striking the sentence which read:

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

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

children in the overpaid assistance group. . . ."

20. Following publication of the Notice of Change, the

Third Petition was filed, in which Petitioner seeks a

determination that the Notice of Change, the scheduled public

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

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

originally published in the Florida Administrative Weekly, by

deleting a sentence constitute an invalid exercise of delegated

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

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

65A-1.900(2)(a) was testimony given suggesting that the sentence

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

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

22. Respondent did not receive any written material or

objections from the Joint Administrative Procedures Committee

(JAPC) advising Respondent that the challenged sentence should

be moved from Rule 65A-1.900.

23. When Respondent submitted documents to JAPC concerning

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

change was included in these documents. JAPC wrote to

Respondent and asked the agency to explain the reason for the

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

request for an explanation of the reason for the Notice of

Change.

24. There is no written record of JAPC instructing

Respondent to hold a public hearing to discuss the Notice of

Change.

25. Respondent published a Notice of Rule Development to

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

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

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

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

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

assigned DOAH Case No. 08-5227RP.

CONCLUSIONS OF LAW

Jurisdiction

26. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

27. Petitioner is an individual whose substantial

interests will be affected by the proposed rule, and has

standing to bring this rule challenge.

Burden of Proof

28. Initially, Petitioner "shall state with particularity

the objections to the proposed rule and the reasons that the

proposed rule is an invalid exercise of delegated legislative

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

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

evidence that the proposed rule is not an invalid exercise of

delegated legislative authority as to the objections raised."

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

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

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

the burden of presenting evidence to disprove an objection

alleged in a petition challenging a proposed rule. Instead a

party challenging a proposed rule has the burden of establishing

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

agency has the ultimate burden of persuasion to show that the

proposed rule is a valid exercise of delegated legislative

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

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

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

to require the agency to go forward with evidence to disprove

every objection made in the petition. Consolidated-Tomoka

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

practical approach that requires the party challenging the

proposed rule to establish a factual basis for the objections

put forth in the petition. Id. at 77.

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

than whether the rule is an invalid exercise of delegated

legislative authority without impermissibly extending the

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

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

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

has only the authority that the legislature has conferred on it

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

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

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

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

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

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

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

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

632, 634 (Fla. 2nd DCA 1992)("It is not our task, however, to

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

[ALJ].").

Statutory Construction

30. Legislative intent is the polestar that guides a

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

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

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

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

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

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

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

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

legislative use of different terms in different sections is

strong evidence that different meanings were intended.

Department of Professional Regulation, Board of Medical

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

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

to know existing statutes and the case law construing them.

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

33. The statutory construction principle in pari materia

requires two statutes relating to the same thing or subject to

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

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

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

(Fla. 2005).

34. Legislative intent can be discerned by reading the

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

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

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

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

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

also be used to discern legislative intent. See Department of

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

(Fla. 1st

DCA 1983).

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

accorded wide discretion in the exercise of their lawful

rulemaking-authority, clearly conferred or fairly implied and

consistent with the agency's general statutory duties."

Department of Natural Resources v. Wingfield Development

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

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

administrative interpretations of statutes which the . . .

agency is required to enforce." Department of Environmental

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

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

be the sole possible interpretation or even the most desirable

one; it need only be within the range of possible

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

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

658, 660 (Fla. 1st DCA 2001) (upholding agency's definition

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

accorded an agency in the interpretation of a statute which it

administers, and because such an interpretation should be upheld

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

38. The ALJ has the discretion to declare the proposed

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

(2007).

39. Petitioner contends that when the Legislature amended

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

or preclude Respondent from reducing her cash assistance

benefits to repay the overpayment claim established against

Jevon Evens' mother. Petitioner contends that when the

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

also intended to incorporate by reference Title 7 Code of

Federal Regulations subpart 273.17, Restoration of lost

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

entitlement to restored cash assistance benefits prior to

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

Respondent cannot remove the offensive sentence through a Notice

of Change because Respondent now seeks to place that sentence in

a completely different rule [see Fourth Petition].

40. However, Respondent must effect its intended change to

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

the intended change is not merely technical. Respondent has

adequate discretion to schedule a public hearing on its intended

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

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

Petitioner's substantial interest in the rulemaking proceedings

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

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

also does not impair Petitioner's substantial interest in the

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

Scheduling a public hearing on the intended change of proposed

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

rulemaking proceedings.

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

its pertinent part:

(d) Modification or withdrawal of proposed

rules. --

1. After the final public hearing on the

proposed rule, or after the time for

requesting a hearing has expired, if the

rule has not been changed from the rule as

previously filed with the committee, or

contains only technical changes, the

adopting agency shall file a notice to that

effect with the committee at least 7 days

prior to filing the rule for adoption. Any

change, other than a technical change that

does not affect the substance of the rule,

must be supported by the record of public

hearings held on the rule, must be in

response to written material received on or

before the date of the final public hearing,

or must be in response to a proposed

objection by the committee. In addition,

when any change is made in a proposed rule ,

other than a technical change, the adopting

agency shall provide a copy of a notice of

change by certified mail or actual delivery

to any person who requests it in writing no

later than 21 days after the notice required

in paragraph (a). The agency shall file the

notice of change with the committee, along

with the reasons for the change, and provide

the notice of change to persons requesting

it, at least 21 days prior to filing the

rule for adoption. The notice of change

shall be published in the Florida

Administrative Weekly at least 21 days prior

to filing the rule for adoption. This

subparagraph does not apply to emergency

rules adopted pursuant to subsection (4).

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

non-technical changes like the one intended for proposed rule

65A-1.900(2) in the case sub judice to be implemented using a

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

must be published in the Florida Administrative Weekly.

Respondent has satisfied the requirements of Subsection

120.54(3)(d)1.

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

pertinent part states:

* * *

(c) Hearings. --

1. If the intended action concerns any rule

other than one relating exclusively to

procedure or practice, the agency shall, on

the request of any affected person received

within 21 days after the date of publication

of the notice of intended agency action,

give affected persons an opportunity to

present evidence and argument on all issues

under consideration. The agency may

schedule a public hearing on the rule and,

if requested by any affected person, shall

schedule a public hearing on the rule. . . .

(Emphasis added.)

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

Respondent discretion to schedule a public hearing on its

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

scheduling a public hearing on the intended change of proposed

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

relates to rulemaking procedures. Furthermore, a public hearing

affords the general public, including Petitioner, the

opportunity to review the intended change and to present

evidence and argument on all pertinent issues prior to

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

the overall purpose of the procedures required by Section

120.54, Florida Statutes.

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

Statutes, provides, in pertinent part:

* * *

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

follow the applicable rulemaking procedures

or requirement set forth in this chapter

shall be presumed to be material; however,

the agency may rebut this presumption by

showing that the substantial interests of

the petition and the fairness of the

proceedings have not been impaired.

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

sentence from the proposed rule. Petitioner was not precluded

from fully participating in the scheduled public hearing.

Petitioner could have offered additional evidence and argument

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

public hearing. Consequently, with full rights of participation

in the scheduled public hearings intact, Petitioner's

substantial interests were not impaired at the public hearing

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

Similarly, scheduling the public hearing did not impair the

fairness of the rulemaking procedures or either Petitioner's

ability to continue to litigate any of her pending

administrative rulemaking challenges filed, to date.

Specifically, DOAH is not divested of subject-matter

jurisdiction solely because Respondent schedules a public

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

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

Respondent in the rulemaking procedures or requirements set

forth in Section 120.54, Florida Statutes, concerning or

governing the scheduling of public hearings was not a material

deviation in this case.

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

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

change to a propose rule under limited and specific

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

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

materials received on or before the date of the final public

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

If none of those limitations exist, the Administrative Procedure

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

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

the case sub judice , the sentence that Respondent seeks to

remove from the proposed rule is the very sentence for which

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

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

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

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

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

Petitioner's contention that Respondent failed to follow

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

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

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

delegated legislative authority. Department of Health and

Rehabilitative Services v. Florida Medical Center , 578 So.

2d 351, 354 (Fla. 1st DCA 1991).

ORDER

Based on the foregoing findings of fact and conclusions of

law, it is

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

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

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

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

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

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of November, 2008.

COPIES FURNISHED :

Valory Greenfield, Esquire

Florida Legal Services, Inc.

3000 Biscayne Boulevard, Suite 450

Miami, Florida 33137

Cindy Huddleston, Esquire

Florida Legal Services, Inc.

2425 Torreya Drive

Tallahassee, Florida 32303

Heather Tager, Esquire

Bay Area Legal Services, Inc.

829 West Martin Luther King Boulevard

Suite 200

Tampa, Florida 33603

John J. Copelan, General Counsel

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

Herschel C. Minnis, Esquire

Department of Children and Family Services

1317 Winewood Boulevard

Building 2, Room 204N

Tallahassee, Florida 32399-0700

Scott Boyd, General Counsel

Administrative Procedures Committee, 1100

Holland Building, Room 120

Tallahassee, Florida 32399

NOTICE OF RIGHT TO APPEAL

A party who is adversely affected by this Final 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 Clerk 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.