84-002859RP Betty Montgomery And Gussie Williams vs. Department Of Health And Rehabilitative Services Status: Closed DOAH Final Order on Tuesday, November 6, 1984.

Summary: Petitioners failed to show standing to challenge proposed rule--no specific, real and immediate harm to them was demonstrated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY MONTGOMERY and )

GUSSIE WILLIAMS , )

)

Petitioner , )

)

vs. ) CASE NO. 84-2859RP

)

STATE OF FLORIDA, DEPARTMENT OF )

HEALTH AND REHABILITATIVE )

SERVICES , )

)

Respondent. )

_________________________________)

FINAL ORDER

On September 10, 1984, a final hearing was held related to the Petitioners'

challenge to the Proposed Rule 10C-3.60. This hearing was conducted in

Tallahassee, Florida. Charles C. Adams was the Hearing Officer. This final

order is being entered following the receipt and review of proposed final orders

submitted by the parties. The last proposal was filed with the Division of

Administrative Hearings on October 19, 1984. To the extent that the proposals

are consistent with this final order, they have been utilized. Otherwise, they

are rejected as being irrelevant, immaterial, or contrary to facts found.

APPEARANCES

For Petitioners: Melanie Malherbe, Esquire

Greater Orlando Area Legal Services, Inc.

1036 West Amelia Street

Orlando, Florida 32805

Michael A. Campbell, Esquire

Florida Rural Legal Services, Inc.

305 North Jackson Avenue

Post Office Drawer 1499

Bartow, Florida 33830

For Respondent: Harden King, Esquire

Assistant General Counsel

Department of Health and

Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

ISSUES

The issues concern the issue in challenge to Proposed Rule 10C-3.60, based

upon the theory that this proposed rule is an invalid exercise of delegated

legislative authority. It is further alleged that Respondent, State of Florida,

Department of Health and Rehabilitative Services, has acted in an arbitrary,

capricious and unreasonable manner in the promulgation of the subject rule. It

is alleged that the proposed rule illegally conflicts with the Federal Law, 7

CFR, Section 273.22(f)(3). It is alleged that the proposed rule in one of its

sections is in violation of Section 120.54, Florida Statutes, and is

unconstitutional in that it allows the automatic amendment of the rule without

the benefit of rule-making by the agency, based upon future changes that may

occur in the federal law. Finally, it is alleged that the proposed rule

violates Rule 1S-1.005, Florida Administrative Code, by purporting to

incorporate, by reference, materials not filed with the Secretary of State.

FINDINGS OF FACT

1. The Petitioners filed a timely petition challenging the subject rule

published by the State of Florida, Department of Health and Rehabilitative

Services (HRS). The rule was published at 10 FAW 2323, and was numbered as 10C-

3.60, which would be used as the publication number in the Florida

Administrative Code. The publication of the notice of the proposed rule

occurred on July 27, 1984 and the Petitioners submitted their challenge on

August 10, 1984.

2. The proposed rule establishes terms under which food stamp recipients

throughout the state may be required to participate in "workfare programs;"

however, at present, this rule may only be utilized in two counties. This

limitation is based upon the fact that necessary funding for the implementation

of the terms of the rule has only been appropriated for two counties. Funding

is pursuant to the 1984 General Appropriations Act of the State of Florida

Legislature. That funding is pursuant to the proviso within the Appropriations

Act which states:

Of the fund in Specific Appropriations 764,

up to two hundred thousand dollars from the

General Revenue Fund shall be used to continue

or establish workfare projects in two counties

for recipients of food stamps.

3. The workfare program idea as expressed in the subject rule is an

adjunct of the food stamp program, a joint federal-state program authorized by

the Food Stamp Act of 1977, as amended, 7 U.S.C., Section 2011, et. seq. HRS

administers the Florida version of the food stamp program based upon the

authority set forth in Section 409.275, Florida Statutes. The subject rule is

under the claimed authority of Section 409.026 - .028, Florida Statutes.

4. Petitioners are heads of households and would potentially be affected

by the implementation of the workfare program contemplated by the proposed rule.

They are residents of Orange County, Florida who are recipients of food stamps.

The contingency of the implementation of a workfare program in Orange County,

Florida pursuant to the proposed rule has not occurred. HRS has yet to decide

which of the two Florida counties it would accept under the financing envisioned

by the General Appropriations Act. As a consequence, no determination has been

made on the subject of which food stamp recipients will be affected by the terms

of the proposed rule. In making its program choice, HRS provided all of the

chairpersons of the various County Commissions within the State of Florida with

an announcement of the possible availability of funds for the food stamp

workfare program. An example of this notice may be found as the Petitioner's

exhibit No. 10 admitted into evidence. That notice contemplated that the

counties which are interested in participation would express their interest in

writing on or before September 1, 1984, through a letter of intent to

participate in the workfare program. This invitation was dated July 25, 1994.

Orange County did not express an interest in keeping with this opportunity and

is not one of the two counties that will be the recipient of the funds for

administration of the workfare program. The recipients will be chosen from the

counties which submitted a written statement of interest. As a result, at

present, Petitioners will not be required to abide by the terms of the subject

rule. For the Petitioners to be subjected to the rule's terms, additional

funding must be appropriated beyond that available for the two counties

envisioned by the General Appropriations Act, Orange County must opt for

participation in the workfare program and the Petitioners must be residing in

Orange County, when the first two events occur.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties to this action in keeping with Sections 120.54

and 120.57, Florida Statutes.

6. In order to successfully challenge the subject rule, Petitioners must

affirmatively prove their standing. In determining the sufficiency of that

proof, the Petitioners must show that the proposed rule poses specific, real and

immediate harm or injury in fact and that the injury is within the "zone of

interest" contemplated by the proposed rule. See Department of Offender

Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978); Florida Department

of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045 (Fla. 1st DCA

1979), Professional Firefighters of Florida, Inc. v. Department of Health and

Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981); Agrico Chemical Co.

v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2nd DCA 1981);

City of Panama City v. Board of Trustees of the Internal Improvement Trust Fund,

418 So.2d 1132 (Fla. 1st DCA 1982) and Florida Medical Association, Inc. v.

Department of Professional Regulation, 426 So.2d 12 (Fla. 1st DCA 1983). In

this instance, the Petitioners have failed to show that the potential harm to

them that may be occasioned by the enactment of this rule is specific, real, and

immediate or that they are suffering an injury in fact. Only two counties will

be involved in participation at the inception of this rule, and Orange County

will not be one of those counties. Therefore, residents of Orange County, such

as Petitioners, are not subject to a sufficiently immediate impact to be granted

standing to challenge the proposed rule. Any challenge which the Petitioners

may offer to the rule would have to be premised upon Orange County's

participation in the future, at a time that the Petitioners were still residing

in Orange County. That challenge would be pursuant to Section 120.56, Florida

Statutes.

In summary, the Petitioners have failed to demonstrate standing to

challenge the proposed rule, and it is

ORDERED:

The Petitioners' challenge to proposed rule 10C-3.60 is dismissed for lack

of standing.

DONE and ORDERED this 6th day of November, 1984, at Tallahassee, Florida.

___________________________________

CHARLES C. ADAMS, Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of November, 1984.

COPIES FURNISHED:

Melanie Malherbe, Esquire

Greater Orlando Area Legal

Services, Inc.

1036 West Amelia Street

Orlando, Fl. 32505

Michael A. Campbell, Esquire

Florida Rural Legal Services, Inc.

P.O. Drawer 1499

Bartow , Fl. 33830

Harden King, Esquire

Department of Health and

Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Fl. 32301

Liz Cloud, Chief

Bureau of Administrative code

Department of State

The Capitol - Suite 1802

Tallahassee, Fl. 32301

Carroll Webb, Executive Director

Joint Administrative Procedures

Committee

120 Holland Building

Tallahassee, Fl. 32301

David Pingree, Secretary

Department of HRS

1323 Winewood Blvd.

Tallahassee, Fl. 32301