89-004425RP
Marina Brasetch And Nola Little vs.
Department Of Health And Rehabilitative Services
Status: Closed
DOAH Final Order on Wednesday, December 13, 1989.
DOAH Final Order on Wednesday, December 13, 1989.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8NOLA LITTLE et al, )
13)
14Petitioners, )
16)
17vs. ) CASE NO. 89-4425RP
22)
23DEPARTMENT OF HEALTH AND )
28REHABILITATIVE SERVICES, )
31)
32Respondent. )
34___________________________________)
35FINAL ORDER
37A hearing was held in this case on September 11, 1989 in Tallahassee,
50Florida, before Arnold H. Pollock, Hearing Officer with the Division of
61Administrative Services.
63APPEARANCES
64For the Petitioners: Paulette Ettachild, Esquire
70225 N. E. 34th Street, Suite 300
77Miami, Florida 33137
80Cindy Huddleston, Esquire
83345 S. Magnolia Dr., Suite A-27
89Tallahassee, Florida 32301
92For the Respondent: Ken Muszynski, Esquire
981323 Winewood Boulevard
101Tallahassee, Florida 32399-0250
104STATEMENT OF THE ISSUES
108The issue for consideration is the validity of the Department of Health and
121Rehabilitative Services' Proposed Rules 10C-1.080, 10C-1.082, and 10C-1.107,
129Florida Administrative Code, as appropriate exercises of delegated legislative
138authority.
139PRELIMINARY STATEMENT
141By Notice published July 21, 1989, the Department of Health and
152Rehabilitative Services, (Department), proposed to implement three new rules,
16110C-1.080, 10C-1.082, and 10C-1.107. By Petition to determine the invalidity of
172these rules, dated August 10, 1989, counsel for the Petitioner, Nola Little, and
185the former Petitioner, Marina Brasetch, requested that the proposed rules in
196question be declared invalid, and the Petition was forwarded to the Division of
209Administrative Hearings for the appointment of a Hearing Officer, received on
220August 10, 1989. By Order of Assignment dated August 18, 1989, the Director of
234the Division of Administrative Hearings appointed the undersigned to hear the
245matter and by Notice of Hearing dated August 21, 1989, the undersigned set the
259case for hearing in Tallahassee on September 11, 1989, at which time it was held
274as scheduled.
276On September 1, 1989, approximately 10 days prior to the convening of the
289hearing, Petitioner's counsel filed a Petition to Intervene on behalf of Neftali
301Perez, Genioveza Perez, and Raphael Vargas. By Order dated September 6, 1989,
313the undersigned granted the Petition to Intervene over objection by Respondent
324and at the hearing, indicated his intention to continue with the case regarding
337the Intervenors as well as Ms. Little.
344At the hearing, Petitioner presented the testimony of Rosemary Gallagher,
354an associate with the Florida Catholic Conference; Dr. Frederick W. Bell, an
366economist with the Florida State University; and Jennifer Lange, a program
377administrator with the Department; and introduced Petitioner's Exhibits 2
386through 6 and 12 through 17. Petitioner's Exhibits 1, and 7 through 11 were
400marked but not received. Petitioner's Exhibit 18 for identification was filed
411by mail after the hearing. Respondent presented the testimony of Harry
422Greenwood, an employee of the Department in its economic services division; and
434Edward Winstead, Assistant Secretary for Economic Services, and introduced
443Respondent's Exhibits A through I and K. Respondent's Exhibits J and L were
456marked but not received.
460Subsequent to the hearing, a transcript was provided. On November 2, 1989,
472Respondent filed a Motion for Order to Show Cause, citing the decision of the
486Florida First District Court of Appeals in a petition for review filed by
499Petitioner Little challenging the validity of the rules in question, which
510opinion, Respondent contends, appears to be dispositive of the issues in the
522case. On November 14, 1989, Petitioner Little, filed her response to the motion
535and on November 21, 1989, submitted her Proposed Findings of Fact which have
548been ruled upon in the Appendix to this Final Order. Respondent's Counsel has
561not submitted any proposed Findings of Fact.
568While the Petition in this case refers to Rules 10C-1.080, 10C-1.082, and
58010C-1.107, the Court's opinion refers to Emergency Rules 10CER 89-3, 89-4, and
59289-5. The Court determined the Department had complied with applicable legal
603requirements pertinent to the promulgation of emergency rules. In the instant
614case, though the rules may be the same in substance, the issue is the substance
629of the rules and their conformity with delegated legislative authority rather
640than the propriety of the emergency nature of promulgation. Therefore, the
651Motion For Order To Show Cause is denied and matter will be resolved on the
666basis of the testimony and exhibits presented at hearing and the submittals of
679counsel.
680At the beginning of the hearing, Counsel for the Department "moved to
692strike" both Petitioners for lack of standing in that Petitioner Little had
704removed herself from the State of Florida on a permanent basis and is no longer
719eligible for the service in issue here. She may, however remain eligible for
732one final payment. Ms. Brasetch, on the other hand, has failed to respond to
746any discovery prior to the commencement of the hearing though given adequate
758opportunity to do so. After argument by both counsel, and the introduction of
771testimony relevant to the motion, Petitioner Brasetch was stricken as a
782Petitioner and the undersigned ordered that the hearing proceed regarding the
793Ms. Little and Intervenors. At the same time, counsel were given 10 days from
807the conclusion of the hearing to submit argument on the question of standing as
821regard to Ms. Little. Neither side has done so, though counsel for Ms. Little
835addressed the subject in her Proposed Findings of Fact and Conclusions of Law.
848Issue as to standing was not raised as to Intervenors.
858FINDINGS OF FACT
8611. The Respondent, Department of Health and Rehabilitative Services is the
872state agency charged with the responsibility of monitoring the Aid For Families
884with Dependent Children, (AFDC), program in Florida. Petitioner Nola Little and
895the Intervenors, are recipients of services under that program and subject to
907the terms of the existing and proposed rules.
9152. The Department published notice of Proposed Rules 10C-1.080, 10C-1.082,
925and 10C-1.107 in Volume 15, Florida Administrative Weekly, at pages 3082-3083,
936on July 21, 1989. The rules in question deal with the issue of entitlement to
951payment to eligible applicants for AFDC. Rule 10C-1.080(10)(b) has been amended
962to change the definition of the date of entitlement to the date of authorization
976or the 30th day from the date of application, whichever is earlier. Rule 10C-
9901.080(11) has been amended to provide that the first payment to an eligible
1003applicant must be made for the date of authorization or the 30th day from the
1018date of application, whichever is earlier, and provides for a prorated payment
1030based on the date of entitlement. Rule 10C-1.082 has been amended to provide
1043that grants of applicants will be prorated for the initial month of entitlement.
1056The increase in grant for the needs of persons added to the grant will be
1071prorated for the initial month of grant increase. Rule 10C-1.107 has been
1083amended to provide that the initial month's grant will be prorated from the date
1097of entitlement. The initial month of grant increase for adding the needs of
1110individuals to the grants will be prorated from the add date.
11213. Thereafter, on August 10, 1989, Petitioner Little filed a petition to
1133determine the invalidity of the proposed rules alleging that:
1142a. They violate Section 409.235, Florida
1148Statutes, which requires the Department
1153to furnish monthly financial assistance,
1158and
1159b. They provide an inadequate statement
1165of economic impact.
11684. At the time she filed her Petition, Nola Little was a pregnant AFDC
1182applicant residing in Pensacola, Florida. Intervenor Perez and his wife reside
1193in Miami, Florida with Mrs. Perez' son by a former marriage. Mrs. Perez and her
1208son were found to be eligible for AFDC. Mr. Perez and his natural children have
1223not been approved due to pending consideration of Mr. Perez' determination of
1235incapacity as a result of a back injury. He is, otherwise, eligible for AFDC.
1249All Petitioners will receive prorated benefits under the proposed rule.
12595. Prior to the 1988 legislative session, the Department had been
1270requested by the President of the Florida Senate to identify programs for a
1283possible 5% reduction. The date of entitlement for new applicants for AFDC, the
1296subject matter of one rule in question, was identified as one of those programs.
1310Though the Governor agreed with the Department's proposal and recommended it,
1321the Legislature did not adopt that program for cuts in the 1988 session.
13346. Again, prior to the 1989 legislative session, the Governor directed
1345each department to identify programs for possible cuts up to 10% for a total of
1360$23.9 million. As a part of his directive, he hypothetically identified cuts in
1373programs to reach that figure. One item so identified was a change in the date
1388of entitlement to AFDC.
13927. After considering various ways to implement the cuts, (4 different
1403program alternatives), all of which had an unpleasant effect, Mr. Don Winstead,
1415Assistant Secretary of DHRS for Economic Services, chose the current method of
1427reduction and recommended it to the Department's Deputy Secretary for
1437Administration who incorporated it as a part of the entire Department submittal
1449to the Governor. A 5% cut list was ultimately forwarded to the Governor in
1463December 1988, which included two of those alternatives on the 10% list. The
1476instant program cuts were not recommended by the Governor.
14858. Mr. Winstead and his staff generated substantial input to the
1496Legislature, its committees, and its staffers about the subject. Ultimately,
1506the Legislature, in conference, agreed to certain cuts. Economic Services was
1517reduced by some $17,476,531.00, including the programs covered by the proposed
1530rules in question. It was clear to Mr. Winstead that the Legislature mandated
1543the reduction as proposed. In July 1988, the Department's District Directors
1554were told to implement the change.
15609. In Mr. Winstead's opinion, if the Department had "its druthers," it
1572would not have made the change. The Department's policies are driven by the
1585Governor's direction. Since the Governor did not recommend the cut, the
1596official position of the Department is, and was, against it. In fact, Mr.
1609Winstead felt it was not a good idea and testified against cuts in committee
1623hearing. He indicated there that neither he nor the Department supported this
1635cut or recommended it. Though he did not agree, the lawmakers possessed the
1648authority to make the change and the cuts were passed by the Legislature and
1662signed by the Governor. He is, therefore, obliged to implement them.
167310. Since the passage of the act which mandates the cuts, Mr. Winstead has
1687not considered alternatives to direct budget deficit reduction, nor has the
1698Department applied to the Governor to transfer social and economic program funds
1710to address budgeting problems with the AFDC budget.
171811. Mr. Winstead's position is that the Appropriations Act mandates him to
1730modify the AFDC grant date and the specific basis therefor is Appropriation
1742Number 864 which gives general revenue and trust fund amounts which, when
1754considered with the Legislature's statement of intent, indicates what has to be
1766done. Admittedly, there is no specific mandate from the Legislature or the
1778Governor to cut this specific program. However, when the list of possible
1790program reductions was prepared in an in-house memorandum, the cut in AFDC funds
1803was identified as #3.
180712. Mr. Winstead's position with regard to this cut is supported by
1819Jennifer Lange, a program administrator with the Department whose unit wrote the
1831proposed rule. She felt the Department had no option but to promulgate the rule
1845due to the Legislative mandate. Considering the evidence as a whole, it is
1858found that a logical conclusion to be drawn from the pronouncements, documents,
1870and directives coming from the Legislature through the entire appropriations
1880process, is that drawn by the Department here, to wit: cuts were mandated by
1894the Legislature in this and other programs and action must be taken to implement
1908them. The drafting and promulgation of the rule in question is but an
1921appropriate extension of that conclusion.
192613. Assuming the rule is ultimately promulgated and funds are saved
1937thereby, it is the intention of the Department to continue with the mandate of
1951the Legislature until that body affirmatively changes its direction, even if
1962more money is found somewhere else. Under the proposed rule, an applicant would
1975be issued a check for the first period 30 days after application or after
1989approval of the application, whichever came first. Since the Department
1999routinely runs three payrolls a month, it would probably be one third of a month
2014after the cutoff date that an applicant would receive his or her first check.
202814. Ms. Lange also was instrumental in drafting the Economic Impact
2039Statement (EIS) to accompany the rules, utilizing in doing so, information
2050garnered from a number of sources. Some figures utilized therein are a
2062generalized estimate only. The majority of applications are accomplished within
2072the 30 day period. Ms. Lange is satisfied that in the preparation of the EIS,
2087all pertinent information required to be considered was considered and nothing
2098that would materially effect the probity of the EIS was eliminated.
210915. The actual EIS was drafted by Mr. Greenwood and his team in late May
2124or early June 1989. In doing so, Mr. Greenwood did not consider population
2137additives. While the drafters of the EIS considered the entire subject matter,
2149including legislative policy, no impacts, other than those ultimately addressed
2159therein, were considered. The 6,000 case per month figure was used because it
2173was the information provided by the Department's data unit and as a figure that
2187was being used elsewhere in the Department. This was not the latest figure
2200available, however. Current figures available reflected a potential for
2209slightly in excess of 8,000 cases per month. The difference of over 2,000 cases
2225per month is substantial. Mr. Greenwood concludes that the maximum which can be
2238lost to any applicant is 30 days benefit, and the Department presumed, for the
2252EIS, that all would lose that amount. In reality, that is unlikely.
226416. There is no doubt that the implementation of the proposed rule will
2277have an impact on the economic welfare of those currently receiving AFDC and
2290those who may receive it in the future. Rosemary Gallagher, an associate with
2303the Florida Catholic Conference and a lobbyist in the area of social services,
2316is very familiar with the social service agencies available to the poor in this
2330state. In her opinion, having studied the proposed rules, almost all agencies
2342will be adversely affected by their implementation. Clients will require more
2353agency help as a result of the rule implementation and homeless shelters will be
2367hit the hardest. The homeless population in Florida is composed of
2378approximately 1/3 single women with children who need financial assistance to be
2390self-sufficient. Reduction in AFDC benefits will require the client to stay in
2402the shelter longer to accumulate rent money and funds for other required
2414expenditures. By the same token, other organizations will similarly be
2424affected.
242517. In addition, less money will have a devastating effect on the agencies
, 2438and the delay in receipt of payments, occasioned by the proposed change, will,
2451in her opinion, hurt hundreds of thousands who are affected. This cutback is,
2464she believes, the worst thing to happen in a long time, and she lobbied against
2479the basic legislation calling for cutbacks.
248518. Ms. Gallagher has never been a case worker and has no degree or course
2500work in either economics or social work. It is her opinion, however, that the
2514legislative statement relied on by the Department calls for modification to
2525AFDC, not necessarily a cut. As a matter of history, she relates, the
2538Department has been asked for the last several years to list items for cut and
2553historically has always identified those items it felt certain the Legislature
2564would never cut. When, in this current year, it listed the currently considered
2577program, in her opinion, this was done with the belief the Legislature would not
2591approve any cuts, a position consistent with that indicated by Mr. Winstead, but
2604cuts were nonetheless made by that body without, she believes, a proper public
2617hearing.
261819. Dr. Frederick Bell, an economist on the faculty of Florida State
2630University and an expert in economics, micro-economics, and the techniques of
2641economic impact statement preparation, reviewed the instant EIS along with
2651depositions and the transcript of public hearing on the matter. He has done
2664some rudimentary research into the effect of the proposed rules and considered
2676therewith the spending patterns of low income people in the areas of housing,
2689clothing, and transportation. He has also looked at small businesses in Florida
2701and feels that the EIS as drafted does not accurately reflect the situation and
2715its method of preparation is poor. In his opinion, it is inadequate to show the
2730effect on the economy since it failed to consider all factors pertinent thereto.
274320. He objects to the use of the term "negative cost" as used in the
2758document, which he does not considers to be a proper economic concept. He
2771assumes it is another term for savings.
277821. He assumes the EIS reference to 6,000 applications which are those
2791approved per month. Other pertinent documentation, however, refers to a
2801substantially larger number of applications (8,042) yet neither figure is
2812sourced, and Dr. Bell is unable to verify their accuracy. The parties
2824stipulated that in formulating the EIS, the Department utilized figures provided
2835by the Legislature, but Dr. Bell's complaint regarding his inability to check
2847their accuracy is still valid.
285222. Dr. Bell also questions the average grant amounts and notes that the
2865Department assumes that the determination of eligibility is always going to be
2877accomplished within 30 days. In his opinion, this is neither reasonable nor
2889substantiated. He believes it is a "monumental" error to put into the EIS
2902entirely different numbers than are actually expected. In the instant case,
2913this resulted in a difference of $6.4 million which is substantial.
292423. With regard to that section of the EIS that starts, "Changing the
2937effective date of grant increases," on the one hand, it indicates a cost of
2951increased benefits as a result of adding individuals to the household, and on
2964the other hand claims a reduced cost resulting from the loss of benefits to
2978newborns. Dr. Bell professes to be "flabbergasted" by the conclusion drawn in
2990the EIS that the additional costs to the agency will be balanced out by the
3005benefits saved. In his opinion, there is absolutely no justification for that
3017conclusion.
301824. He also disputes agency figure of $17.5 million in resultant cuts,
3030concluding it would actually be more in the area of $23.9 million. As a result,
3045he believes the impact will be substantially greater to individuals than that
3057indicated. He also contends the state should have considered the cumulative
3068effect on the economy of governmental program cuts, otherwise known as the
"3080multiplier effect." A reduction in amounts spent will have a resultant double
3092effect on the businesses where this money would normally be spent. There is
3105nothing shown in the EIS to indicate this factor was considered.
311625. Dr. Bell also believes the agency should have considered the effects
3128of its cutback on the counties and their support agencies as well as the
3142nongovernmental charities involved in providing assistance to the
3150underprivileged who will have to pick up the slack resulting from the cut in
3164public money.
316626. He feels the EIS estimate of the cut's minimal effect on small
3179minority businesses is not supported. It appears to him that the agency failed
3192to utilize the services of the small and minority business advocate attached to
3205the Florida Department of Commerce who could have provided input on whether a
3218cutback in spending would have had a major effect on minority business
3230enterprises. Dr. Bell is convinced that it will and his opinion is
3242diametrically opposed to that of the Department. In substance, Dr. Bell was
3254convinced that the EIS was "completely inadequate."
326127. In his cross examination of Dr. Bell, Respondent's counsel indicated
3272there would be no impact on small and minority business and urges that Dr. Bell
3287was stretching when he claims there would be. Such argument is ingenuous
3299however. Regardless of which of the two impact figures cited is used, such a
3313sum cannot help but have some impact on an economy which includes small
3326businesses. The degree thereof and whether or not that impact constitutes
3337grounds to invalidate the rule is another question altogether.
334628. Nothing in the statute or the rules relating to the sufficiency of an
3360EIS requires that there be unanimity of opinion as to the conclusions drawn
3373therein. Taken as a whole, the evidence appears to show, and it is so found,
3388that while the EIS may well be subject to some disagreement as to a number of
3404the provisions therein, and while some provisions may well be contra to the
3417weight of the best evidence available, it is, nonetheless, basically adequate in
3429content and form to constitute an acceptable economic impact statement in
3440support of the proposed rules here.
3446CONCLUSIONS OF LAW
344929. The Division of Administrative Hearings has jurisdiction over the
3459parties and the subject matter in this case. Section 120.56, Florida Statutes.
3471The Petitioners have the burden in this proceeding since they are challenging
3483the validity of the Department's proposed rules. Agrico Chemical Company v.
3494Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert.
3506den. 376 So.2d 777 (Fla. 1st DCA 1986).
351430. The Department is charged with conducting, supervising and
3523administering all social and economic services within the state to be carried on
3536by the use of federal or state funds or funds from any other source. The
3551Department shall determine the benefits each applicant or recipient of
3561assistance is entitled to receive under the statute. Section 409.026(1),
3571Florida Statutes.
357331. Under the provisions of Section 409.235(1), Florida Statutes, it is
3584the intent of the Legislature to furnish financial assistance and rehabilitative
3595and other services to dependent children and to their families who are of a
3609degree of relationship as specified by the Department. Monthly assistance, in
3620such amount as determined by the Department, shall be paid to an individual who
3634is eligible under Section 409.185, Florida Statutes.
364132. Section 409.185(4) provides that the Legislature shall set the
3651standard of need and the payment levels with respect to payments for AFDC in the
3666General Appropriations Act. Under the provisions of subsection (5) of this
3677statute, the departmental biennial budget submitted to the Governor shall
3687include a report on current and projected needs with recommendations regarding
3698the standard of need. A copy of this report shall be provided to pertinent
3712committee chairmen in each house of the Legislature, and the statute also
3724provides, at Section 409.185(5)(c):
3728[to) the chairman of the
3733appropriations subcommittee of each house
3738that has jurisdiction over the budget of
3745the Department of Health and
3750Rehabilitative Services for consideration
3754of setting the standard of need and the
3762payment levels for aid to families with
3769dependent children in the appropriations
3774act.
377533. Petitioners claim that the proposed rules in question here,
3785promulgated under the Department's authority to do so, are invalid in that they
3798violate Section 409.235, Florida Statutes, which requires the Department to
3808furnish monthly financial assistance, and they provide an inadequate statement
3818of economic impact.
382134. It is recognized that Section 120.54(15), Florida Statutes, provides
3831that, "No agency has inherent rulemaking authority...." However, "rulemaking
3840authority may be implied to the extent necessary to properly implement a statute
3853governing the agency's statutory duties and responsibilities." Fairfield
3861Communities v. Florida Land and Water Adjudicatory Commission, 522 So.2d 1012,
38721014 (Fla. 1st DCA 1988). Here, the Department promulgated its rules in an
3885effort to comply with what it considered to be a mandate of the Legislature,
3899contained in the General Appropriations Act for the current year, to reduce the
3912amounts spent in certain areas. Admittedly the legislative mandate did not
3923particularize the instant action of the Department. Instead, the Legislature,
3933in its appropriation, reduced the amounts available to the Department for
3944disbursement under the AFDC program and, within the authority of the Department
3956to promulgate rules for the administration of programs consistent with the
3967availability of funds provided by the Legislature, chose to promulgate the
3978instant rules in such a manner that eligible recipients would still receive the
3991required aid while the Department had an appropriate and not unlimited time in
4004which to process applications.
400835. The intent of the new rules, and the basic thrust of Petitioners'
4021complaint, is that the eligible applicant now will receive payment upon
4032approval, but in no case, more than 30 days after application.
404336. Petitioners assert this is violative of their rights as outlined under
4055Section 409.235. Petitioners also claim that since the Legislature did not
4066specifically direct the cuts to be implemented in that manner chosen by the
4079Department, and since, they claim, the Department was erroneously relying on
4090what it considered to be legislative direction to do so, its action was, thereby
4104arbitrary and capricious and, therefore, invalid. This is simply not so.
411537. Section 120.52(8), Florida Statutes, defines and specifies that an
"4125invalid exercise of delegated legislative authority means action which goes
4135beyond the powers, functions, and duties delegated (to an agency) by the
4147Legislature." It further provides that if any one or more of the following
4160applies, an agency's proposed or existing rule is invalid:
4169(e) The rule is arbitrary or capricious.
417638. In considering any challenge to an agency's rules, it is recognized
4188that the party asserting the invalidity of such rule has a heavy burden. In
4202Austin v. Department of Health and Rehabilitative Services, 495 So.2d 777 (Fla.
42141st DCA 1986), the Court stated:
4220...agencies are given wide discretion in
4226the exercise of their lawful rulemaking
4232authority. "An agency's construction of
4237a statute is entitled to great weight and
4245is not to be overturned unless clearly
4252erroneous." Department of Professional
4256Regulation, Board of Medical Examiners v.
4262Durrani, 455 So.2d 515, 517 (Fla. 1st DCA
42701984).
427139. Further, in Askew v. Agrico Chemical Co., 376 So.2d 74 (Fla. 1979),
4284the Court stated that:
4288...a court must uphold the validity of
4295a proposed rule if the rule is reasonably
4303related to the purpose of the enabling
4310legislation, and is not arbitrary and
4316capricious. The burden is on one who
4323attacks a rule to show that the rule
4331exceeds its statutorily delegated
4335authority. The person attacking the rule
4341must show also that the rule is arbitrary
4349and capricious by a preponderance of the
4356evidence.
435740. Where an agency construes the statute in its charge in a permissible
4370way, that interpretation must be sustained though another may be possible or
4382even, in the view of some, preferable. State, Department of Health and
4394Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 249 (Fla. 1st DCA
44071981); Pan American World Airways, Inc. v. Florida Public Service Commission and
4419Florida Power and Light Company, 427 So.2d 716, 719 (Fla. 1983). The
4431Petitioners must show that the agency's rule interpreting the statute is clearly
4443erroneous or unauthorized. ABC Liquors, Inc. v. Department of Business
4453Regulation, 397 So.2d 696, 697 (Fla. 1st DCA 1981). Administrative Rules should
4465not be invalidated if they are reasonably related to the purposes of the
4478enabling statutes, and are not arbitrary or capricious. Grove Isle Ltd. v.
4490Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984).
450141. Clearly, the Florida Legislature, by reducing the appropriation to the
4512Department, intended that less funds be expended on various programs within the
4524Department's supervision. By its specific reduction of the area in which AFDC
4536is contained, the Legislature indicated its intention that changes be made in
4548the implementation of the program and its application even if specific
4559directions were not given to the Department as to how to implement these changes
4573and savings.
457542. In Agrico Chemical Co. v Department of Environmental Regulation, 365
4586So.2d 759, 763 (Fla. 1st DCA 1978), the terms, "arbitrary" and "capricious" were
4599defined as follows:
4602A capricious action is one which is taken
4610without thought or reason or
4615irrationally. An arbitrary action is one
4621not supported by facts or logic, or
4628despotic.
462943. Here, the proposed rules at issue are neither arbitrary nor
4640capricious. The record establishes that the rule was the well reasoned response
4652of the agency to the basic guidelines and directives given by the Legislature
4665and contra to the claim of the Petitioners, the Department's analysis of the
4678thrust of those directions was not erroneous.
468544. The second thrust of Petitioners' attack on the rule making process
4697here is its claim that the economic impact statement accompanying the proposed
4709rules is deficient.
471245. Review of the EIS in this case resulted in a finding herein that while
4727the EIS may be subject to different opinion and while different conclusions
4739might be drawn as to its sufficiency, it was, nonetheless, considered to be
4752adequate to support the proposed action herein.
475946. The preparation of an EIS, "is a procedural aspect of an agency's
4772rulemaking authority." Florida-Texas Freight, Inc. v. Hawkins, 379 So.2d 944,
4782946 (Fla. 1979). As such, it is subject to the "statutory harmless error rule"
4796of Section 120.68(8), Florida Statutes. Department of Health and Rehabilitative
4806Services v. Wright, and Department of Health and Rehabilitative Services v.
4817Mitchell, 439 So.2d 937 (Fla. 1st DCA 1983).
482547. In the instant case, even assuming, arguendo, that the EIS contained
4837some inaccuracies, there has been no showing that these inaccuracies either
4848harmed the Department's decision making process or adversely affected its
4858decision. In fact, the alleged economic impact described by both Dr. Bell and
4871Ms. Gallagher was not supported by any hard figures but was more their opinion
4885of the types of activities which would be adversely affected.
489548. The requirements of Section 120.54(2), Florida Statutes, do not oblige
4906the Hearing Officer to reverse a Department decision solely on the basis that
4919the attendant EIS appears to be facially deficient. To do so would tend to
4933exalt form over substance. See Florida-Texas Freight v. Hawkins, supra. Here,
4944it is arguable that the Department's EIS was less than thorough. However, if
4957the proceedings are not rendered unfair thereby, or if the action is not found
4971to be incorrect, then minimal deficiencies in an EIS will not constitute
4983reversible error. Plantation Residents' Association v. School Board, 424 So.2d
4993879 (Fla. 1st DCA 1982), rehearing denied January 26, 1983.
500349. There is no evidence in the record of this proceeding which would
5016indicate that the EIS was fatally flawed and resulted in an improper
5028promulgation of unnecessary rules. The Department is subject to the funding
5039directives of the Legislature and, as a branch of the Executive Department, is
5052subject also to the guidance of the Governor. Here, Petitioners have failed to
5065satisfy their burden to show that the proposed regulation is an invalid exercise
5078of delegated legislative authority and the proposed rules are neither arbitrary
5089or capricious, nor do they violate Petitioners' rights under Section 490.235,
5100Florida Statutes.
5102Based upon the foregoing, it is, therefore
5109ORDERED THAT the Petition filed herein seeking a determination of the
5120invalidity of Proposed Rules 10C-1.080, 10C- 1.082, and 10C-1.107 is DISMISSED
5131and the relief sought therein, DENIED.
5137DONE and ORDERED in Tallahassee, Florida this 13th day of December, 1989.
5149___________________________________
5150ARNOLD H. POLLOCK, Hearing Officer
5155Division of Administrative Hearings
5159The DeSoto Building
51621230 Apalachee Parkway
5165Tallahassee, Florida 32399-1550
5168(904) 488-9675
5170Filed with the Clerk of the
5176Division of Administrative Hearings
5180this 13th day of December, 1989.
5186APPENDIX TO FINAL ORDER
5190IN CASE NO. 89-4425R
5194The following constitutes my specific rulings pursuant to Section
5203120.59(2), Florida Statutes, on all of the Findings of Fact submitted by the
5216parties to this case.
5220FOR THE PETITIONER:
52231-3. Accepted and incorporated herein.
52284-9. Accepted and incorporated in part herein.
523510-14. Accepted and incorporated in part herein.
524215-17. Accepted and incorporated herein.
524718. Accepted as interpreted to mean a recommendation for specific action.
525819-21. Accepted and incorporated herein.
526322-25. Accepted in so far as representing that the Legislature did not mandate
5276the specific cut.
527926-28. Accepted.
528129-31. Accepted and incorporated herein.
528632. Accepted but not proven.
529133-35. Alleged by Petitioners but not proven. However, it is assumed that the
5304implementation of the rules will have some undefined, temporary impact on
5315recipients.
531636-38. Accepted and incorporated herein.
532139-42. Accepted and incorporated herein, but recognizing that the dollar value
5332in question is spread over in excess of 8,000 people.
534343. The drafter used information provided which was not the most current
5355information available.
535744-46. Accepted.
535947. Accepted as to error; rejected as to gross nature thereof.
537048. Accepted and incorporated herein.
537549. Rejected if interpreted to indicate a loss of total benefits. Partial
5387benefits may be lost.
539150-53. Accepted.
539354 & 55. Accepted.
539756. Accepted.
539957 & 58. Accepted in that neither is mentioned therein.
540959. Accepted except for the term, "enormous."
541660 & 61. Accepted as reported.
542262. Accepted except for the term, "devastating."
542963 & 64. Accepted.
543365-69. Accepted.
543570. Not proven.
543871. Accepted.
544072-75. Accepted.
544276-83. Not present.
544584-86. Accepted.
5447COPIES FURNISHED:
5449Paulette Ettachild, Esquire
5452225 Northeast 34th Street, Suite 300
5458Miami, Florida 33137
5461Cindy Huddleston, Esquire
54642121 Delta Way
5467Tallahassee, Florida 32303
5470Ken Muszynski, Esquire
5473DHRS
54741323 Winewood Blvd.
5477Tallahassee, Florida 32399-0700
5480Gregory Coler
5482Secretary
5483Department of Health and
5487Rehabilitative Services
54891323 Winewood Blvd.
5492Tallahassee, Florida 32399-0700
5495John Miller, Esquire
5498General Counsel
5500DHRS
55011323 Winewood Blvd.
5504Tallahassee, Florida 32399-0700
5507Sam Power
5509Agency Clerk
5511Department of Health and
5515Rehabilitative Services
55171323 Winewood Blvd.
5520Tallahasse, Florida 32399-0700
5523Liz Cloud, Chief
5526Bureau of Administration Code
5530Room 1802, The Capitol
5534Tallahassee, Florida 32399-0250
5537Carroll Webb, Executive Director
5541Administrative Procedures Committee
5544120 Holland Building
5547Tallahassee, Florida 32399-1300
Case Information
- Judge:
- ARNOLD H. POLLOCK
- Date Filed:
- 08/10/1989
- Date Assignment:
- 08/21/1989
- Last Docket Entry:
- 12/13/1989
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Department of Health
- Suffix:
- RP