STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA LEWIS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2045RX

) STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, DIVISION OF SOCIAL ) AND ECONOMIC SERVICES, )

)

Respondent. )

)

FINAL ORDER

The Petitioner seeks to receive a determination that parts of a policy manual used by employees of the Respondent agency, Department of Health and Rehabilitative Services, is an invalid administrative rule. The Petition was filed Pursuant to Section 120.56, F.S., which Permits Hearing Officers of this division to determine the invalidity of administrative rules.

APPEARANCES

For Petitioner: Charles R. Colbrunn, Esquire For Respondent: James G. Mahorner, Esquire

FINDINGS OF FACT

1. Petitioner is a recipient of benefits disbursed by the Respondent and herein challenges the department's practice with the administering of "shelter" payments in the Respondent's Program of Aid to Families With Dependent Children (AFDC).

   
   

2. The Petitioner is a mother who presently receives full AFDC shelter assistance payments through this program. In March of 1977 she applied for these benefits and was initially determined to be ineligible. The basis of this ineligibility was the interpretation, by the department, of its rules that shelter payments were available only to recipients who had a payments obligation on the dwelling in which they lived. In other words, the Petitioner was determined to be ineligible for payments because she did not live in the same house for which she had a mortgage obligation. The department construes its rules in its Assistance Payments Manual to restrict shelter payments only to recipients who actually live in the dwelling for which they are obligated to make payments.

   
   

3. The Petitioner later moved into the dwelling for which she makes a mortgage payment. At that time she was ruled eligible for payments and received monthly assistance payments. In addition, the Petitioner was granted retroactive sustenance payments from the date of her initial application.

4. The Petitioner alleges that the Assistance Payments Manual promulgated by the department and used by its staff members is an invalid rule in that it fits the definition of a rule in Section 120.52(14), F.S., and has not been formally adopted through rulemaking proceedings as required by Chapter 120, F.S.

   
   

5. The department acknowledges that the Assistance Payments Manual has not been adopted as a rule pursuant to Chapter 120, F.S., the Administrative Procedure Act.

   
   

6. This case went to final hearing on December 21 , 1977, at Orlando, Florida. The Petitioner did not appear at that proceeding. Testimony was taken from Cheri Beck, a payments supervisor for the Department of Health and Rehabilitative Services. Also, the deposition of Ms. Beck taken on December 19, 1977, was received into evidence. An additional deposition, that of Sylvia McElroy, another employee of the Respondent, was also received. After reviewing the submissions and the testimony received, it is the determination of the undersigned that the Petitioner has not demonstrated that she is substantially affected by the alleged rule and has inadequate standing to maintain this proceeding. The crucial aspect of the Petitioner's circumstance is that although she was initially determined to be ineligible for assistance payments because of the restrictions in the Assistance Payments Manual, she was later granted eligibility and issued retroactive payments. Therefore at the time this matter went to hearing the Petitioner was not adversely affected by any determination of the Respondent based upon the use of their Assistance Payments Manual. The Petitioner has suffered no loss which can be attributed to the alleged rule.

   
   

7. Without having adequately demonstrated that she is Substantially affected by the alleged rule, Petitioner is not entitled to a determination of its validity.

   
   

8. The First District Court of Appeal considered this identical question in the case of Florida Department of Offender Rehabilitation v. Leroy Jerry,

   So.2d , (Case No. FF-303, Jan. 10, 1978). In that opinion the court determined that a Prisoner incarcerated in a State institution was not entitled to a determination of the validity of an alleged rule Since he had not demonstrated he had suffered any hardship because of the operation of the rule.

   
   

9. In a similar fashion the Petitioner here has had any possible loss of benefits restored to her by the Respondent. She no longer has cause to receive a resolution of this Petition Pursuant to Section 120.56, F.S. It is, therefore,

ORDERED:

That the Petition is dismissed.

Further, since the Petitioner has no standing to receive a determination of her Petition, no ruling is made on the Proposed findings submitted at the final hearing.

DONE and ORDERED this 20th day of January, 1978, in Tallahassee, Florida.

KENNETH G. OERTEL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1978.

COPIES FURNISHED:

Charles L. Colbrunn, Esquire Greater Orlando Area Legal

Services, Inc.

128 W. Central Boulevard Orlando, Florida 32802

James Mahorner, Esquire Dept. of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedure Committee

120 Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State

403 E. Gaines Street Tallahassee, Florida 32304

Docket for Case No: 77-002045RX

Orders for Case No: 77-002045RX