STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIE LOUISNE, )

)

Petitioner, )

)

vs. ) CASE NO. 78-995RX

)

THE DEPARTMENT OF COMMERCE )

OF THE STATE OF FLORIDA, )

)

Respondent. )

)

FINAL ORDER

Petitioner has filed a "Petition to Determine the Invalidity of a Rule Pursuant to Section 120.56, Florida Statutes (1977)". Petitioner is seeking a determination that a portion of Fla. Admin. Code Rule 8B-5.11(5)(a), a rule promulgated by the Respondent, is an invalid exercise of delegated legislative authority. The case was assigned to the undersigned hearings officer by Order entered June 8, 1978. No final hearing was held because the parties, through counsel, have stipulated to the relevant facts.

APPEARANCES

For Petitioner: Stephen Maher, Esquire

Legal Services of Greater Miami, Inc. Post Office Box 47000N

Miami, Florida 33147

For Respondent: Dan F. Turnbull, Jr., Esquire

Assistant General Counsel Room 401, Collins Building Tallahassee, Florida 32304

Petitioner asserts that the portion of the challenged rule which provides for notice of hearing at least seven (7) days in advance of the hearing is invalid, because the Florida Administrative Procedure Act requires that such notice be given at least fourteen (14) days in advance of the hearing.

FINDINGS OF FACT

1. The Respondent is an agency of the State of Florida. The Respondent has adopted Fla. Admin. Code Rule 8B-5.11(5)(a), a rule governing practice and procedure before Appeals Referees in appeals from the grant or denial of unemployment benefits by Claims Examiners. This rule provides:

   
   

   1. Copies of the Notice of Hearing shall be mailed by first class mail to all inter- ested parties and their attorneys or autho- rized agents of record at least seven (7) days in advance of the hearing.

      Hearings held pursuant to Fla. Admin. Code, Chapter 8B-5 are hearings de novo.

      
      

2. The Florida Administrative Procedure Act requires that agencies give not less than fourteen (14) days notice of hearing in all proceedings in which the substantial interests of a party are determined by an agency. Section 120.57(1)(b)2, Fla. Stat. (1978). The Respondent is not exempt from this requirement, and has obtained no waiver of this requirement.

   
   

3. Petitioner, MARIE LOUISNE, resides at 19315 S.W. 117th Court, Miami, Florida.

   
   

4. Petitioner filed a claim for unemployment benefits on or about February 28, 1978. Her claim was denied by a Claims Examiner, and Petitioner timely appealed this decision. On Nay 24, 1978, the Respondent mailed Petitioner a Notice of Hearing, informing her that a hearing on her appeal would be held before an Appeals Referee on May 31, 1978. That Notice was given pursuant to the challenged rule. Petitioner received that Notice on May 25, 1978. Petitioner contends, and Respondent now agrees, that this Notice is inadequate. Section 120.57(1)(b)2, Fla. Stat. (1978)

   
   

5. Petitioner filed this action on May 30, 1978, alleging that she was a party to the scheduled proceeding, and that her substantial interests would be affected at the hearing scheduled for May 31, 1978, in that her entitlement to unemployment benefits depended upon the outcome of that hearing. The Respondent has stipulated to these allegations.

   
   

6. The parties have stipulated to the Petitioner's standing to maintain this action.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to this proceeding and over the subject matter. Section 120.56, Fla. Stat. (1978).

   
   

8. The Petitioner has standing to maintain this action,

   
   

9. Hearings held before Appeals Referees must be conducted pursuant to the Florida Administrative Procedure Act. Section 120.50 et seq.

   
   

10. Since the substantial interests of the parties to hearings before Appeals Referees are determined by the Respondent in such proceedings, all parties, and their attorneys, must be given at least fourteen (14) days notice of such hearings. Section 120.57(1)(b)2, Fla. Stat. (1978). Since the challenged portion of Fla. Admin. Code Rule 8B-5.11(5)(a) authorizes the Respondent to give less than fourteen (14) days notice of hearing, it is in conflict with the controlling statutory provision, and hence is invalid.

FINAL ORDER

Based upon the foregoing Findings of Fact and Conclusion of Law, it is hereby

ORDERED:

The protion of Fla. Admin. Code Rule 8B-5.11(5)(a) which provides for notice of hearing at least seven days in advance of the hearing is an invalid exercise of delegated legislative authority.

DONE and ORDERED this 6th day of November, 1978, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings

101 Collins Building

Mail: 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Stephen Maher, Esquire

Legal Services of Greater Miami, Inc. Post Office Box 47000N

Miami, Florida 33147

Dan F. Turnbull, Jr., Esquire Assistant General Counsel Department of Commerce

Room 401 Collins Building Tallahassee, Florida 32304

Carroll Webb, Executive Director Administrative Procedures Committee Room 120 Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State The Capitol

Tallahassee, Florida 32304

Docket for Case No: 78-000995RX

Orders for Case No: 78-000995RX