STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY LEE SMITH and JAMES BUSH, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1144RP

) FLORIDA DEPARTMENT OF COMMERCE, )

)

Respondent. )

)

FINAL ORDER

On June 23, 1978, the Petitioners filed a "Petition to Determine the Invalidity of Proposed Rule Pursuant to Section 120.54(4), Florida Statutes (1977)". Petitioners assert that Proposed Rule 8B-2.17 of the Florida Department of Commerce constitutes an invalid exercise of delegated legislative authority. The case was assigned to the undersigned Hearing Officer by Order entered June 30. The final hearing was scheduled by notice dated July 6, to be conducted on July 28, 1978. At the hearing the parties filed a "Trial Stipulation" which sets out a narrative of undisputed facts. The Petitioners called Dr. Howard S. Gitlow, an Associate Professor at the University of Miami, as their only witness. The Respondent called John O'Hara, the Department's Director of Research and Statistics; and Richard Davis, an attorney who was formerly employed by the Department. The parties have submitted Post-Hearing Legal Memoranda.

APPEARANCES

For Petitioners: Stephen Maher, Esquire and

Stephen Press, Esquire Miami, Florida

For Respondent: Dan F. Turnbull

Tallahassee, Florida FINDINGS OF FACT

1. The Respondent is charged with the responsibility of administering the Unemployment Compensation Program in Florida. Under the enabling statute, 443.06(1), Florida Statutes (1977), persons who are discharged from their employment due to misconduct connected with their work are disqualified from receiving unemployment compensation benefits. Under currently existing rules, such persons are also ineligible for unemployment compensation benefits for a period of time after they are reemployed. The Respondent's Proposed Rule 8B-

   2.17 is an effort to implement the provisions of 443.06(1). The rule defines the term "misconduct", establishes a procedure to be followed in determining whether an employee was discharged for misconduct, sets guidelines for determining the severity of misconduct, and increases the penalty period during which a person discharged for misconduct will be ineligible for unemployment compensation benefits after being reemployed.

2. The Petitioner, Mary Lee Smith, was discharged from her employment for alleged misconduct connected with her work. She filed an application for unemployment compensation benefits during the fourteen-day period following publication of the notice of proposed rule 8B-2.17 in the Florida Administrative Weekly. The Respondent rejected the contention that the Petitioner Smith was terminated for misconduct, and granted her unemployment compensation benefits. The Petitioner Smith is currently receiving benefits.

   
   

3. The Petitioner, James Bush, was discharged from his employment for alleged misconduct. He filed an application for unemployment compensation benefits during the fourteen-day period following the publication of the notice. He was initially determined to be ineligible for benefits by an Unemployment Compensation Examiner. Bush appealed this determination to an Appeals Referee. The Referee conducted a hearing, and reversed the earlier determination. The employer has appealed this decision; however, Petitioner Bush is presently receiving unemployment compensation benefits. Whether the decision will be upheld on appeal is a matter of conjuncture.

   
   

4. Neither Petitioner Smith nor Petitioner Bush would have suffered any affect from proposed rule 8B-2.17 if it had been in effect at the time of the hearing. Both had been found act to have been discharged from their employment for misconduct. Since the employer has appealed the decision respecting Petitioner Bush, it is conceivable that he will be affected by the proposed rule if he is unsuccessful in defending the appeal.

   
   

5. Petitioners have challenged the proposed rule, asserting that it constitutes an invalid exercise of delegated legislative authority, on the grounds that the economic impact statement prepared by the Respondent in support of the rule is inadequate, and that the standards set out in the rule are misleading and not meaningful. In view of the conclusion set out below that the Petitioners lack the requisite standing to challenge the proposed rule, it is not necessary to set out findings of fact respecting the substantive contentions.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to this proceeding and over the subject matter. 120.54(4), Florida Statutes (1977).

   
   

7. The Petitioners lack standing to seek an administrative determination of the invalidity of the proposed rule. Section 120.54(4)(a) provides that substantially affected persons may seek such determinations. Since both petitioners are presently receiving unemployment compensation benefits, they are not affected, substantially or otherwise, by the proposed rule. The fact that Petitioner Bush may, if an appeal of the Appeals Referee's decision favorable to him is successful, be affected by the proposed rule is not sufficient to clothe him with standing. Whether he will be affected by the proposed rule is a matter of speculation and conjecture. He thus lacks the continuing present adverse affect required to establish standing. Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (1st DCA Fla. 1978)

FINAL ORDER

Based upon the foregoing Findings of Face and Conclusions of Law, it is, hereby

ORDERED:

The Petition to Determine Invalidity of Proposed Rule filed by Mary Lee Smith and James Bush is hereby dismissed.

DONE and ORDERED this 22nd day of September, 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.

17430 South Dixie Highway Perrine, Florida 33157

Stephen J. Press, Esquire Legal Aid Service of Broward County, Inc.

609 South Andrews Avenue

Fort Lauderdale, Florida 33301

Dan F. Turnbull, Esquire Department of Commerce

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

403 E. Gaines Street Tallahassee, Florida 32302

Docket for Case No: 78-001144RP

Orders for Case No: 78-001144RP