TRAVIS OMAR LEE, individually ) and through his mother and ) next friend, JOSIE JONES, )
vs. ) CASE NO, 80-1518RX
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on September 11, 1980, in Miami, Florida.
17555 S. Dixie Highway, Suite 101
For Respondent: Steven W. Huss, Esquire
By Petition filed with the Division of Administrative Hearings on August 13, 1980, Travis Omar Jones, a/k/a Travis Omar Lee, individually and through his mother and next friend, Josie Jones, ("Petitioners") challenges the validity of Rule 10D-49.17(5), Florida Administrative Code, pursuant to the provisions of Section 120.56, Florida Statutes. Final hearing in this cause was scheduled for September 11, 1980, by Notice of Hearing dated August 26, 1980.
At the final hearing, Petitioner called no witnesses in view of the fact that counsel for both Petitioner and Respondent had previously stipulated to the majority of those fact allegations contained in the petition. Respondent called Everett H. Williams as its only witness. The Prehearing Stipulation, with attachments, entered into between the parties was marked and received into evidence as Hearing Officer's Exhibit No. 1.
Petitioner, Travis Omar Jones, also known as Travis Omar Lee, is a child born June 9, 1979, to petitioner, Josie Jones. At the time the child was born, Josie Jones was married to Nelson Jones, Jr. On November 16, 1979, a final judgement was entered in Dade County Circuit Court dissolving the marriage of Josie Jones and Nelson Jones, Jr. The Final Judgment of Dissolution of marriage contained the following provision:
Five (5) children were born of this
marriage, namely: JEREIMIAH, born October 3, 1961, RICKY, born May 5, 1964, FELICIA, born
March 13, 1967, JUSTINE, born December 11,
1968; and CHRISTOPHER, born July 28, 1970.
Travis Omar Jones is not named in the Final Judgment. At some time thereafter, petitioner submitted an application to Respondent to amend the child's birth certificate to name Wilbert Lee, rather than Nelson Jones, Jr., as the child's father. In support of this application, petitioner submitted the aforementioned Final Judgment of Dissolution of Marriage; an affidavit of Petitioner, Josie Jones, reciting that she had been separated from Nelson Jones, Jr. for more than ten months prior to the birth of the child; an affidavit from Wilbert Lee acknowledging that he is the natural father of the child; and an affidavit from Nelson Jones, Jr. acknowledging that he was not the natural father of the child.
By letter dated July 24, 1980, Respondent advised counsel for Petitioner as follows:
I regret you feel you received inaccurate information in regard to the procedure necessary to amend the birth record as you have indicated. However, Health and Rehabilitative Services Rules Chapter
10D-49.17 (5) states "If mother was married to listed father at the time of birth, or marriage terminated within ten
(10) months prior to birth, the paternity can only be changed by order of a court of competent jurisdiction." This clearly indicates that an administrative amend- ment of the birth certificate in question exceeds the authority of our office.
On the basis of its contention that a court order was necessary to amend the child's birth certificate, Respondent refused to grant Petitioner's request to amend the certificate on the basis of the evidence submitted, which did not include such a court order.
The parties stipulated that information contained in a person's birth certificate affects that person's entitlement to public benefits and that the State of Florida has an interest in assuring the accuracy of its public records.
This rules challenge, and a separate proceeding filed pursuant to Section 120.57(1), Florida Statutes, ensued. The formal hearing pursuant to Section 120.57(1), Florida Statutes, has not yet been conducted.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding. Section 120.56, Florida Statutes.
The sole legal issue in this proceeding is whether Rule 10D-49.17(5), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. That rule provides as follows:
If mother was married to listed father at the time of birth, or the marriage terminated within ten (10) months prior
to birth, the paternity can only be changed by order of a court of competent juris- diction.
No agency has inherent rule-making authority, Section 120.54(14), Florida Statutes, and each rule promulgated by an agency must be based upon validly delegated legislative authority. Section 120.54(4)(a), Florida Statutes. In addition, Section 120.54(7), Florida Statutes, requires that:
Each rule adopted shall be accompanied by a reference to the specific rulemaking authority pursuant to which the rule was adopted and a reference to the section or subsection of the Florida Statutes or the
Laws of Florida being implemented, inter- preted, or made specific.
The "specific authority" set forth in the Florida Administrative Code for adoption of Rule 10D-49.17, Florida Administrative Code, is Section 382.20, Florida Statutes. That section, in pertinent part, provides that:
The State Registrar may require such affidavits to be presented and such proof to be filed as he may deem advisable or necessary to establish the truth of the facts endeavored to be made or recorded by the [birth] certificate . . . Certifi- cates filed and accepted under this section shall be admissible in evidence as
prima facie evidence of the facts recited therein with like force and effect as other vital statistics records are received or admitted in evidence. The State Registrar may make and enforce appropriate rules and regulations to carry out this section and to prevent fraud and deception being com- mitted under same. (Emphasis added)
The "law implemented" by the challenged rule is Section 382.21(5), Florida Statutes, which provides:
CORRECTION OF BIRTH RECORDS.--A
person whose birth is recorded in this state may request the State Registrar
to correct any misstatement or errors occurring in said birth record, upon presentation of proof satisfactory to the State Registrar. (Emphasis added)
Petitioners contend that the rule is invalid because it discourages the correction of birth certificates by requiring that an applicant first present evidence to a court of Competent jurisdiction. Petitioners essentially argue that the Legislature intended that the amendment of birth certificates be accomplished administratively, and that Respondent has improperly exercised authority delegated to it by the Legislature by, in effect, redelegating that authority to the judiciary. Petitioners further argue that the rule is particularly inappropriate in situations, such as here, where there is complete agreement as to the facts pertinent to the requested amendment. Under these argue, no more facts could be presented to a court than could be presented to the agency. Finally, Petitioners contend that by requiring submission of a court order to effect amendment of a birth certificate, Respondent has required more than the "satisfactory proof" standard contained in the statute authorizing adoption of the rule.
Where, as here, a statute empowering an agency to adopt rules authorizes that agency to ". . . make and enforce appropriate rules and regulations to carry out this section
. . .":
the validity of regulations
promulgated thereunder will be sustained so long as they are reasonably related to the purposes of the enabling legislation and are not arbitrary or capricious . . Florida Beverage Corp. v. Wynne, 306 So.2d 200, 202 (Fla. 1st DCA 1975)
In Agrico Chemical Co. v. State, 365 So.2d 759, 763 (Fla. 1st DCA 1979) it was held that:
A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic. Adminis- trative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion.
As previously indicated, Respondent in this case has been authorized by the Legislature to enact rules in furtherance of the statutory mandate ". . . to prevent fraud and deception . . ." Section 382.20, Florida Statutes. Petitioners do not contest Respondent's rule-making authority. Instead, Petitioners now contest ". . . the details of the regulation, rather than . . . its purpose and principle." Jax Liquors, Inc. v. Dept. of Business Regulation, Case No. TT-290 (Fla. 1st DCA October 7, 1980) . Under these circumstances, the Court in Jax Liquors indicated that one attacking the validity of a rule ". . . has assumed a heavy burden of proof" because "[t]he time for debate over the wisdom of [the rule] is long past . . ."
Rule 10D-49.17(5), Florida Administrative Code, became effective January 1, 1977. Thus, like the rule under consideration in Jax Liquors:
. . . the presumption of validity
[has gained] added weight from its having laid upon the public record in [the] Florida Administrative Code for several legislative sessions without disapproval or interference by either the legislature
or its Administrative Procedures Committee.
The challenged rule is reasonably related to the purpose of the enabling statute which is designed " to prevent fraud and deception . . ." Section 382.20, Florida Statutes. Further, although not listed as "specific authority" for the rule, Respondent argues that Section 382.16(5)(a), Florida Statutes, justifies its choice of a court order as the sole basis for amending a birth certificate under the facts present in this case. That section of the statute provides that:
If the mother was married at the time
of conception, the name of her husband at such time shall be entered on the certifi- cate as the father of the child, and the surname of the child shall he entered on the certificate as that of the husband, unless paternity has been determined otherwise by a court of competent jurisdiction.
(Emphasis added)
Petitioners argue that Section 382.16(5)(a), Florida Statutes, cannot be used to establish the validity of the challenged rule since it was not listed with the rule in the Florida Administrative Code under the heading of either "specific authority" or "law implemented" This contention is without merit. Respondent is clearly entitled to look to the entirety of Chapter 382, Florida Statutes, to discern overall legislative policy in this area of regulation in order to assure the "reasonableness" of rules which it proposes to adopt. In fact, Respondent would be remiss in the exercise of its discretion if it failed to do so.
In view of the legislative mandate in Section 382.16(5)(a), Florida Statutes, that the name of the father on a birth certificate be that of the person to whom the mother of the child is married, the challenged rule is clearly a valid exercise of delegated legislative authority. Were this not so, it would be possible to accomplish indirectly by way of later amendment to the certificate what could not be directly accomplished at the time the initial certificate is issued.
Accordingly, it is found that, as a matter of law, adoption of the challenged rule was within the authority granted to Respondent by the Legislature; the requirements of the rule are appropriate to the end specified in the enabling legislation; the rule is reasonably related to the purpose of the legislation; and, the requirements of the rule are neither arbitrary nor capricious. As a result, the relief sought by Petitioners should be, and the same is hereby DENIED.
DONE and ORDERED this 31st day of October, 1980, in Tallahassee, Florida.
WILLIAM E. WILLIAMS
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980.
Stephen Maher, Esquire 17555 S. Dixie Highway Suite 101
Steven W. Huss, Esquire Department of HRS Building One, Room 310 1323 Winewood Boulevard
Mr. Carroll Webb Executive Director Administrative Procedures
Ms. Liz Cloud
