STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA FARMWORKERS'S COUNCIL, ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-2315

) DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on September 1, 1983, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: W. George Allen, Esquire

116 Southeast Sixth Court Post Office Box 14738

Fort Lauderdale, Florida 33302

For Respondent: Mary Clark, Esquire

General Counsel

Department of Community Affairs 2571 Executive Center Circle, E. Tallahassee, Florida 32301

The issue for determination at the final hearing was whether the Respondent Department of Community Affairs was required to fund the Petitioner Florida Farmworker's Council, Inc., through the Community Services Block Grant Program for fiscal year 1982-83.

At the final hearing: John Burke, Director of Administration, Department of Community Affairs, Clark Black, Executive Director, Florida Farmworker's Council, Inc., Sylvester Davis, Coordinator of Youth Services, Florida Farmworker's Council, Inc., Roland Benson, Resource Mobilization Specialist, Florida Farmworker's Council, Inc., Anita McGruder, Community Food and Nutrition Coordinator, Florida Farmworker's Council, Inc., Shirley Walker, Senior Opportunities and Services Coordinator, Florida Farmworker's Council, Inc., and Freddie Bowe, Chairman, Board of Directors, Florida Farmworker's Council, Inc., testified for the Petitioner. Barbara Pray, formerly employed as a cannery supervisor by the Florida Farmworker's Council, Inc., in Loxahatchee, Florida, Ester Baker, formerly employed as a cannery supervisor by the Florida Farmworker's Council, Inc., in Moore Haven, Florida, Amy deJesus, Local Government Assistance Specialist, Department of Community Affairs, Rosa Morgan, Local Government Assistance Specialist, Department of Community Affairs, Otis

Smith, Internal Auditor, Department of Community Affairs, and Dr. Susan Cook, Community Assistance Coordinator, Department of Community Affairs, testified for the Respondent. Petitioner's Exhibits 1-23 and Respondent's Exhibits 1-17 were offered and admitted into evidence.

Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.

When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or then possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. The Petitioner Florida Farmworker's Council, Inc., applied or funding under the Community Service Block Grant (CSBG) Program for the fiscal year beginning July 1, 1982, and ending June 30, 1983, with the Respondent Department of Community Affairs.

   
   

2. Since the Respondent Department had recently assumed administration of the program from the federal government and neither rules nor funding information was available, the Department entered into an agreement with the Petitioner for interim funding covering a two-month period.

   
   

3. The first month funding of $33,727.25 was released to the Petitioner subject to certain conditions. When the Department determined that the conditions were not fully met, the second month's funding was not released.

   
   

4. Subsequently, as a result of various reviews, the Department determined that the original application was unacceptable, and a determination was made to withhold the remainder of the grant request totaling $370,999.75.

   
   

5. An informal hearing was held in Fort Lauderdale, Florida, and resulted in a Final Order which gave the Petitioner an opportunity to resubmit its application with conditions.

   
   

6. Following an exchange of correspondence and meetings between the parties, the Department agreed to fund the Council to the extent it operated a program in accordance with state and federal lab and pursuant to the program described in its application.

   
   

7. A program review audit was conducted by the Department in June, 1983. In the audit is was concluded that while considerable funds were expended, the Petitioner's program activities were at a level which was unacceptable.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this dispute. Section 120.57(1), Florida Statutes.

   
   

9. The Petitioner's position in this case is that it is entitled to Community Services Block Grant (CSBG) Funds totaling $404,727.00 by virtue of federal and state laws and regulations and general laws of equity. The

   Respondent asserts that the Petitioner is not entitled to funding for the period July 1, 1982, through June 30, 1983, based on its inadequate performance which included a debarment, unresolved audits, programmatic negligence which resulted in day care accidents, a writ of garnishment being filed against the Department of $9,332.36, and loss of funding from another program administered by the Department, the weatherization program.

   
   

10. The State of Florida, through the Respondent Department of Community Affairs assumed Implementation of the Federal Community Services Block Grant (CSBG) on July 1, 1982, pursuant to Chapter 82-226, Laws of Florida.

    
    

11. The Petitioner has been identified by the Department of Health and Human Services as an "eligible entity" for funding under the CSBG program. The term eligible entity is defined at 42 U.S.C. Section 9902(1), as:

    
    

    Any organization which was officially designated as a community action agency or a community action program under the provisions of Section 210 of the Economic Opportunity Act of 1964 for fiscal year 1981, unless such community action agency or community action program lost its designation under Section 210 of such Act as a result of a failure to comply with the provisions of such Act.

    
    

12. Pursuant to 42 U.S.C. Section 9904, each state desiring to participate in the CSBG program is required to certify through its chief executive officer that the states comply with certain conditions including, inter alia, insuring that that a wide range of services and activities having a measurable and potentially major impact on poverty in the community, be provided. See 42

    U.S.C. Section 9904(c)(1)(a).

    
    

13. Nothing, however, in the federal statutes, 42 U.S.C. Sections 9901- 9912, or federal regulations, 45 C.F.R. Parts 16, 74, and 96, mandates that the Respondent Department fund each "eligible entity." While federal law requires that 90 percent of funds allocated to a state be granted to "eligible entities", it does not necessarily follow that each eligible entity must be funded. Decisions specific to the disposition and allocation of CSBG funds were intended to be made by the states... "without federal intervention." See Respondent's Exhibit No. 9. Such position is consistent with the general legislative purpose of the Omnibus Budget Reconciliation Act of 1981 (Public Law 97-35) which established seven block grant programs to replace a large number of previous programs and transferred the primary responsibility for their administration to the states and conferred substantial discretion to the states as to the use of the block grant funds. The Petitioner's contention that all eligible entities must be funded by the state based on the previous years' allotment is inconsistent with the statutory scheme established by Congress and implemented by the Department of Health and Human Services.

    
    

14. Given the wide statutory discretion visited in the states by virtue of the federal laws and regulations, the Petitioner has failed to demonstrate an entitlement to the funds in question, that the Department lacked the authority to determine that the Petitioner's program should not be funded for fiscal year 1982-1983, or that the Department acted improperly in denying funding for fiscal year 1982-1983.

15. Finally, the Petitioner's alternative position, that the Respondent is estopped from denying funding to the Petitioner for the fiscal year 1982-1983 is without merit. The Petitioner has failed to establish that the elements necessary to establish an estoppel exist in this case.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That a Final Order be entered by the Department denying the Petitioner's request for funding in the amount of $370,999.75, which represents eleven months of funding for fiscal year 1982-1983.

DONE and ENTERED this 14th day of December, 1983, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14 day of December, 1983.

COPIES FURNISHED:

W. George Allen, Esquire

116 Southeast Sixth Court Post Office Box 14738

Fort Lauderdale, Florida 33302

Mary Clark, Esquire General Counsel Department of Community Affairs

2571 Executive Center Circle, East Tallahassee, Florida 32301

John M. DeGrove, Secretary Department of Community Affairs

2571 Executive Center Circle, East Tallahassee, Florida 32301

Docket for Case No: 83-002315

Orders for Case No: 83-002315