STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LORISNA PIERRE, DIEUELA ST. ) HILAIRE, and ST. HELENE JOIMELUS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1230RX

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

Consistent with the Notice of Hearing dated April 21, 1986, and the subsequent Order granting a continuance dated April 25, 1986, copies of both of which were forwarded to the parties herein, a hearing was held in this case before Arnold H. Pollock a Hearing Officer with the Division of Administrative Hearings, in Tallahassee, Florida on June 6, 1986. The issue for consideration was whether Respondent's Policy Statement 85-131 and paragraphs 10-12 and 10-18 of Respondent's Manual Number 165-6 constitute improperly promulgated rules which are invalid exercises of delegated legislative authority.

APPEARANCES

For the Petitioner: Charlene Visconti, Esquire

Valory Greenfield, Esquire

Legal Services of Greater Miami, Inc. 1393 Southwest 1st, Suite 330

Miami, Florida 33135

For the Respondent: Harden King, Esquire

Assistant General Counsel Department of Health and

Rehabilitative Services Building One, Suite 407 Tallahassee, Florida 32301

BACKGROUND INFORMATION

On April 7, 1986, Petitioners filed a Petition to Determine the Invality of a Rule challenging paragraphs 10-12 and 10-18, of DHRS Manual 165-6. The basis for the challenge was that the manual provisions in question and the policy statement on which they were based constitute a rule which was never formally adopted pursuant to provisions contained in Section 120.54(1) - (3), Florida Statutes, and is therefore void and unenforceable as an invalid exercise of delegated legislative authority. The Petition was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer and on April 18, 1986, the Director of the Division designated the undersigned as Hearing Officer in the case. The case was originally set for hearing on May 7. 1986,

but due to Petitioner's Motion for a Summary Final Order and the hearing held thereon it was necessary to continue the case to the June 6th date at which time the hearing was held as scheduled.

Petitioners introduced Petitioner's Composite Exhibits I and II but presented no testimony. Respondent presented the testimony of Douglas Glen Berry, an employee of the U.S. Department of Agriculture, and Arleen Claire Gaumer, a Human Services Program Specialist with Respondent DHRS, and introduced Respondent's Exhibits A through D.

Subsequent to the hearing, Petitioners submitted Proposed Findings of Fact which have been thoroughly evaluated considered in the preparation of this Final Order. A ruling on each proposed finding of fact is contained in the appendix attached hereto. Respondent did not submit any post-hearing matters.

FINDINGS OF FACT

1. The Petitioners herein, Lorisna Pierre, Dieuala St. Hilaire and St. Helene Joimelus, are Cuban/Haitian refugees who possess Immigration and Naturalization Service (INS), cards 1-94 which contain the "Cuban Haitian Entrant" stamp thereon. At some time subsequent to their entrance into the United States, the Petitioners applied for food stamps for themselves and their families and were determined to be ineligible. Therefore, the Petitioners are, and it is so stipulated by Respondent, substantially affected by the challenged rule which formed the basis for the denial of their applications.

   
   

2. By letter dated September 16, 1985, Marshall E. Kelly, Program Staff Director for Economic Services within DHRS, issued a letter memorandum, Number 85-131, in which he recites that information received from the U.S. Department of Agriculture indicates that the "Cuban/Haitian Entrant" stamp which appears on certain INS 1-94 cards may be questionable and thereafter outlines certain procedures to be followed when that particular card bearing the questioned stamp is presented by an alien applying for food stamps.

   
   

3. Thereafter, DHRS, on April 1, 1986, promulgated a new Chapter 10 to its Manual Number 165-6U, dealing with Food Stamp Certification which at subparagraph 10-12 defines illegal aliens as persons who have entered the United States unlawfully and declares these individuals to be ineligible for food stamps, and at subparagraph 10-18, defines and describes the various types of 1-

   94 cards which may be presented as identification by aliens applying for food stamps. It goes further to display samples of the various cards in question and indicate which are acceptable and which are not as well as what benefits are attached to each. This chapter in question is of general applicability as it applies to all potential applicants for food stamps within the State of Florida about whom there is or may be some question regarding eligibility based on citizenship or alien status.

   
   

4. This new version of Chapter 10 was, upon promulgation, distributed to all food stamp offices statewide for immediate implementation and is used by food stamp eligibility workers in determining the eligibility of applicants for food stamps.

   
   

5. The chapter as currently written interprets the INS rules displaying, as was stated previously- samples of specific 1-94 cards and the variations thereof that exist, implements, explains and otherwise gives guidelines for the application of the food stamp regulation, and goes further than the actual U.S. Department of Agriculture regulation by suggesting methods of resolution

   regarding questionable information when determining the eligibility of an applicant. In shorts substantial additional information not contained in the basic Department of Agriculture food stamp regulation is contained within the provisions of Chapter 10 of the DHRS manual which is the basic guideline for the implementation of the food stamp regulation as it pertains to aliens within the State of Florida.

   
   

6. In the preparation and implementation of this paragraphs DHRS did not give any public notice of what it intended to do or what it was proposing. No explanation of the purpose and effect of the proposal was publicized or was the specific legal authority authorizing the adoption of the proposals or a summary of the economic impact of the proposal noticed. In facto no notice was given to anyone who would be impacted by the proposal prior to its implementation. No publication was made of the proposed promulgation in the Florida Administrative Weekly or any other public news dissemination source nor was the general public including Petitioners, offered an opportunity to present evidence and/or argument on the issues under consideration.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

   
   

8. By its own regulations- the United States Department of Agriculture has delineated those classes of aliens eligible for food stamps. Included in these are aliens paroled into the United States pursuant to Section 212(d)(5) of the Immigration and Naturalization Act which defines "Cuban/Haitian Entrant" status as a parole status granted pursuant to that subsection.

   
   

9. Respondent, DHRS, has promulgated a change to one of its manuals which Petitioners claim constitutes a rule under current law. Any person substantially affected by a rule may seek administrative determination of its validity by contending that the rule is an invalid exercise of delegated legislative authority under the provisions of Section 120.56, Florida Statutes.

   
   

10. Agencies do not have carte blanche authority to promulgate rules at will. An agency must be delegated authority by the legislature to adopt and promulgate rules within its area of responsibility and this has been done here in Section 570.07, Florida Statutes. Once granted the authority, an agency which desires to adopt a rule must follow specific procedural steps in the preparation and promulgation of such a rule. Included in the requirements under the APA is the requirement for the agency to give notice of its intended action setting forth: (a) a short and simple explanation of the purpose and effect of the proposed rule, (b) the specific legal authority under which its adoption is authorized, and, (c) a summary of the estimated economic impact of the proposed rule on those persons affected by it. See Section 120.54(1), Florida Statutes.

    
    

11. This same statutory provision also requires that the agency give public notice of its proposed rule in the Florida Administrative Weekly giving affected persons an opportunity to present evidence and argument on all issues under consideration.

    
    

12. The issue here is whether the action of the Respondent DHRS in promulgating a new Chapter ID to an already existing manual constitutes the promulgation of a rule as defined in the Florida Statutes. Section 120.52(15) defines a rule as an:

    ". . . agency statement of a general applicability that implements, inter- prets or prescribes law or policy or describes the organization, procedure or practice requirements of an agency

    . . ."

    
    

13. Numerous decisions have been authorized by the courts of this State on the issue of what constitutes a rule. For examples an agency statement interpreting a statute and impacting upon the public with the consistent effect of law is a rule which must be promulgated pursuant to the provisions set forth in the APA. Department Of Revenue vs. U.S. Sugar Corporation, 388 So.2d 596 (Fla. 1st DCA 1980). Further, agency statements of general applicability that purport to create certain rights while adversely affecting others with the direct and consistent effect of law constitute rules. Balsam vs. Department of Health and Rehabilitative Services, 452 So.2d 976 (Fla. 1st DCA 1984).

    
    

14. Here it is clear that Chapter 10 of DHRS Manual 165-6U, dated April 1, 1986, constitutes a rule within the meaning of the provisions of the APA. Clearly, it is designed to be used statewide by all food stamp offices, constitutes an interpretation of the Federal food stamp statute, and grants eligibility for stamps to some while denying eligibility to others. In shorts all the tests set forth by the courts for the determination have been met here.

    
    

15. Once it is determined that the material in question constitutes a rule, the next question for resolution is whether it was properly adopted in compliance with the APA. It is clear that any rule not adopted in compliance with provisions set forth in the APA is an invalid exercise of delegated legislative authority. State of Florida, Department of Health and Rehabilitative Services vs. Florida Project Directors Associations, 368 So.2d 954 (Fla. 1st DCA 1979).

    
    

16. Respondent failed to follow the appropriate promulgation processes set forth in Section 120.56, Florida Statutes, and the sections in question therefore constitute an invalid exercise of delegated legislative authority. It is, therefore:

ORDERED that:

Chapter 10, DHRS Manual 165-6U, dated April 1, 1986, dealing with Food Stamp Certification and the policy statement on which it is based constitutes a rule as defined by Chapter 120, Florida Statutes, and, having not been adopted pursuant to the requirements of said Chapter 120, Florida Statutes, is an invalid exercise of delegated legislative authority.

DONE and ORDERED this 9th day of July, 1986, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1230RX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by Petitioners in this case.

1. Incorporated in Finding of Fact 1.

2. Incorporated in Finding of Fact 1.

3. Incorporated in Finding of Fact 1.

4. Incorporated in Finding of Fact-2.

5. Incorporated in Finding of Fact 3.

6. Incorporated in Finding of Facts 3 and 4.

7. Incorporated in Finding of Fact 4.

8. Incorporated in Finding of Fact 5.

9. Incorporated in Finding of Fact 5. 1O. Incorporated in Finding of Fact 4.

1. Incorporated in Finding of Fact 5.

2. Cumulative and unnecessary.

3. Incorporated in Finding of Fact 6.

4. Incorporated in Finding of Fact 6.

5. Incorporated in Finding of Fact 6.

6. Incorporated in Finding of Fact 6.

7. Incorporated in Finding of Fact 6.

COPIES FURNISHED:

Charlene Visconti, Esquire Valory Greenfield, Esquire Legal Services of Greater Miami, Inc.

1393 SW 1st, Suite 330

Miami, Florida 33135

Harden King, Esquire Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Building 1, Suite 407

Tallahassee, Florida 32301

William Page, Jr.

Secretary

Department or Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Carroll Webb, Exec. Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure such proceedings are commenced by filing one copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 86-001230RX

Orders for Case No: 86-001230RX