STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GORDON STEVEN DOW, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1957RU

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on to be heard upon Respondent Department of Health and Rehabilitative Services' (DHRS) Motion To Dismiss proceedings in the above- styled matter. Upon review of Respondent's motion and Petitioner's response to that motion, it is determined that:

1. The petition seeks a determination that certain statements are an unpromulgated rule of DHRS and designates DHRS as Respondent when in point of fact DHRS is prohibited by statute from promulgating the subject rule. The Statewide Human Rights Advocacy Committee (SHRAC) is statutorily created within DHRS, but ". . . shall not be subject to control, supervision, or direction by [DHRS] in the performance of its duties." Section 402.165(1), Florida Statutes (Supp. 1992).

   
   

   (2.) Section 402.165(7)(g)2., Florida Statutes (Supp. 1992), gives SHRAC responsibility to develop and adopt uniform procedures to carry out the responsibilities of the state and local human rights advocacy committees.

   
   

   (3.) Section 402.167(1), Florida Statutes (1991), sets forth limited DHRS rulingmaking authority with respect to SHRAC and local human rights advocacy committees as follows:

   
   

   The Department of Health and Rehabilitative Services shall:

   1. Adopt rules which are consistent with law, amended to reflect any statutory changes, which rules address at least the following:

      1. Procedures by which Department of Health and Rehabilitative Services district staff refer reports of abuse to district human rights advocacy committees;

      2. Procedures by which client information is made available to members of the Statewide Human Rights Advocacy Committee and the district human rights advocacy committees; and

      3. Procedures by which recommendations made by human rights advocacy committees will be incorporated into Department of Health and Rehabilitative Services policies and procedures.

      4. Procedures by which committee members are reimbursed for authorized expenditures.

(4.) Attached to the petition are documents reflecting the alleged agency statement. Those documents are identified as exhibits A, B, C, and D. Exhibit A is a motion filed in a circuit court action by DHRS to seek disqualification of Petitioner in a pending case. Averments of Exhibit A are specific to Petitioner, are not statements of general applicability, and do not comport with the definitional requirements of a "rule" as required by Section 120.52(16), Florida Statutes. Exhibit B is a letter from the chairperson of SHRAC to the chairperson of a local human rights advocacy committee memorializing a SHRAC decision, hence not a DHRS statement. Exhibit C is a memorandum from a hospital administrator to the chairperson of a local human rights advocacy committee conveying notice of claims filed by Petitioner with an attached legal opinion from DHRS legal counsel and, since the memorandum does not reflect any agency statement, the memorandum is not a rule. The attached legal opinion is Exhibit D, a matter specifically exempted from the statutory definition of a rule.

(5). As set forth in the Petition, Petitioner's injury consists solely of his resignation from a local human rights advocacy committee in the face of allegedly unpromulgated rule requirements that attorney members of the committee not represent clients against DHRS. The rule is not alleged to deem such members to be nonmembers in the event of violation. Petitioner's resignation was a voluntary action and Petitioner is consquently unable to show any injury related to the alleged rule.

In view of the foregoing, Respondent's Motion To Dismiss is treated as a Motion For Summary Final Order in accordance with provisions of Rule 60Q-2.030 Florida Administrative Code. As such, the motion is granted, further proceedings are dismissed, and final hearing scheduled for June 2, 1993, is cancelled.

DONE and ORDERED this 10th day of May, 1993, in Tallahassee, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1993.

COPIES FURNISHED:

Gordon Steven Dow

P.O. Box 14224 Tallahassee, FL 32317

Claire D. Dryfuss Department of Legal Affairs PL-01 The Capitol Tallahassee, FL 32399-1050

John Slye General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, FL 32399-0250

Carroll Webb, Exectuve Director Administrativee Procedures Committee Holland Building, Room 120 Tallahassee, FL 32399-1300

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, FIST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THEE 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: 93-001957RU

Orders for Case No: 93-001957RU