STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA PROJECT DIRECTORS ) ASSOCIATION and NORMA RICHARDSON, )

)

Petitioners, )

)

vs. ) CASE NO. 78-1208RP

) THE DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

STATE OF FLORIDA, )

)

Respondent. )

)

FINAL ORDER

Petitioners have filed a "Petition to Determine the Invalidity of Proposed Rule Pursuant to Section 120.54(4), Florida Statutes (1977)". Petitioners are seeking a determination that Rule 10-2, Part VII, which has been proposed by the Department of Health and Rehabilitative Services constitutes an invalid exercise of delegated legislative authority. The case was assigned to the undersigned Hearing Officer by Order entered July 10, 1978. The final hearing was scheduled to be conducted on August 1, 1978, by notice dated July 14, 1978.

APPEARANCES

For Petitioners: Stephen Maher, Esquire

Legal Services of Greater Miami, Inc. 17430 South Dixie Highway

Perrine, Florida 33157

For Respondent: George L. Waas, Esquire and

Charles T. Collette, Esquire Department of Health and

Rehabilitative Services

1323 Winewood Boulevard, Suite 406

Tallahassee, Florida 32301

In their petition, the Petitioners asserted that the proposed rule is invalid because no adequate economic impact statement was filed, and because the rule was not properly published in the Florida Administrative Code. At the commencement of the final hearing, the Petitioners announced that they would not present issues respecting the economic impact statement, and the assertion that the rule is invalid on account of an inadequate economic impact statement has been abandoned.

FINDINGS OF FACT

1. The Respondent is an agency of the State of Florida. The Respondent has adopted a "Departmental Forms Index", which, if it ultimately becomes effective, would be codified into Chapter 10-2.80, Florida Administrative Code.

   The proposed rule purports to set out a list of all forms used by the Respondent in its dealings with the public. By its terms, the rule will not be published in the Florida Administrative Code. Instead, the index would be referenced in the Code as follows:

   
   

   The Departmental Forms Index is hereby incorporated by this rule and made a part of the rules of the Department. Copies of this document and any amendments thereto are available at no more than cost pursuant to the Florida Administrative Code 10-2 and may be obtained from the Office of Assistant Secretary for Administrative Services.

   
   

2. The complete Departmental Forms Index would thus not appear in the Florida Administrative Coda. Copies of the index could be obtained from the Department by request at a cost of ten cents per page. The Index would not otherwise be available to members of the public, and no general distribution of the proposed rule will be made.

   
   

3. The Petitioner, Norma Richardson, is a recipient of benefits under the "Aid to Families with Dependent Children" program and the food stamp program. Both of these programs are administered by the Respondent. Forms are routinely used in the Respondent's dealings with the Petitioner Richardson. Forms are utilized to advise her of any action intended by the Respondent, to solicit information, to apply for further benefits, and for many other purposes. As a recipient of benefits under the programs, the Petitioner Richardson has an interest in having the Forms Index available to her. If the Forms Index were published in the Florida Administrative Code she could obtain access to it at various libraries. If the Index is published by reference, obtaining access to it would be more difficult, and, could cost her ten cents per page.

   
   

4. The Petitioner Florida Project Directors Association is an association composed of the directors of legal services programs in Florida. The Association has represented its members in this proceeding. The Association, and its members, are subscribers to the Florida Administrative Code. The Association's members represent many persons in connection with welfare disputes with the Respondent. The Departmental Forms Index contains forms which the Association's members would need to utilize in representing its clients. If the Index were published in the Florida Administrative Code, the Association's members would have the Index available to it, and any amendments to the Index would regularly be distributed. If the Index is published only by reference, the Associations members would need to purchase copies from the Respondent, and would not regularly receive amendments without making specific requests therefor and paying for them.

   
   

5. It is not a matter of mere speculation that the Association's members will be representing clients who have disputes with the Respondent. One of the Association's members, Legal Services of Greater Miami, Inc., employs forty lawyers and several paralegals, and has represented welfare recipients in many cases.

   
   

   CONCLUSIONS OF LAW

   
   

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

7. The Petitioners have standing to maintain this action seeking a determination that the proposed rule is invalid. The Respondent has contended that the Petitioners' interests in the proposed rule are merely speculative, citing Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (1 DCA Fla. 1978). In Jerry the court concluded that the Petitioner failed to establish that he was actually being subjected to any adverse effects from an existing rule at the time that he filed his challenge to the rule. In the instant case, if the proposed rule becomes effective, both Petitioners will be impacted, because their access to forms which they both utilize, and will continue to utilize, will be curtailed.

   
   

8. Section 120.53, Florida Statutes (1977) requires all agencies to adopt rules which include , "... a list of all forms and instructions used by the agency in its dealings with the public." The rule proposed by the Respondent in this case, the Departmental Forms Index, has been promulgated in accordance with the mandate of Section 120.53. Section 120.55(1)(b) provides that the Department of State shall:

   
   

   Publish in a permanent compilation entitled Florida Administrative Code' all rules adopted by each agency, citing the specific rule making authority pursuant to which each rule was adopted, all history notes as authorized in Section 120.545(8), and complete indexes

   to all rules contained in the Code... Rules general in form but applicable to only one school district, community college district, or county, or part thereof, or to the Florida School for the Deaf and the Blind shall not be published in the Florida Administrative Code. Exclusion from publication in the Florida Administrative Code shall not affect their validity or effectiveness. "

   
   

   Nothing in the statutes directly, or by necessary implication, authorizes publication of a rule in the Florida Administrative Code by reference. The Respondent contends that publication by reference fulfills the publication requirement, citing the Model Rules of Procedure, Rule 28-3.35, Florida Administrative Code, which provides:

   
   

   Any rule, standard, specification, or similar material which is generally available to affected persons may be incorporated in a rule, by reference, in the manner adopted by rule by the Department of State.

   
   

   The Respondent contends that its Forms Index, which is a rule, has been incorporated by reference into the Florida Administrative Code as set out above, and that it is generally available to members of the public in a manner essentially equivalent to that specified in the Florida Public Records Law, Chapter 119, Florida Statutes (1977). The Index will not be generally distributed, and will be available only upon the making of a specific request to the Department. Assuming the validity of Rule 28-3.35, the Respondent's Forms Index cannot be incorporated by reference into the Florida Administrative Code unless it is generally available to affected persons. All records of State agencies are available to members of the public in the manner being utilized by

   the Respondent for its Forms Index. If the framers of the Model Hules anticipated that compliance with the Public Records Act would be sufficient to permit incorporation of a rule by reference, there would be no need for the language "... which is generally available to affected persons..." to be set out in the rule.

   
   

9. The Respondent's proposed adoption of a forms index through publication by reference in the Florida Administrative Code does not comport with the requirements for publication of rules set out in the Administrative Procedure Act and the Model Rules of Procedure. Failure to promulgate a rule in accordance with the requirements of the Administrative Procedure Act renders the rule invalid. State Department of Administration v. Harvey, 356 So.2d 323 (1 DCA Fl. 1978); Department of Environmental Regulation v. Leon County, 344 So.2d

297 (1 DCA Fla. 1977); State Department of Administration v. Stevens, 344 So.2d 290 (1 DCA Fla. 1977).

FINAL ORDER

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

ORDERED:

The Respondent's proposed Departmental Forms Index, and the Respondent's proposed rule which would publish the Departmental Forms Index in the Florida Administrative Code by reference are invalid exercises of delegated legislative authority.

DONE and ORDERED this 29 day of August, 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

George L. Waas, Esquire and Charles T. Collette, Esquire Department of Health and Rehabilitative Services

1323 Winewood Blvd. (Suite 406)

Tallahassee, Florida 32301

Mr. Carroll Webb Executive Director

Administrative Procedure Committee Room 120 Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State Bureau Chief Administrative Code

Room 1802 Capitol Building Tallahassee, Florida 32304

Docket for Case No: 78-001208RP

Orders for Case No: 78-001208RP