STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYSTEMS MANAGEMENT )

ASSOCIATES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 80-241RX

) STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on March 7, 1980, in Room 216, Johns Building, 725 South Bronough Street, Tallahassee, Florida.

APPEARANCES

Petitioner: Clinton H. Coulter, Jr., Esquire

118 South Gadsden Street Tallahassee, Florida 32301

Respondent: George L. Waas, Esquire

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

ISSUES

This case is presented as rules challenges to certain matters allegedly undertaken by the Respondent and is brought in accordance with the authority set forth in Section 120.56, Florida Statutes. Petitioner asserts that there exist two rules within the meaning of Subsection 120.52(14), Florida Statutes, which have not been duly promulgated in keeping with the terms and conditions of Section 120.53, Florida Statutes.

The items which are challenged by this Petition are:

1. The Respondent's Contract Management System Manual (HRSR-0-75-1).

   
   

2. The execution document involved in the award of contract No. 1979 DA-1, entitled "Design and Delivery of Drug Abuse Training

Support Program", which was awarded to the Florida Council for Community Mental Health, Inc.

FINDINGS OF FACT

1. In support of its case the Petitioner presented one item of evidence. This item was received as Petitioner's Exhibit No. 1. The exhibit is a memorandum letter from Robert A. Furlough, Acting Mental Health Program Staff Director, addressed to Abe Lavine and it is entitled "Procedure in the Selection of the Most Appropriate Service Provided for Design Delivery of Training". Notwithstanding the title of the letter, it is in fact a summarization of the steps taken by the Respondent in the award of the "Design and Delivery of Training" element of the "State Training Support Program".

   
   

2. In the course of the letter it discusses the fact that the Contract Management System Manual (HSRS-0-75-1) was utilized; however, that manual was not appended to the correspondence and was not offered in the course of the hearing.

   
   

3. Likewise, the document of execution of the award of Contract No. 1979 DA-1, for the "Design and Delivery Training" element of the "State Training Support Program", if such a document exists, was not offered as evidence in the hearing sub judice.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.56, Florida Statutes.

   
   

5. The Respondent moved to dismiss this case prior to final hearing. As reflected in the transcript of the hearing, that motion was denied.

   
   

6. The Petitioner, by this action, has challenged two items on the basis that those items are rules within the meaning of Subsection 120.52(14), Florida Statutes, which are being utilized by the Respondent, although the Respondent has allegedly failed to comply with Section 120.53, Florida Statutes, dealing with the promulgation of rules.

   
   

7. The items in question are:

   
   

   1. The Contract Management Systems Manual (HRSR-0-75-1).

      
      

   2. The execution document involved in the Award of Contract No. 1979 DA-1, entitled "Design and Delivery of Drug Abuse Training Support Program", which purportedly was awarded to the Florida Council for Community Mental Health, Inc.

      
      

8. Rules challenges of this nature must comply with requirements of proof set forth in Section 120.56, Florida Statutes, and specifically Subsection 120.56(1), Florida Statutes. 1/

   
   

9. Examining the integral parts of the statutory elements of proof in view of the facts presented herein, the Petitioner has failed in all respects in its

challenge to the purported rules. First, there has been no proof that the Petitioner has been substantially affected by the above-described items.

Second, even if standing were shown, there has been no proof that the items in question are rules within the meaning of Subsection 120.52(14), Florida Statutes. Consequently, it is unnecessary to determine if the items in question are invalid exercises of delegated legislative authority; however, even if these determinations were indicated, they could not be made because the Contract Management Systems Manual (HSRS-0-75-1) and the document of execution awarding contract No. 1979 DA-1 entitled "Design and Delivery of Drug Abuse Training Support Program", made to the Florida Council for Community Mental Health, Inc., if it exists, were not presented for review. Without the opportunity to examine those documents, a determination of rules validity cannot be made.

For the aforementioned reasons, the Petitioner's challenge to those items is not persuasive, and the challenge is DENIED. 2/

DONE AND ENTERED this 27th day of March, 1980, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

ENDNOTES

1/ Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is a invalid exercise of delegated legislative authority.

2/ The parties were granted an opportunity to submit Proposed Findings of Fact and Conclusions of Law, and the Respondent offered such a proposal. To the extent that the proposal is consistent with the Order herein, it has been utilized in preparing the Order. To the extent that the proposal is inconsistent with this Order, it is hereby rejected.

COPIES FURNISHED:

Clinton H. Coulter, Jr., Esquire

118 South Gadsden Street Tallahassee, Florida 32301

George L. Waas, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Jerome Novey, Esquire

100 Salem Court Tallahassee, Florida 32301

Leon B. Cheek, III, Esquire Suite 304, Altamonte Centre

251 Maitland Avenue

Altamonte Springs, Florida 32701

Carroll Webb, Executive Director

Joint Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Ms. Liz Cloud Department of State Room 1802, The Capitol

Tallahassee, Florida 32301

Docket for Case No: 80-000241RX

Orders for Case No: 80-000241RX