STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY MONTGOMERY and )

GUSSIE WILLIAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2859RP

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

SERVICES, )

)

Respondent. )

)

FINAL ORDER

On September 10, 1984, a final hearing was held related to the Petitioners' challenge to the Proposed Rule 10C-3.60. This hearing was conducted in Tallahassee, Florida. Charles C. Adams was the Hearing Officer. This final order is being entered following the receipt and review of proposed final orders submitted by the parties. The last proposal was filed with the Division of Administrative Hearings on October 19, 1984. To the extent that the proposals are consistent with this final order, they have been utilized. Otherwise, they are rejected as being irrelevant, immaterial, or contrary to facts found.

APPEARANCES

For Petitioners: Melanie Malherbe, Esquire

Greater Orlando Area Legal Services, Inc. 1036 West Amelia Street

Orlando, Florida 32805

Michael A. Campbell, Esquire Florida Rural Legal Services, Inc.

305 North Jackson Avenue Post Office Drawer 1499 Bartow, Florida 33830

For Respondent: Harden King, Esquire

Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301 ISSUES

The issues concern the issue in challenge to Proposed Rule 10C-3.60, based upon the theory that this proposed rule is an invalid exercise of delegated legislative authority. It is further alleged that Respondent, State of Florida, Department of Health and Rehabilitative Services, has acted in an arbitrary,

capricious and unreasonable manner in the promulgation of the subject rule. It is alleged that the proposed rule illegally conflicts with the Federal Law, 7 CFR, Section 273.22(f)(3). It is alleged that the proposed rule in one of its sections is in violation of Section 120.54, Florida Statutes, and is unconstitutional in that it allows the automatic amendment of the rule without the benefit of rule-making by the agency, based upon future changes that may occur in the federal law. Finally, it is alleged that the proposed rule violates Rule 1S-1.005, Florida Administrative Code, by purporting to incorporate, by reference, materials not filed with the Secretary of State.

FINDINGS OF FACT

1. The Petitioners filed a timely petition challenging the subject rule published by the State of Florida, Department of Health and Rehabilitative Services (HRS). The rule was published at 10 FAW 2323, and was numbered as 10C- 3.60, which would be used as the publication number in the Florida Administrative Code. The publication of the notice of the proposed rule occurred on July 27, 1984 and the Petitioners submitted their challenge on August 10, 1984.

   
   

2. The proposed rule establishes terms under which food stamp recipients throughout the state may be required to participate in "workfare programs;" however, at present, this rule may only be utilized in two counties. This limitation is based upon the fact that necessary funding for the implementation of the terms of the rule has only been appropriated for two counties. Funding is pursuant to the 1984 General Appropriations Act of the State of Florida Legislature. That funding is pursuant to the proviso within the Appropriations Act which states:

   
   

   Of the fund in Specific Appropriations 764, up to two hundred thousand dollars from the

   General Revenue Fund shall be used to continue or establish workfare projects in two counties for recipients of food stamps.

   
   

3. The workfare program idea as expressed in the subject rule is an adjunct of the food stamp program, a joint federal-state program authorized by the Food Stamp Act of 1977, as amended, 7 U.S.C., Section 2011, et. seq. HRS administers the Florida version of the food stamp program based upon the authority set forth in Section 409.275, Florida Statutes. The subject rule is under the claimed authority of Section 409.026 - .028, Florida Statutes.

   
   

4. Petitioners are heads of households and would potentially be affected by the implementation of the workfare program contemplated by the proposed rule. They are residents of Orange County, Florida who are recipients of food stamps. The contingency of the implementation of a workfare program in Orange County, Florida pursuant to the proposed rule has not occurred. HRS has yet to decide which of the two Florida counties it would accept under the financing envisioned by the General Appropriations Act. As a consequence, no determination has been made on the subject of which food stamp recipients will be affected by the terms of the proposed rule. In making its program choice, HRS provided all of the chairpersons of the various County Commissions within the State of Florida with an announcement of the possible availability of funds for the food stamp workfare program. An example of this notice may be found as the Petitioner's exhibit No. 10 admitted into evidence. That notice contemplated that the counties which are interested in participation would express their interest in writing on or before September 1, 1984, through a letter of intent to

   participate in the workfare program. This invitation was dated July 25, 1994. Orange County did not express an interest in keeping with this opportunity and is not one of the two counties that will be the recipient of the funds for administration of the workfare program. The recipients will be chosen from the counties which submitted a written statement of interest. As a result, at present, Petitioners will not be required to abide by the terms of the subject rule. For the Petitioners to be subjected to the rule's terms, additional funding must be appropriated beyond that available for the two counties envisioned by the General Appropriations Act, Orange County must opt for participation in the workfare program and the Petitioners must be residing in Orange County, when the first two events occur.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in keeping with Sections 120.54 and 120.57, Florida Statutes.

   
   

6. In order to successfully challenge the subject rule, Petitioners must affirmatively prove their standing. In determining the sufficiency of that proof, the Petitioners must show that the proposed rule poses specific, real and immediate harm or injury in fact and that the injury is within the "zone of interest" contemplated by the proposed rule. See Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978); Florida Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979), Professional Firefighters of Florida, Inc. v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981); Agrico Chemical Co.

v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2nd DCA 1981); City of Panama City v. Board of Trustees of the Internal Improvement Trust Fund,

418 So.2d 1132 (Fla. 1st DCA 1982) and Florida Medical Association, Inc. v. Department of Professional Regulation, 426 So.2d 12 (Fla. 1st DCA 1983). In this instance, the Petitioners have failed to show that the potential harm to them that may be occasioned by the enactment of this rule is specific, real, and immediate or that they are suffering an injury in fact. Only two counties will be involved in participation at the inception of this rule, and Orange County will not be one of those counties. Therefore, residents of Orange County, such as Petitioners, are not subject to a sufficiently immediate impact to be granted standing to challenge the proposed rule. Any challenge which the Petitioners may offer to the rule would have to be premised upon Orange County's participation in the future, at a time that the Petitioners were still residing in Orange County. That challenge would be pursuant to Section 120.56, Florida Statutes.

In summary, the Petitioners have failed to demonstrate standing to challenge the proposed rule, and it is

ORDERED:

The Petitioners' challenge to proposed rule 10C-3.60 is dismissed for lack of standing.

DONE and ORDERED this 6th day of November, 1984, at Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1984.

COPIES FURNISHED:

Melanie Malherbe, Esquire Greater Orlando Area Legal

Services, Inc.

1036 West Amelia Street Orlando, Fl. 32505

Michael A. Campbell, Esquire Florida Rural Legal Services, Inc.

P.O. Drawer 1499 Bartow, Fl. 33830

Harden King, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Fl. 32301

Liz Cloud, Chief

Bureau of Administrative code Department of State

The Capitol - Suite 1802 Tallahassee, Fl. 32301

Carroll Webb, Executive Director Joint Administrative Procedures

Committee

120 Holland Building Tallahassee, Fl. 32301

David Pingree, Secretary Department of HRS

1323 Winewood Blvd.

Tallahassee, Fl. 32301

Docket for Case No: 84-002859RP

Orders for Case No: 84-002859RP