STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

FINAL ORDER

A final hearing in this case was held in Tallahassee, Florida on January 14 and 15, 1986, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented by:

Petitioner: Sarah Bohr, Esquire

Jacksonville Area Legal Aid, Inc. 604 Hogan Street

Jacksonville, Florida 32202

Melanie Malherbe, Esquire Greater Orlando Area Legal

Services, Inc.

1036 West Amelia Street Orlando, Florida 32805

William E. Adams, Esquire Cindy Huddleston, Esquire

Legal Services of Greater Miami, Inc. 7900 Northwest 27th Avenue

149 West Plaza

Miami , Florida 33147

(For Petitioner and Intervenor)

Joseph R. Boyd, Esquire 2441 Monticello Drive

Tallahassee, Florida 32303

Chriss Walker, Esquire Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32301 (For Respondent)

The parties waived the requirements of Sections 120.54(4)(c) and 120.56(4), Florida Statues, concerning the time for holding final hearing, and for the issuance of a Final Order in this proceeding. The Department of Health and Rehabilitative Services, Respondent , has stipulated to the standing of Geraldine Laverne Austin, Petitioner, and Phyllis Lowery, Intervenor, both of whom indicated at the hearing, through counsel , that they were voluntarily dismissing and abandoning those portions of their Petitions relating to Respondent's economic impact statement for the rules in question.

This matter involves a determination of the validity of Respondent's Emergency Rule 10CER85-9 (Case No. 85- 4179R) and Proposed Rule 10C-25.06 (Case No. 85-3904R). At the hearing, petitioner called nine (9) witnesses, and introduced nineteen (19) exhibits, while Respondent called three (3) witnesses and introduced three (3) exhibits.

Following Petitioner's case in chief, Respondent moved, ore tenus, to dismiss the Petition, and a ruling was reserved to allow consideration and review of the exhibits and testimony and to incorporate a ruling thereon in this Final Order. A transcript of the hearing was filed on February 3, 1986, and the parties requested additional time to file proposed findings of fact, conclusions of law and memoranda. A ruling on each proposed finding of fact that has been filed is included in the Appendix to this Final Order.

These cases were consolidated for hearing due to the fact that: the Emergency Rule and Proposed Rule in question are substantially similar; all exhibits and testimony of witnesses were offered as to both cases; the facts established at hearing are relevant to both cases; and with the exception of the issue of whether an emergency in the form of an immediate danger to the public health, safety and welfare existed for the adoption of Emergency Rule 10CER85-9 (Case No. 85-4179R) , the legal issues involved in these cases are identical. Therefore, unless

the otherwise indicated, the following findings of fact and Conclusion of Law apply to both cases.

FINDINGS OF FACT

1 . On September 20, 1985, Respondent published notice of Emergency Rule 10CER85-9 in Florida Administrative Weekly (FAW) Volume 11, Number 38, at pages 3645 and 3646. This emergency rule took effect on September 5, 1985, and remained in effect for a period of ninety days. The underlying policy in this emergency rule was initially set forth in a series of policy clearances in 1979 and 1982.

1. As stated in its FAW notice of this emergency rule, Respondent's specific reasons for finding an immediate danger to public health, safety or welfare were that:

   
   

   Under the Federal Law, the State of Florida, the Economic Services Program Office is required to impose sanctions where non- cooperation in the area of Child Support Enforcement has occurred. Recent appellate decisions, specifically Amos v. HRS and

   Williams v. HRS, prohibit the imposition of such sanctions unless and until rules defining non- cooperation and delineating due process procedures have been promulgated. Without

   this emergency rule which defines cooperation, non-cooperation and explains the due process procedures to be accorded clients, the State of Florida is out of compliance with the requirements of 45 CFR 302.21, 45 CFR 232.11 and 45 CFR 232.12. This situation of non- compliance ) jeopardizes the federal funding for the Public Assistance Program which could be reduced up to five (5 percent) percent and could totally deny federal financial participation for the IV-D Child Support Enforcement Program.

   
   

   The First District Court of Appeal invalidated the prior policy clearances since they had not been promulgated as "rules" under Chapter 120, Florida Statutes. Amos v.

   Department of Health and Rehabilitative Services, 440 So.2d

   43 (Fla. 1st DCA 1983); Williams v. Department of Health

   and Rehabilitative Services, 461 So.2d 1004 (Fla. 1st DCA 1984).

   
   

2. Due to the decisions of the First District Court of Appeal in Amos and Williams, supra . Respondent' general counsel was notified in March 1985 by the supervisor of Respondent's Public Assistance Appeal Hearings Office that all reports of non-cooperation based upon blood test results would be summarily reversed until Respondent's policy on non-cooperation was properly adopted as a rule. This meant there would be no more reports of non-cooperation until the rules here in question were adopted.

   
   

3. In relevant part, Emergency Rule 10CER85-9 provides:

   10CER85-9 Cooperation in Obtaining Child Support.

   1. Cooperation Required.

      1. As a condition of eligibility an applicant or recipient of public assistance must cooperate with the Child Support Enforcement Unit in its efforts to collect child support. The requirement to cooperate will be excused only when good cause for refusing to do so is determined to exist in accordance with 45 CFR Parts 232.40 through

         1. The applicant or recipient must cooperate by:

            1. Identifying and helping to locate the parent of a child for whom public assistance is claimed; . . .

         5. Identifying the actual putative father when an earlier name putative father has been excluded by Human Leucocyte Antigen (HLA) or other scientific test.

      2. Cooperation includes but is not limited to the following actions that are relevant to, or necessary for, the achievement of the objectives of locating the absent parent, establishing paternity, establishing a support obligation, and collecting and enforcing a support obligation:

      1. Appearing at an office of the state or local agency or the child support agency as necessary to provide verbal or written information, or documentary or physical evidence, known to, possessed by, or reasonably obtainable by the applicant or recipient;

      2. Providing the name of a putative father who has not been excluded by blood or other scientific test results acceptable as competent evidence by Florida courts;

      3. Appearing as a witness at judicial or other hearings or proceedings;

      4. Providing information regarding the identity or location of the alleged father of the child or attesting to the lack of information, under penalty of perjury; and

      5. Identifying the actual putative father when an earlier named putative father has been

      excluded by Human Leucocyte Antigen (HLA) or other scientific test. . . .

   2. Non-cooperation or failure to cooperate shall be defined to include but not be limited to the following conduct:

      1. Failure or refusal to identify the father of the child, or, where more than one man could, to the best of her knowledge, be the father of the child, to identify all such persons. If the mother identifies one or more persons as possible fathers of the child and asserts that there are no others who could be the father of the child, but Human Leucocyte Antigen (HLA) blood testing shows that none of the persons identified could in fact have been the father of the child, then the mother shall be deemed non-cooperative. If she subsequently identifies another person as a possible father of the child, she shall still be deemed non-cooperative until such person has been given an HLA blood test and is shown by the results to be a possible father of the child.

      2. Failure to appear for two (2) appointments with the IV-D unit without reason or notice;

      3. Providing incorrect information under oath regarding the paternity of the child or the obligation of the responsible parent;

         . . . . .

   3. Reporting Non-cooperation.

1. When an applicant or recipient fails to cooperate with the Child Support Enforcement Unit, the Child Support Enforcement Unit shall notify and provide the Public Assistance Unit with evidence of the act of non-cooperation. Using the evidence provided, the Public Assistance Unit will determine if non-cooperation exists and whether to enforce the Public Assistance eligibility requirements.

2. If the Public Assistance Unit determines that the applicant or recipient has failed to cooperate, the Public Assistance Unit shall provide written notice to the applicant or recipient of the facts which constitute

   non-cooperation, the intended action and the time within which the applicant or recipient must request a fair hearing. . . .

3. If the Public Assistance Unit determines that the applicant or recipient has not failed to cooperate, the Public Assistance

Unit shall not take any action against the caretaker relative. The Child Support Enforcement Unit must dispose of the legal proceedings in the most appropriate and expeditious manner.

1. On November 1, 1985, Respondent published notice of Proposed Rule 10C-25.06 in FAW Volume 11, Number 44, at pages 4184, 4187, 4188.

   
   

2. As stated in the Summary of Proposed Rules, "New Section 10C-25.06 is added to clarify the statutory requirement that recipients of public assistance cooperate in obtaining child support payments from the responsible parents."

   
   

3. In relevant part, Proposed Rule 10C-25.06 is identical to Emergency Rule 10CER85-9 shown above, except that it specifies that an HLA "or other Scientific test" shall be used in finding noncooperation, as defined in subsection 2 of the rule.

   
   

4. The specific statutory authority cited by Respondent for the emergency rule was Section 409.026, Florida Statutes, and the law implemented was Section 409.2572, Florida Statutes. Respondent also cited these sections as statutory authority for the proposed rule, and in addition cited Section 409.2557, Florida Statutes, as the law implemen_ted by the Proposed rule.

   
   

5. Petitioner and Intervenor have been deemed non- cooperative under Emergency Rule 10CER85-9 and have been denied benefits under the Aid to Families with Dependent Children (AFDC) program. Specifically, their own needs have been removed from their AFDC grants, and a protective payee has been appointed to receive the remainder of their AFDC grants. They continue to be denied benefits under this emergency rule. Respondent has stipulated to their standing in these cases.

   
   

6. Respondent did not face any immediate threat of a loss of federal funds prior to the adoption of Emergency Rule 10CER85-9. There had been no critical audit or official warning of sanctions from federal officials due to Respondent's failure to formally adopt the policies embodied in these rules. Therefore, it has not been established that an immediate danger to the public health,

   safety or welfare existed prior to the adoption of the emergency rule. This finding is based on the testimony of Donald H. Hewett, Administrator in the Office of Child Support Enforcement, Robert A. Leeper and Chriss Walker, Attorneys, and Marlin Seay, Director of the Office of Child Support Enforcement, all of whom expressed concern about a "possible" loss of federal funds, but who confirmed that there had been no critical audits or actual warnings from federal officials. The danger of loss of federal funding was not immediate, but was purely speculative.

   
   

7. The Human Leucocyte Antigen (HLA) blood test, referred to in both the emergency and proposed rules, is very definitive in excluding males falsely accused of paternity. Using the HLA test, if a child possesses an antigen which is mot found in the mother or putative father, it is established conclusively, and to a moral certainty, that the putative father has been falsely accused. HLA blood testing is used to exclude, not establish, paternity and is widely used and accepted in this manner within the medical community. This finding is based on the testimony of Dr. G. L. Ryals, Director of Paternity Testing at Roche Biomedical Labs, who was accepted as an expert in paternity testing and evaluation, and Dr. Gary Niblack who was also accepted as an expert in paternity testing.

   
   

8. It is recognized that rare blood types, mutations, and genetic conditions could, in very rare situations, result in false exclusions using the HLA or other blood tests. In addition, human error in blood testing can occur and result in false exclusions. Nevertheless, after considering all of the testimony and particularly the amount of personal experience the expert witnesses have had in using the HLA blood test, it is found that the HLA blood test is reliable, and is also the most accurate test available when used to exclude paternity. It is a reasonable and rational method for excluding paternity.

   
   

9. The rules in question specifically require the use of an HLA "or other scientific test," such as the six red blood cell tests known as ABO, Rh, MNS, Kell, Duffy and Kidd. If an exclusion is obtained by performing these red blood cell tests, some labs conducting the test for Respondent do not perform the HLA test, while others perform the HLA test in every case. The red blood cell

   tests, although not as accurate or reliable as the HLA test, are still a reasonable and widely accepted method of excluding paternity.

   
   

10. Laboratories under contract with Respondent to perform these blood tests follow extensive quality controls, are accredited and licensed. They follow established protocols to minimize errors and issue correct results to the maximum extent possible, and within degrees accepted by the medical community. Respondent generally accepts the lab results and does not employ staff experts to review these test results.

    
    

11. The rate of exclusion in Florida is 28 percent to

    29 percent while the national exclusion rate is approximately 30 percent. Thus, Florida's rate of exclusion is virtually the same as the national average.

    
    

12. Respondent's Child Support Enforcement Office administers the Title IV-D Program while the Public Assistance Office administers the Title IV-A Program of the Social Security Act. Under the applicable federal regulations, as well as the rules in question in this case, it is the Public Assistance Office (IV-A) which imposes sanctions on an AFDC recipient and which can remove those sanctions. The Child Support Enforcement Office (IV-D) can report its finding of non-cooperation, but the imposition of those sanctions rests with the Public Assistance Office.

    
    

13. When sanctions are imposed by the Public Assistance Office they remain in effect indefinitely, or until the recipient becomes "cooperative" by identifying the putative father of her child. The recipient is entitled to a hearing when sanctions are imposed and the decision of the hearing officer assigned by Respondent's Public Assistance Appeal Hearings Office is binding on Respondent but not on the recipient, who may appeal to the District Court of Appeal.

    
    

14. According to Chriss Walker, attorney for the Child Support Enforcement Office, there is a general policy which gives investigators discretion in administering the "good cause" exemption in Subsection (1)(a) and in reporting non-cooperation to the Public Assistance Office. Specifically, if the child support enforcement investigator determines that the mother has been raped or otherwise really does not know the name of the man who is the father

    of her child, she will not be reported as non-cooperative, even if she had previously identified a man who was excluded by the HLA or other scientific test, since this constitutes "good cause" under Subsection (1)(a).

    
    

15. Paternity blood testing is based on the fact that children inherit genetic information from their biological parents. The child's genetic information is compared to the mother's and putative father's using an HLA or other scientific test. An exclusion occurs when testing shows that the child has a genetic marker which neither the mother or putative father possess. Respondent accepts an exclusion in one system as valid and once a red cell exclusion is obtained, Respondent's procedures do not require further FLA testing in all instances.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Sections 120.54(4) and 120.56, Florida Statutes. Respondent has stipulated to Petitioner's and Intervenor's standing.

    
    

    Emergency Rule

    
    

17. Agencies may adopt emergency rules if there is "an immediate danger to the public health, safety, or welfare." Section 120.54(9)(a), Florida Statutes. The simple fact that delay would result from the normal rulemaking process is not enough to warrant adoption of an emergency rule, and agencies seeing to adopt emergency rules must clearly document the unusual conditions giving rise to the emergency. Florida Home Builders Association

    1. Division of Labor, Bureau of Apprenticeship, 355 So.2d 1245 (Fla. 1st DCA 1978).

       
       

18. Because emergency rules may take effect immediately upon filing with the Secretary of State without the opportunity for before the fact input and challenge which is available in the normal rulemaking process, the courts have strictly construed the emergency rulemaking provision of the Administrative Procedures Act to insure that an actual, real and immediate emergency exists then agencies seek to formalize policy in this expedited manner. Krajenta v. Division of Worker's Compensation, Department of Labor and Employment Security, 376 So.2d 1200 (Fla. 2nd

    DCA 1979); Postal Colony Co., Inc. v. Askew, 348 So.2d 338 (Fla. 1st DCA 1977), affirmed 372 So.2d 913 (Fla. 1979).

    
    

19. In this case, Respondent has not established that there was an immediate danger to the public health, safety or welfare which warranted adoption of Emergency Rule 10CER85-9. The danger of the loss of federal funds was, at best, speculative and anticipate, but was not real and immediate. It is commendable that Respondent sought to act before an actual emergency arose which threatened loss of funding, but the normal rulemaking process affords an opportunity for agencies to conform their policies with state or federal requirements in situations such as these.

    
    

20. The fact that the supervisor of Respondent's Public Assistance Appeal Hearings Office notified Respondent's general counsel in March 1985 that reports of non-cooperation would be Summarily reversed until this policy was formally adopted as a rule, does not constitute the kind of immediate danger which would warrant emergency rulemaking. In fact, Respondent waited six months to even promulgate its emergency rule, and the Amos and Williams decisions, which were the bases for this notification of Respondent's general counsel, dated back to 1983 and 1984. Respondent offered testimony at the hearing to explain and justify its delay in acting, but it is clear that this delay could have been avoided by a prompt response to the decision in Amos in 1983. It is well established that an agency's avoidable failure to take timely action cannot justify emergency rulemaking. Let's Help Florida v. Smathers, 360 So.2d 496, 497 (Fla. 1st DCA 1978); Postal Colony Co., Inc. v. Askew, 348 So.2d 338, 342 (Fla. 1st DCA 1977).

    
    

21. Respondent has not carried its burden of proof regarding the extraordinary process of emergency rulemaking because it has not established that there was an "immediate" danger to the public health, safety and welfare and therefore Emergency Rule 10CER85-9 is determined to be invalid.

    
    

22. It should be noted that this issue is not moot despite the fact that this emergency rule has now expired. Petitioner and Intervenor in this case have a real and immediate interest in obtaining an administrative determination of the validity of this emergency rule because they were, and continue to be, denied financial

    benefits because of this emergency rule. Montgomery v. Department of Health and Rehabilitative Services, 468 So.2d 1014, 1016 (Fla. 1st DCA 1985). Although this is not the appropriate forum for them to obtain specific relief due to the application of this invalid emergency rule, they do have an existing interest in determining this emergency rule's validity since they may have other forums available from which they can obtain specific relief based upon this determination. Petitioner's challenge to this emergency rule was timely since it was filed while the rule was in effect.

    
    

23. Since the emergency and proposed rules in this case are substantially identical, the following discussion would also apply to the substantive validity of the emergency rule had it not been found invalid due to the non-existence of an emergency.

    
    

    Proposed Rule

    
    

24. The validity of rules normally will be sustained as long as they are reasonably related to the purpose of the enabling legislation and are not arbitrary or capricious. Florida Beverage Corporation v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975); Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert.den. 376 So.2d 74 (Fla. 1979); Jax's Liquors, Inc. v. Division of Alcoholic Beverages and Tobacco, et al., 388 So.2d 1306 (Fla. 1st DCA 1980); Grove Isle, Ltd. v. State, Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984). As stated by the Court in Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984):

    
    

    The well recognized general rule is that agencies are to be accorded wide discretion in the exercise of their lawful rulemaking authority, clearly conferred or fairly implied and consistent with the agencies' general statutory duties.

    Florida Commission on Human Relations v. Human Development Center, 413 So.2d 1251 (Fla. 1st DCA 1982). An agency's construction of the statute it administers is entitled to great weight and is not to be overturned unless clearly erroneous.

    Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983); Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983). Where, as here, the agency's interpretation of a statute has been promulgated in rulemaking proceedings, the validity of such rule must be upheld if it is reasonably related to the purposes of the legislation interpreted and it is not arbitrary and capricious. The burden is upon petitioner in a rule challenge to show by a preponderance of the evidence that the rule or its requirements are arbitrary and capricious. Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978); Florida Beverage Corp. v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975).

    Moreover, the agency's interpretation of a statute need not be the sole possible interpretation or even the most desirable one; it need only be within the range of possible interpretations. Department of Health and Rehabilitative Services v.

    Wright, 439 So.2d 937 (Fla. 1st RCA 1983) (Ervin, C.J., dissenting); Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982); Department of Health and Rehabilitative Services v. Framat

    Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981).

    . . .

    
    

    See also General Telephone Co. of v. Florida Public Service Commission, 446 So.2d 1063, 1067 (Fla. 1984)

    
    

25. The party contesting the validity of a rule carries the burden of proving by a preponderance of the evidence that the challenged rule is without statutory authority, arbitrary and capricious. Humana, Inc. v. Department of Health and Rehabilitative Services, 469 So.2d. 889 (Fla. 1st DCA 1985); Department of Natural Resources v Sailfish Club of Florida, Inc., 473 So.2d 261 (Fla. 1st DCA 1985). In this case, Petitioner and Intervenor have failed to meet this burden.

26. Respondent has specific statutory authority to adopt Rule 10C-25.06 under the authority of Section 409.2572, Florida Statutes, which provided:

    
    

    409.2572 Cooperation.--Any person who is receiving public assistance for, or who has the care, custody, or control of, a dependent child and who without good cause fails or refuses to cooperate with the department, a program attorney, or a prosecuting attorney in the course of the administration of the

    provisions of this chapter shall have his need removed from the public assistance grant. The department shall appoint a protective payee who shall receive the public assistance grant and use it to purchase the necessities required by the dependent child. The protective payee shall maintain written records of the public assistance receipts and disbursements for review by the department.

    
    

    In addition, Section 409.2557, Florida Statutes, designates Respondent "as the state agency responsible for the (ministration of the child support enforcement program, Title IV-D of the Social Security Act, 42 USC s.1302." See also 42 U.S.C. 602 and Section 409.026, Florida Statutes, which require Respondent to comely with regulations concerning AFDC funding.

    
    

27. These above-cited provisions clearly give Respondent the statutory authority to adopt a rule which defines and delineates cooperation for purposes of child support enforcement. See also 45 C.F.R 232.12. The evidence also establishes that the HLA blood test, as well as other scientific blood tests, are reasonable and reliable means for excluding paternity, and they have been recognized as such by the Courts. Carolyn v. Weeks, 387 So.2d 465 (Fla. 1st DCA 1980); Bailey v. Richardson, 412 So.2d 69 (Fla. 1st DCA 1982); EMVL v. MMC, 462 So.2d 23 (Fla. 4th DCA 1984). Insofar as Respondent places reliance on tee HLA or other scientific blood test, it is carrying out its delegated statutory authority in a reasonable manner. The result of these tests is a possible report of non-cooperation by the Child Support Enforcement Office to the Public Assistance Office , and if the mother disagrees with the Public Assistance Office's decision, she can obtain a hearing from the Public Assistance Appeal Hearings

    Office which is binding on Respondent. In this way individual case considerations can be made. 45 C.F.R. 205.10.

    
    

28. Petitioner and Intervenor argue that the proposed rule sanctions recipients for past conduct and is therefore violative of federal and state requirements. However, this is not the case. Rather the proposed rule authorizes the reporting of non-cooperation when a recipient currently, and perhaps continually, refuses to name a putative father after having previously falsely named a man, under oath. When the mother fulfills her oath to tell the truth by naming a man who is not excluded by blood rest results, she is deemed to have resumed cooperation and her benefits are restored. While the sanctions may be indefinite and remain until the mother fulfills her oath, they are not permanent.

    
    

29. The Proposed rule may appear to place an absolute requirement on a mother to identify the father of her child, even in the case of rape or when the father has failed to, or has falsely identified himself to the mother. Specifically the proposed rule states:

    
    

    1. Cooperation Required

       (a) . . . The applicant or recipient must cooperate by:

       1. Identifying and helping to locate the alleged parent or responsible parent of a child for whom public assistance is received;

       . . . and

       5. Identifying another putative father when an earlier named putative father has been excluded by Human Leucocyte Antigen (HLA) or other scientific blood test.

       * * *

    2. Non-cooperation. Non-cooperation or failure to cooperate shall be defined to include but not be limited to the following conduct:

       1. Failure or refusal to identify the father of the child, or, where more than one man could be the father of the child, to identify all such persons. . . .

          (Emphasis supplied)

          
          

30. Respondent points out, however, that the Child Support Enforcement Office, which has proposed this rule,

    does not impose sanctions, but simply reports non- cooperation to the public Assistance Office, which is the only office authorized to actually impose sanctions. This is confirmed in subsection (3) of the proposed rule. In addition, the rule expressly provides or a "good cause" exemption in Subsection (1)(a), and lack of knowledge or fear of reprisal constitutes good cause. There is discretion in administering this "good cause" exemption.

    In response to questioning Chriss Walker testified:

    
    

    In the hypothetical . . . regarding the lady not being able to identify who the father is for any number of reasons, that is not reduced to any rule, because our investigators out there understand that under those situations, the lady does not have to name anyone. She has cooperated to the best of her ability.

    
    

    If she says, "I was at a party and met five people, and we went off after that and started drinking, and I don't know which of the five people it is," the investigators then know that she has cooperated to she best of her ability, and they do not then report her for noncooperation. There is no need to.

    * * *

    . . . Again, because we recognize that you can't address every hypothetical situation in a rule or regulation or statute, and our people, since the program has been in operation since 1975, have never reported a lady who says, "I simply don't know who the father of my child is."

    
    

    They have never reported her for non- cooperation, so we have never seen that as a problem. (Transcript at pages 374-376)

    
    

31. This case is distinguishable from the recent case of Kearse v. Department of Health and Rehabilitative Services, 474 So.2d 819 (Fla. 1st DCA 1985), where the Court ruled on rehearing that an agency cannot place a construction on a rule which is clearly contrary to the unambiguous language of the rule. Citing Gadsden State Bank v. Lewis 348 So.2d 343,345, n. 2 (Fla. 1st DCA 1977). However, the rules here in question expressly allow a "good cause" exemption and Respondents practice in administering

this policy is to recognize the need for some discretion in administration. In addition, the application of this rule to individual recipients is subject to review by Public Assistance Appeal Hearing Officers, and ultimately by the courts. Respondents construction of its proposed rule is consistent with the express terms of the rule a is reasonable under the circumstances.

Therefore, Petitioner and Intervenor have not sustained their burden in challenging the validity of proposed rule 10C-25.06.

Based upon the foregoing, it is ordered that:

1. Emergency Rule 10CER85-9 is hereby found to be invalid since Respondent has not established that an mediate danger to the public health, safety or welfare existed prior to its adoption, and

   
   

2. The relief sought by Petitioner and Intervenor in their challenge to Proposed Rule 10C-25.06 is hereby denied since they have not sustained their burden of establishing that the proposed rule tacks statutory authority, or is arbitrary, capricious, or otherwise invalid.

DONE and ORDERED this 5th of March, 1986, at Tallahassee, Florida.

DONALD D. CONN

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 5th day of March, 1986.

APPENDIX

DOAH CASE NOS. 85-3904R and 85-4179R

Ruling on Petitioner and Intervenors Proposed Findings of Facts:

1. Adopted in Findings of Fact 1, 5, 9.

2. Adopted in Finding of Pact 9.

3. Rejected as irrelevant and not based on competent substantial evidence.

4-5 Adopted in Finding of Fact 16.

6-8 Rejected since this is a legal conclusion and is otherwise not based on compete substantial evidence.

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Adopted as irrelevant and unnecessary.

4. Rejected Fact of Fact 2.

5. Rejected as irrelevant and unnecessary.

6. Adopted in Finding of Fact 3.

7. Adopted in Finding of Fact 2.

16-17 Rejected as a summary statement of position, irrelevant,

and unnecessary.

1. Adopted in Finding of Fact 10.

2. Reject as irrelevant and unnecessary.

3. Adopted in part in Finding of Fact 1, 9, but otherwise

   rejected as irrelevant and unnecessary

4. Adopted in Finding of Fact 9.

22-23 Adopted in part in Finding of Fact 16, 17 but otherwise

rejected as irrelevant and not based on competent substantial evidence.

1. Adopted in Finding of Fact 3, 17.

2. Adopted in Finding of Fact 17.

   
   

3. Rejected as irrelevant and unnecessary.

27-29 Rejected since this is a summary statement of position.

30 Rejected as irrelevant and unnecessary.

31-92 Adopted in Finding of Fact 19.

33 Adopted in Finding of Fact 14.

1. Adopted in part in Finding of Fact 11-13 but otherwise

   rejected as simply a summary of selected testimony.

   
   

   Although Respondent has not complied with Rule 22I- 6.31(3), Florida Administrative Code, in submitting its Proposed Findings of Fact by failing to include citations to the record, specific rulings thereon have been made as follows:

   
   

   For Case No. 85-3904R

   
   

   1. Adopted in Finding of Fact 9.

   2. Adopted in part in Finding of Fact 16.

   3. Adopted in Finding of Fact 5.

4-5 Reject as a summary statement of Respondent's interpretation of the rule.

1. Adopted in Finding of Fact 17.

2. Rejected as a statement of position.

3. Adopted in Finding of Fact of 11. 9-10 Adopted in Finding of Fact of 13.

1. Adopted in part in Finding of Fact 14.

2. Rejected as irrelevant and unnecessary.

3. Adopted in Finding of Fact 14.

14-19 Reject as a summary statement of Respondent's interpretation of the rule, and as otherwise not

based on

competent substantial evidence. 20-21 Adopted in Finding of Fact 16.

1. Adopted in Finding of Fact 17

2. Adopted in Finding of Fact 9.

3. Rejected as irrelevant and otherwise not based on competent substantial evidence.

4. Adopted in Finding of Fact 16.

5. Adopted in part in Finding of Fact 12, 13 but otherwise

   rejected as not based on competent substantial evidence.

6. Rejected as a summary statement of position.

For Case No. 85-4179R

1. Not a proposed Finding of Fact.

2. Adopted in Finding of Fact 1.

3. Adopted in Finding of Fact 2.

4-6 Rejected as irrelevant and unnecessary.

1. Adopted in Finding of Fact 2.

2. Adopted in Finding of Fact 3.

9-10 Rejected as irrelevant and unnecessary.

1. Rejected as contrary to Finding of Fact 10, and otherwise

   irrelevant.

2. Rejected as irrelevant and unnecessary.

3. Adopted in Finding of Fact 1.

4. Adopted in part in Finding of Fact 1, and rejected in part

as contrary to Finding of Fact 9.

COPIES FURNISHED:

William Page, Jr., Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32301

Sarah Bohr, Esquire

Jacksonville Area Legal Aid, Inc. 604 Hogan Street

Jacksonville, Florida 32202

Melanie Malherbe, Esquire

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

Orlando, Florida 32805

William E. Adams, Esquire Cindy Huddleston, Esquire

Legal Services of Greater Miami, Inc. 7900 Northwest 27th Avenue

149 West Plaza

Miami, Florida 33147

Joseph R. Boyd, Esquire 2441 Monticello Drive

Tallahassee, Florida 32303

Chriss Walker, Esquire Department of 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, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

A PARTY WHO IS ADVERSELY AFFECTEDLY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL RELIEF 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 BE REVIEWED.

Docket for Case No: 85-003904RP

Orders for Case No: 85-003904RP