STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN KRISHER, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0813RX

)

DEPARTMENT OF LOTTERY, )

)

Respondent. )

)

FINAL ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on Tuesday, March 8, 1988, in Tallahassee, Florida. A transcript of the final hearing has been filed, with a copy of a deposition of the petitioner which was filed as a post- hearing exhibit. The parties have submitted recommended orders containing legal argument.

For Petitioner: Wesley F. White, Esquire

Miami, Florida

For Respondent: Thomas A. Bell, Esquire

Tallahassee, Florida

ISSUE

The issue is whether Department of Lottery Rule 53ER88-16, entitled Handicap Accessibility, is an invalid exercise of delegated legislative authority because it does not require handicap parking spaces at the location of lottery ticket vendors.

FINDINGS OF FACT

1. Dr. Steven Krisher was trained and practiced as a dentist until he developed the disability of multiple entrapment neuropathy, which now has progressed to the point that he can no longer engage in gainful employment, drive an automobile, exercise, or engage in sports. In order to be mobile outside his home he uses a wheelchair. He holds a permit for disabled parking from the Department of Highway Safety and Motor Vehicles.

   
   

2. The Department of Lottery promulgated Rule 53ER88-16, Florida Administrative Code, to replace its prior rule on handicap accessibility. The text of the current rule, which is the subject of this challenge, is as follows:

   
   

   Retailers shall be required to provide accessibility for disabled persons on habitable grade levels according to the following minimum specifications:

   1. A ramp 44 inches wide for changes in level

      in excess of 1/2 inch at doorways. The grade shall be not more than 1 inch vertically in 12 inches horizontally.

   2. A platform at the top of the ramp which is five feet by five feet if the door opens onto the platform, or three feet deep and

      five feet wide if the door does not open onto the platform.

   3. Aisles or pathways from the entrance door to the counter at which lottery tickets are

      sold shall be 44 inches in width.

   4. A clear turn-around space of at least five feet square in front of the counter at which lottery tickets are sold.

   5. An entrance door meeting one of the following specifications:

      1. Single leaf walk-through swinging door, 32 inches;

      2. One leaf of manually operated multiple- leaf swinging door, 32 inches;

      3. Any other walk-through opening, 29 inches.

   6. The Department shall not enter into a retailer contract with any retailer whose application is received by the Department after the date of adoption of this rule until the retailer is in compliance with

      the requirements of paragraphs 1 through 5 above.

   7. All retailers whose applications were received by the Department prior to the effective date of this rule shall, not

      later than 90 days after contracting with the Department, provide the Department with a certificate under oath, affirming that the retailer is in full compliance with the handicap accessibility requirements set forth above.

      This section does not apply to a retail location which has an entrance door threshold more than 12 inches above ground level.

      
      

      CONCLUSIONS OF LAW

      
      

3. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.56(2), Florida Statutes (1987). A challenge to an administrative rule may be filed by any substantially affected person who believes that a rule is an invalid exercise of delegated legislative authority. Section 120.56(1), Florida Statutes (1987). In such a proceeding "all or part of a rule" may be declared invalid. Section 120.56(3), Florida Statutes (1987).

   
   

4. Dr. Krisher is substantially affected by the rule on handicap accessibility and has standing to maintain this rule challenge proceeding.

   
   

5. Counsel for Dr. Krisher made clear at the hearing that there is no portion of the text of Rule 53ER88-16 Florida Administrative Code, which Dr. Krisher wishes the Hearing Officer to declare invalid. The rule sets standards

   which the premises of retailers of lottery tickets must meet in order to make the retail locations accessible to handicapped persons. The rule was enacted to implement Section 24.112(13), Florida Statutes (1987), which directs the Lottery Department to include certain provisions in its contracts with ticket vendors, including that

   
   

   [e]ach retailer shall provide accessibility for disabled persons on habitable grade levels. This subsection does not apply to a retail location which has an entrance door threshold more than 12 inches above ground level. Section 24.112(13), Florida Statutes (1987)

   
   

6. Although the Legislature was concerned that ticket sales locations be accessible to handicapped persons, not every retailer must provide handicap accessibility; those with "an entrance door threshold more than 12 inches above ground level" need not do so. This somewhat oblique clause of the statute apparently means that retailers which are not located on the first floor of a building are not required to be accessible to handicapped persons in order to qualify as lottery ticket vendors.

   
   

7. Dr. Krisher argues that the accessibility specifications found in Rule 53ER88-16 are meaningless if they do not include a requirement that the retailer provide parking for handicapped persons, and a ramp so that a person in the wheelchair can get to the entrance door of the retail establishment. In Dr. Krisher's view, to carry out the intent of the Legislature to make lottery retail locations accessible adequate parking for handicapped persons must be a condition of receiving a contract to be a vendor of lottery tickets.

   
   

8. The Department of Lottery responds that the text of Section 24.112(13), Florida Statutes (1987), does not require all retailers, or those located within

   12 inches of habitable grade level, to provide handicapped parking. There is no Florida statute which requires a certain number of handicap parking spaces in connection with any nongovernmental enterprise. Cf. Sections 553.46, and 255.21, Florida Statutes (1987). Section 316.1955, Florida Statutes (1987), does require a certain number of parking spaces dedicated to the use of disabled persons adjoining buildings housing governmental entities, or in metered or publicly owned and operated parking facilities. Those requirements are inapplicable here, however.

   
   

9. Whatever the merits of Dr. Krisher's position may be as a practical matter, this is not the proceeding in which those interests can be vindicated. Under Section 120.52(8), Florida Statutes (1987), a rule is an invalid exercise of delegated legislative authority if it contravenes a specific provision of the law it implements [Section 120.52(8)(c)], is so vague that it fails to establish adequate standards for agency decisions and therefore vests unbridled discretion in the agency [Section l20.52(8)(d)], or is arbitrary and capricious [Section 120.52(8)(e)].

   
   

10. Dr. Krisher does not maintain that any of the standards contained in Rule 53ER88-16 are arbitrary and capricious or otherwise invalid. His position is that the rule does not go far enough by requiring parking for handicapped persons. No portion of the rule which sets minimum requirements with respect to the width of doorways, the size of the platform at the top of ramps, the width of aisles, and the need for a clear turn-around space, is attacked. A Section

    120.56 proceeding such as this one cannot be used to attack what a rule does not

    say, unless the rule contravenes the statute it purports to implement by removing a requirement which is textually mandated in the statute. Such a rule would contravene its implementing statute and be invalid under Section 120.52(8)(c), Florida Statutes (1987).

    
    

11. Dr. Krisher has a remedy under Section 120.54(5), Florida Statutes (1987), which allows any person who has a substantial interest in an agency rule to petition the agency to adopt or amend a rule. This section provides the procedure to request enlargement of the rule in the manner Dr. Krisher advocates.

CONCLUSION

The petition seeking a determination that Rule 53ER88-16, Florida Administrative Code, is an invalid exercise of delegated legislative authority is denied.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31st day of March 1988.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

(904) 488-9765

Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1988.

COPIES FURNISHED:

Wesley F. White, Esquire WHITE & BROWN, P.A.

710 North Kendall Drive

Suite 100, Southeast Bank Building Miami, Florida 33156

Thomas Bell, Esquire Department of Lottery

250 Marriott Drive Tallahassee, Florida 32304

Rebecca Paul, Secretary Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32304

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

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 88-000813RX

Orders for Case No: 88-000813RX