STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH GRAINGER, et. al., )

)

Petitioner, )

)

vs. ) CASE NO. 90-5157RP

) 90-5158RP

DEPARTMENT of HEALTH and )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a hearing was held on the Department's Motion to Dismiss this matter for the Petitioners' lack of standing. The hearing was held in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on September 21, 1990.

APPEARANCES

The parties were represented as follows:

For Petitioner: Cindy Huddleston

Florida Legal Services, Inc. 2121 Delta Way

Tallahassee, Florida 32303

For Respondent: Scott LaRue

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Building 1, Suite 407

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUES

The issue at the hearing was whether Petitioners' had standing to challenge Respondent's proposed Rule 10C-1.115, Florida Administrative Code.

PRELIMINARY STATEMENT

On August 24, 1990, pursuant to s 120.54, Florida Statutes, Petitioners filed their Petitions To Determine the Invalidity of Proposed Rule NO. 10C-

1.115. The Petitions were given case Numbers 90-5157RP and 90-5158R. Since the two cases involved essentially the same facts and legal issues, the cases were consolidated by the hearing officer. On August 27, 1990, the Department filed a Motion to Dismiss For Lack of Standing. On September 11, 1990, the Department filed its Memorandum of Law in Support of Respondent's Motion to Dismiss For Lack of Standing. On September 19, 1990, The Petitioners filed Petitioners' Memorandum in Opposition to Respondent's Motion to Dismiss For Lack of Standing.

At the hearing, Petitioner did not present any witnesses and did not offer any exhibits into evidences. Respondent, likewise, did not present any witnessess, but offered one exhibit into evidence. The proposed rule, as well as the governing statutes and regulations were officially recognized by the hearing officer.

FINDINGS OF FACT

1. Petitioners', Joseph and Shelly Grainger, are husband and wife. They have one five year old son, Christopher Grainger.

   
   

2. Joseph Grainger is the primary wage-earner for the family. At present, Joseph Grainger is unemployed due to a back problem. His previous employment was with a parcel shipping company. Due to his unemployment, Mr.Grainger is receiving approximately $653.00 a month in unemployment benefits. He will receive unemployment benefits until December, 1990, when his unemployment benefits terminate.

   
   

3. As a recipient of unemployment benefits, Mr. Grainger must actively seek employment and is considered to be employable by the State.

   
   

4. Proposed Rule 10C-1.11 Florida Administrative Code, implements federal and State law requiring the Department to furnish Aid to Families with Dependent children to indigent families whose principal wage-earner is unemployed (AFDC- UP). The law and the proposed Rule require the principal wage-earner to participate in the Job opportunities and Basic Skills program (JOBS). Florida has mandated that the spouse of the principal wage-earner also participate in the JOBS program, if funds are available.

   
   

5. For AFDC-UP purposes, the Graingers constitute a three person assistance group. The assistance group determines the amount of benefits an applicant1 may receive if the applicant qualifies under the myriad eligibility requirements of the AFDC-UP program. The assistance group also sets the amount of income an assistance group may not exceed and still qualify for AFDC-UP.

   
   

6. In this case, the Graingers' income limit is $294.00. Clearly, because of the amount of unemployment benefits Mr. Grainger is receiving, the Graingers do not now qualify for AFDC benefits and are not now receiving AFDC benefits which will be impacted by the proposed Rule.

   
   

7. Since the Graingers are not now qualified for the AFDC-UP program and Mr. Grainger is employable, they have not established that they will suffer an injury from the proposed Rule's implementation of sufficient immediacy to entitle them to a hearing under s 120.54, Florida Statutes. See Agrico Chemical

v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981); Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, (Fla. 1st DCA 1979); Florida Department of Offender Rehabilitation v. Jerrv, 353 So.2d 1230 (Fla. 1st DCA 1978); and Village Park Mobile Home Association v. State Department of Business Regulation, 506 So.2d 426 (Fla. 1st DCA 1987). Accordingly, the Graingers do not have standing to challenge the proposed rule.

Based on the foregoing Findings of Fact and Conclusions Of Law and being otherwise fully advised in the premises, IT IS ORDERED that the Petitions filed in Case Nos. 90-5157RP and 5158R are dismissed and the Division's files closed.

DONE and ORDERED this 2nd day of October, 1990, in Tallahassee, Florida.

DIANA CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1990.

COPIES FURNISHED:

Cindy Huddleston

Florida Legal Services, Inc. 2121 Delta Way

Tallahassee, Florida 32303

Scott LaRue

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Building 1, Suite 407

Tallahassee, Florida 32399-0700

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW 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 TO BE REVIEWED.

Docket for Case No: 90-005157RP

Orders for Case No: 90-005157RP