STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALEXIA MOLINA, YOLANDA GONZALEZ,)

and YANARI GONZALEZ, by and ) through YOLANDA GONZALEZ, )

)

Petitioners, )

)

vs. ) CASE NO. 93-2623RU

)

DEPARTMENT OF HEALTH AND )

REHABILTIATIVE SERVICES, )

)

Respondent, )

and )

)

SOLANGE DANIEL, )

)

Intervenor. )

) KIMBERLY JOHNSON, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5698RU

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Valory Greenfield, Esquire

Legal Services of Greater Miami, Inc.

225 Northeast 34th Street, Suite 300 Miami, Florida 33137

Paulette Ettachild, Esquire

Legal Services of the Florida Keys 600 White Street

Key West, Florida 33041

Cindy Huddleston, Esquire Florida Legal Services 2221 Delta Court

Tallahassee, Florida 32303

For Respondent: Katrina M. Saggio, Esquire

Department of Health and Rehabilitative Services

Building 6, Room 466

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Respondent, Department of Health and Rehabilitative Services (Department/HRS), has a policy, not yet promulgated as a rule, of failing to follow allegedly binding judicial precedent (called henceforth the "non-acquiescence rule").

PRELIMINARY STATEMENT

This cause arose upon the filing of a rule challenge by the above-named Petitioners, pursuant to Section 120.535, Florida Statutes, in which it is charged that the Department has a policy of not following binding judicial precedent and that that policy amounts to an unpromulgated rule of non- acquiescence in judicial decisions. After the conducting of discovery and initially continuing the proceeding by agreement of the parties, with concomitant waiver of the 30-day time limit for hearing, the cause came on for hearing as noticed.

The parties filed a prehearing stipulation at the outset of the hearing, containing various stipulated facts which are incorporated in this Final Order. The Petitioners presented no witnesses, but entered 14 exhibits into evidence. The Respondent presented the testimony of five witnesses and had 21 exhibits admitted into evidence. Two additional exhibits were submitted after the hearing by the Respondent, with the leave of the Hearing Officer and the agreement of the Petitioners.

Upon conclusion of the hearing, the parties ordered a transcript of the proceedings and elected to file proposed final orders. After an agreed-upon extension of the time for filing those pleadings, the parties timely submitted them. The proposed findings of fact submitted by the parties are treated in this Final Order and again by specific ruling in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Department is an agency of the State of Florida charged, inter alia, with administering and regulating the Aid to Families with Dependent Children benefit program (AFDC) and the so-called "food stamp" program, by which it is an agent of the federal agency which funds 100 percent of the food stamp benefit program, the United States Department of Agriculture, Food Nutrition Service (hereinafter "FNS"). The Petitioners are resident, non-citizen, aliens, who are political asylum applicants and who have, as yet, not been granted AFDC benefits and, in some cases, food stamp benefits. They allege that they are similarly situated to applicants for such benefits involved in court decisions cited hereinbelow and that the precedential effect of such decisions should be

   applied to grant them benefits. They assert that the Department's failure to grant benefits based upon those court decisions, in essence, amounts to the espousal of a policy of non-acquiescence in those court decisions, which policy is an "unpromulgated rule" and, therefore, in violation of Sections 120.535 and 120.56, Florida Statutes.

   
   

2. The Department customarily views appellate court decisions as precedential in nature and applicable to persons similarly situated to the litigants in the relevant court decisions. The Department has no established policy which it follows when reviewing court decisions. Decisions are reviewed by the Department's legal counsel, its policy section, the assistant secretary for economic services, the relevant federal agency, the secretary of the Department, and ultimately, even the legislature. The Department does not have a policy of failing to comply with court decisions.

   
   

3. The court decisions, the applicability of which, and the Department's position with regard to which is at issue in this case are: Department of Health and Rehabilitative Services v. Solis, 580 So.2d 146 (Fla. 1991); Zayas v. Department of Health and Rehabilitative Services, 598 So.2d 257 (Fla. 1st DCA 1992); Chandler v. Department of Health and Rehabilitative Services, 593 So.2d 1183 (Fla. 1st DCA 1992); Alexander v. Department of Health and Rehabilitative Services, 590 So.2d 1081 (Fla. 1st DCA 1991); and Wistedt v. Department of Health and Rehabilitative Services, 551 So.2d 1236 (Fla. 1st DCA 1989). These decisions will be referenced in abbreviated form throughout the remainder of this Final Order.

   
   

4. Although the Solis decision was decided in May of 1991, the Department has not yet extended it to other asylum applicants in Florida. Initially, the Department had concerns about what direction the legislature would want it to take regarding funding benefits in the manner envisioned in the Solis decision. The Department sought legislative direction by posing three options to the legislature: (1) Amend the statute relied upon in the Solis decision; (2) Authorize the Department in proviso language to amend Section 4.1.I.b. of the AFDC state plan to insure federal financial participation; (3) Expand the benefits to asylum applicants through 100 percent state general revenue funds, without federal financial participation. The legislature did not choose any of those options and instead passed proviso language which prohibits the Department from amending Section 4.l.I.b. of the AFDC state plan and providing permissive language allowing the Department to extend benefits from general revenue, state funds to individuals similarly situated to Solis.

   
   

5. The purpose of the AFDC state plan is to determine and establish the state's policies for which it receives federal financial participation funds. Those portions of the AFDC state plan which directly affect the public are promulgated in rules. The Department can have a benefits-related policy which is not embodied in the state plan, however, such a policy would not receive federal participatory funds in its support but rather would have to be funded with 100 percent state-generated, general revenue funds. Although the Department can change its policies based upon a court decision, it cannot receive federal financial participation if the federal agency involved determines that the court decision was not in accordance with federal statutory, regulatory, or decisional law.

6. The Department has not extended the Solis decision to other asylum applicants because of unresolved issues, such as how to separate the funds involved and account for them; the programing of the Florida computer system necessary to accomplish the result; addressing various concerns expressed by "legal services"; the diversion of staff and resources necessitated by the devastation caused by Hurricane Andrew; the determining of the effect of the Solis decision on other programs, if implemented; determining how to capture the information required to be reported to federal agencies; constant agency reorganization with changes in departmental leadership; determining whether the state general revenue asylum applicant program would be different from the federal AFDC program, and determining for which other benefits asylum applicants might be eligible. The funding of asylum applicant benefits, such as those involved herein, from 100 percent state generated general revenue is a new and unique program for the Department. A rule has been drafted to address the Solis decision situation, but concerns have been raised by the representatives of asylum applicants ("legal services") which have delayed the rule-making process. The Department has taken steps to implement the Solis decision, however, including the drafting of rules, developing change requests for the Florida computer system, preparing training material and discussing how to account for the different funding of similar programs (i.e., federal AFDC funding vs. general revenue funded AFDC-like assistance, if Solis type asylum applicants are to be funded without changing the AFDC state plan).

   
   

7. Although there are still unresolved issues surrounding implementation of the asylum applicant program, the Department intends to, and is moving ahead, with implementation. It has not established an exact date when it will extent the benefit of the Solis decision to other asylum applicants, similarly situated, but it intends to implement that decision and expects that the implementation will take approximately three to six months.

   
   

8. The decision in Zayas v. Department of Health and Rehabilitative Services, 598 So.2d 257 (Fla. 1st DCA 1992), has not been implemented or given precedential effect. This is because the United States Department of Agriculture's Food and Nutrition Service (FNS) made a determination that the court decision conflicts with federal law as interpreted by that federal agency.

   
   

9. The Department does not intend to extent the benefit of the Zayas decision to others similarly situated because it has complied with the federal agency directive to the Department not to change its policy concerning food stamp entitlement. The decision in Zayas is based upon an interpretation of a federal statute, as stipulated by the parties. The federal agency that administers the food stamp program (FNS) has refused to fund implementation of the Zayas decision because that agency has opined that that decision was not in accordance with the relevant federal regulations. The FNS also concluded that Ms. Johnson, one of the Petitioners, was not, in fact, eligible for food stamps as a "separate household".

   
   

10. The food stamp program is 100 percent federally funded by the FNS, and the Department's policies are, by necessity, based upon the federal regulations in Title VII, Code of Federal Regulation (CFR). The Department thus bases its policy regarding determination of separate household status, for food stamp purchases, on those food stamp regulations appearing in Title VII, CFR. The Department's policies regarding the food stamp program and separate household status determinations are embodied in its rules. Specifically, Rule 10C- 1.1.201(4), Florida Administrative Code, incorporates the federal food stamp regulations.

11. If the Department fails to notify the FNS of a pending lawsuit, then the FNS will not participate financially for that individual involved in that lawsuit. If the Department notifies FNS of a food stamp lawsuit, the FNS would provide benefits to the plaintiff if eligibility is determined. If the FNS determines that a court decision is contrary to the relevant federal law and regulation, it will not fund implementation of that program on a statewide basis, regardless of whether it was notified in advance of the pending lawsuit.

    
    

12. The Department has considered various options concerning application of court decisions regarding federal food stamp policies to individuals similarly situated, including attempting to enjoin the federal agency or trying to get cases filed in federal court, consideration of suing the federal agency for injunctive relief, and seeking legislative direction and assistance. The Department has also considered the option of requesting the legislature for authority to amend Section 4.1.I.B. of the AFDC state plan.

    
    

13. The First District Court of Appeal held in Wistedt v. Department of Health and Rehabilitative Services, 551 So.2d 1236 (Fla. 1st DCA 1989), that Hearing Officers must consider all evidence admitted without objection in a de novo hearing. The only testimony or evidence on this subject shows that the Department's Hearing Officers will consider any evidence admitted without objection. The court in the Wistedt decision determined that the Hearing Officer had taken actions which conflicted with his obligations under the Code, specifically the Department's current Rule 10-2.057(3), .060(1), and .066, Florida Administrative Code, by improperly failing to consider certain evidence at hearing. That situation, however, involved the Hearing Officer in one case, with which the Wistedt court was confronted. That situation in the Wistedt decision, coupled with the dearth of any evidence in this proceeding that the Department is not complying with that court decision, and the fact that none of the Petitioners alleged that they are similarly situated to the appellant in the Wistedt case, shows that, indeed, the Department is complying with the Wistedt decision. There is no evidence of any policy of non-compliance therewith. The Wistedt decision did not require a change in the Department's rules to implement it because it simply involved an application of the Department's current rules.

    
    

14. The decision in Chandler v. Department of Health and Rehabilitative Services, 593 So.2d 1183 concerned application of the Department's Rule 10C- 1.085(5)(c), Florida Administrative Code. That provision provided:

    
    

    Any person no longer receiving AFDC will be requested to make repayment at the rate of 5 percent of the person's net monthly income unless repayment at that rate would result

    in available income to the person's assistance group of less than 95 percent of the AFDC payment standard for the size of the assistance group.

    
    

    The Chandler decision dealt with the question of "undue hardship", as it relates to determination of the rate a person no longer receiving AFDC must reimburse the Department for overpayment. The court in that case held that the Department's application of the above-mentioned rule created a conclusive presumption of no undue hardship, because the appellant in that case was not given an opportunity to rebut the presumption in an administrative hearing. The court did not find the presumption in the rule itself, but in the fact that the

    Hearing Officer in that case did not consider the appellant's evidence indicating hardship. The court stated that conclusive presumptions violate due process if they cannot be rebutted in a fair manner.

    
    

15. After the Chandler decision, the Department promulgated Rule 10C- 1.900, Florida Administrative Code. This rule amended the rule referenced first above, which had been addressed in the Chandler decision and thus allowed persons no longer receiving AFDC benefits to negotiate a repayment schedule.

    The new rule further provides that any individual affected by the rule can request an administrative hearing. Thus, an individual has the opportunity to rebut any conclusive presumption in a fair manner. These changes were adopted specifically in order to comply with the Chandler decision. Its repeal of Rule 10C-1.085, addressed in the Chandler decision, was effective December 7, 1993. The repealed language was replaced with Rule 10C-1.900(4)(a)3., Florida Administrative Code, which states that "any person no longer receiving AFDC shall negotiate a repayment agreement with the Department". The Department also added Rule 10C-1.900(4)(a)4., Florida Administrative Code, which states that "any person affected by the preceding subparagraphs 10C-1.900(4)(a)1.-3. is entitled to a departmental review or hearing pursuant to Sections 120.57, F.S., and 409.285, F.S."

    
    

16. The reasons an individual may request such a hearing is a non- exhaustive list and, therefore, the reasons, including the reason of extreme hardship at issue herein, are not placed on the notice of the right to a hearing. The Department did not give any guidance or written procedures to Hearing Officers concerning extreme hardship situations because it felt to do so would create a conclusive presumption concerning extreme hardship, prohibited in the Chandler decision.

    
    

17. In recoupment efforts concerning AFDC overpayments, HRS personnel automatically apply no lower than a rate of 5 percent in order to recover an overpayment from a recipient. That recoupment rate and recoupment is only suspended if the recipient requests a fair hearing within 30 days from the date of the overpayment notice, which notifies them of the right for a hearing and the time constraint. Rule 10C-1.900(4)(a), Florida Administrative Code, establishes an initial statement as to recovery rates and then provides for an individual to request a hearing. The Department does not specifically inform recipients that they may be able to obtain a recovery rate of less than 5 percent by the fair hearing process nor does it specifically inform them that Hearing Officers are not required to apply a minimum 5 percent recovery rate. The notice of adverse action concerning recoupment of overpayments merely provides a general statement of the right to request a hearing in order to contest the proposed adverse action.

    
    

18. Section 409.335, Florida Statutes, gives the Department the authority to establish a policy and cost-effective rules to be used in the recoupment of overpayments. The Department's own Hearing Officers consider hardship on an individual basis as it is raised when it is appropriate. They interpret the Chandler decision and make their own determination concerning what amounts to extreme hardship and whether that is present in a given case pending before them. Some cases have been remanded by Hearing Officers to the local department level to evaluate the extreme hardship issue in a given case.

    
    

19. The case of Alexander v. Department of Health and Rehabilitative Services, 597 So.2d 1081 (Fla. 1st DCA 1991), holds that the Department may not qualify its offers to provide assistance in obtaining client verification concerning food stamp entitlement to those situations in which it is difficult

    or impossible for the household involved to provide the desired verification of its own volition. The case thus stands for the proposition that where verification by the proposed food stamp recipient is incomplete, the Department has an obligation to offer and provide assistance without the qualification that it be difficult or impossible for the household to do it on its own. The Department is of the view that at the time of the entry of the Alexander decision, its policy and rule were already consistent with the proposition espoused by the court in that case. Upon further review, however, it elected to amend its rule to more clearly meet the requirement of the Alexander case. The Department thus amended its rule in compliance with the Alexander decision at Rule 10C-1.602, Florida Administrative Code. The notice that that final rule had been filed was published on January 14, 1994 in the Florida Administrative Weekly at Volume 20, No. 2. Petitioners' counsel stipulated that if that proposed rule became a rule, the Department would then be in compliance with Alexander. Consequently, that being the case, the Department is in compliance with the Alexander decision.

    
    

20. In order to better insure that the Zayas decision and other decisions involving food stamp eligibility are complied with and that funds to provide benefits for successful food stamp applicant/litigants are available from the FNS, the Department, through its general counsel's office, by memorandum dated November 12, 1993 to the district legal counsel has required them to notify the economic services staff attorney of the Department of any food stamp eligibility lawsuits which are filed in order that the legal staff of the Department can insure that FNS is apprised of such lawsuits in accordance with 7 CFR 272.4(e). Because of this action, if rulings favorable to food stamp applicants are made by a court, federal benefits will be available to such a prevailing litigant.

    
    

21. Petitioners, Yolanda and Yanari Gonzalez, are asylum applicants, who are indigent. They were denied AFDC benefits because of their immigration status by written notice, which held them to be ineligible aliens and not entitled to such benefits. Petitioner, Alexia Molina, is over the age of 21, single, without minor children, and suffers from severe spondylolistheses. She is appealing her denial of disability benefits by the Social Security Administration.

    
    

22. Petitioner Molina does not customarily purchase and prepare food for home consumption since she eats all of her meals in restaurants. She sometimes eats in the same restaurant as her brother. On such occasions, she orders her own meal and gets a separate check for it. Although she and her brother get separate checks, he pays for both checks for such restaurant meals. She is not on a special diet, but both her parents with whom she resides are diabetics.

    
    

23. Although Petitioner Molina's parents cannot eat sweets and sugars, they can still eat practically all of the foods that Petitioner Molina eats. Petitioner Molina's brother lends her financial assistance funds for some of her expenses and pays her share of the rent and utilities and for her personal items.

    
    

24. Petitioner Molina considers herself to have a separate social life from her parents, with separate friends and separate activities from her parents and other family members. She considers herself separate from her family. Although she considers herself separate from her family, she is not really separate, as she relies financially upon her brother and is dependent upon her mother for transportation and for certain elements of her personal care, such as dressing, grooming, and bathing. She does not purchase and eat her food separately from her brother. She is not the sole occupant of her home, and her

    parents did not move in with her. In fact, she has never lived separate and apart from her parents. Petitioner Molina's doctor did not order to live with someone else. She has always lived with her parents.

    
    

25. Intervenor, Solange Daniel, is an indigent AFDC recipient. She was charged with AFDC overpayments based upon an HRS error on or about June 14, 1993.

    
    

26. Intervenor Daniel has a utility expense obligation, which her brother pays for her, and a rent obligation of $475.00 per month, of which her sister pays $100.00 for her. Intervenor Daniel's total expenses are $405.00 per month. Her actual income and resources are $487.00 in public assistance and $465.00 in food stamp benefits. Therefore, her available monthly cash assistance after expenses is $82.00. Thus, there are sufficient unencumbered funds to support recoupment of the overpayment of AFDC benefits at the rate of 5 percent. Intervenor Daniel's financial situation has not been shown to rise to the level of extreme hardship. She was also advised of her right to request a hearing and did request a fair hearing to appeal the decision concerning her AFDC overpayment recoupment.

    
    

27. Petitioner, Kimberly Johnson, is over the age of 21, is single, without minor children, and suffers from multiple sclerosis. She receives disability benefits and must use a wheelchair to travel great distances. She also uses a walker for ambulation. Petitioner Johnson on occasion has needed and received assistance from her mother in getting and out of the bathtub. She lived independently, however, and received food stamp benefits herself until her multiple sclerosis worsened and her doctor had to recommend that she move in with a family member, which she did.

    
    

28. Petitioner Johnson is not on a special diet, although she eats a reduced fat, low calorie diet recommended by her physician. She has thus lost

    195 pounds. She sometimes does not adhere to her diet, however, and has abandoned it at various times. She uses the same refrigerator and pantry as her mother but labels her own food with her name. She socializes separately from her mother and considers herself independent from her mother and considers her personal life to be separate from her mother's. Pursuant to requirements of the FNS, Petitioner Johnson was not deemed entitled by the Department to be in a separate food stamp household from her mother for separate food stamp entitlement purposes.

    
    

29. The Department did not follow the Zayas decision in processing Petitioner Johnson's food stamp case. It processed her case as directed by the federal agency charged under federal law with regulating and enforcing the food stamp laws and requirements and with 100 percent of the funding responsibility for such benefits.

    
    

30. Petitioner Johnson and her mother share a single, common residence with a common entrance and common household living areas. Petitioner Johnson shares a kitchen with her mother and they prepare food with the same utensils, cook on the same stoves and ovens, and store food in the same areas. The food stamp office of the Department made a determination as to whether Petitioner Johnson and her mother actually live together based upon the fact that they share the same household facilities referenced above and pay one utility bill for the house, which account is in Petitioner Johnson's mother's name and charged to her mother.

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding, pursuant to Sections 120.57(1), 120.535, and 120.56, Florida Statutes.

    
    

32. The Petitioners have the burden of proving by a preponderance of the evidence that the relief sought in the Petition should be granted. Young v. State, 567 So.2d 778 (Fla. 1st DCA 1990); DOT v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

33. Sections 120.56(2) and 120.535(2)(a)1., Florida Statutes, imposes a threshold requirement that any person challenging an agency rule or non-rule policy must establish that he or she is "substantially affected" by that rule or non-rule policy. In order to support the proposition that they are "substantially affected", the Petitioners must show a direct injury in fact of "sufficient immediacy and reality" to the Petitioners, or a real and direct threat of such injury. Fraternal Fire Fighters of Florida v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981); Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230, 1235 (Fla. 1st DCA 1978). If the Petitioners meet this threshold requirement, they must then show, pursuant to Section 120.535(2)(a), Florida Statutes, as follows:

    
    

    1. That the statement constitutes a rule under s.120.52(16) . . .;

    2. That the agency has not adopted the statement by the rule making procedures provided in Section 120.54.

       
       

34. Pursuant to Section 120.56, Florida Statutes, the Petitioners must prove that the rule is a "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes.

    
    

35. The Petitioners have not proven that the Department has an unpromulgated so-called "non-acquiescence rule". Therefore, it has not been demonstrated that the Department has violated either Section 120.535 or Section 120.56, Florida Statutes. The Petitioners have alleged that the Department has a policy of refusing to apply binding judicial precedent to other similarly- situated individuals. Thus, in order to be substantially affected by the Department's alleged non-acquiescence, the Petitioners must be similarly situated to an individual in a previous court decision to have suffered any direct injury from this alleged policy. Thus, even if there were such "non- acquiescence policy" of not complying with the court decisions discussed in this Final Order and at issue herein, the Petitioners would have no standing since they would not be substantially affected unless they can show they are similarly situated to the individuals, facts and circumstances involved in those precedential court decisions.

    
    

36. The Petitioners cite five court decisions in support of their position that the Department has a policy of refusing to comply with binding judicial precedent: Department of Health and Rehabilitative Services v. Solis, 580 So.2d

    146 (Fla. 1991); Zayas V. Department of Health and Rehabilitative Services, 598 So.2d 257 (Fla. 1st DCA 1992); Chandler v. Department of Health and Rehabilitative Services, 593 So.2d 1183 (Fla. 1st DCA 1992); Alexander v. Department of Health and Rehabilitative Services, 590 So.2d 1081 (Fla. 1st DCA 1991); and Wistedt v. Department of Health and Rehabilitative Services, 551 So.2d 1236 (Fla. 1st DCA 1989). The Petitioners claim that Petitioner Molina

    and Petitioner Johnson are similarly situated to the appellant in the Zayas case and that Intervenor Daniel is similarly situated to the appellant in the Chandler decision. The Petitioners, however, did not demonstrate that they are sufficiently similarly situated to the Zayas or the Chandler decision appellants.

    
    

    Petitioners Molina and Johnson Status Compared to Zayas

    
    

37. In the Zayas decision, the First District Court of Appeal held that the Department must view the issue of household composition in cases such as the Zayas situation as a factual matter. See, Zayas, 598 at 259. Whether Petitioners Molina and Johnson are similarly situated to Zayas is a factual matter and requires a factual determination. In Zayas, the court found the stipulated facts to be compelling.

    
    

38. Appellant Zayas is a totally disabled adult, who values her independence and was the sole occupant of her home until her health worsened and her doctors instructed her that someone needed to live with her in case of an emergency. Her parents then moved in with her to act as live-in medical attendants only as a result of the doctors' orders. Zayas lives a separate life from them, financially, socially, and otherwise, and they do not live together as one economic or social unit. Zayas was ordered to be on a separate diet and eats entirely different foods from her parents. She does not share her meals with her parents, shops for her own food, does not share it with anyone, and keeps it in a separate pantry in her own room and separate in the refrigerator in the home. She pays for her own rent, utilities, food, personal and household items, and operates as a completely separate entity from her parents.

    
    

39. Petitioner Molina, on the other hand, is not a totally disabled adult. Her disability application was denied by the Social Security Administration, although it is currently on appeal. Petitioner Molina was not the sole occupant of her home, and her parents did not move in with her. In fact, she has never lived separate and apart from her parents, as opposed to the situation with Zayas, who was previously independent until ill health resulted in her parents having to move in with her to care for her. Additionally, Petitioner Molina's doctors have never ordered that she live with someone, unlike the situation with Zayas.

    
    

40. Petitioner Molina's brother paid all of her expenses, including her food, rent, utilities, and personal items, while Zayas paid all of those expenses herself out of her own funds. Although Petitioner Molina has stated that her brother "lends" her the money, in essence, they were living together as one economic unit. She even stated in her deposition that he is financially supporting her. Petitioner Molina eats meals together with her brother, while Zayas did not share meals with anyone. Additionally, Petitioner Molina's brother does not appear to have any special dietary requirements since they eat meals together. Zayas had a special diet, while Petitioner Molina does not.

    
    

41. Petitioner Molina testified in her deposition that her parents have a special diet. However, this is not a totally separate diet, as her parents are diabetic, and their meals are, therefore, regulated only as to portions, with the additional exception that they cannot eat sweets. The only difference in her diet and her parents' diet thus is as to the size of portions and as to the sweets. It has therefore not been demonstrated that Petitioner Molina must eat entirely separate food from her family, and her diet and that of her parents is predominantly the same. Additionally, Petitioner Molina cannot be a completely

    independent person or household entity if she must depend on her mother for transportation, to help her to bathe, groom, and dress herself, which is the case, and if she depends on her brother for financial support, which she does.

    
    

42. Petitioner Johnson is also not similarly situated to Zayas. While Ms. Zayas had a special dietary requirement, Petitioner Johnson's doctor simply thought it was "a good idea" that she eat a reduced calorie, low-fat diet. Most doctors suggest such diets for their patients. These dietary requirements are evidently not deemed by Petitioner Johnson nor her physician to be strictly required for her health and safety since she stated that she has gone on and off this diet at various times.

    
    

43. Petitioner Johnson moved into her mother's home at her doctor's suggestion, while Zayas' parents moved in with her as a result of her doctor's orders. Petitioner Johnson and her mother share a common residence and the other facilities referenced above for general living and food preparation purposes. They live in a single-family home. None of the utilities or other home-upkeep-related bills are Petitioner Johnson's responsibility, rather, they are in her mother's name and chargeable to her mother's accounts. Although Petitioner Johnson labels her food with her own name, she stores it with her mother's food. Zayas, however, stored her food separately from her parents and prepared it separately.

    
    

44. Additionally, Petitioner Johnson testified that she is not capable of living alone. She cannot, therefore, be considered completely independent, as she is not physically capable of living alone. Accordingly, the facts demonstrate that Petitioners Molina and Johnson are not similarly situated to Zayas. Because they are not similarly situated to Zayas, even if there were a purported "non-acquiescence rule", Petitioners Molina and Johnson have and could have suffered no direct injury from such a "rule" because they are not similarly situated. Thus they should not be entitled to benefits, regardless of whether the Department has a "non-acquiescence rule" or, instead, uniformly and routinely applies such precedential court decisions to persons similarly situated.

    
    

    Intervenor Daniel's Status Compared to the Chandler Situation.

    
    

45. The facts in the Chandler decision and Intervenor Daniel's situation are also different. Chandler was no longer receiving AFDC assistance in the situation in the Chandler case, whereas Intervenor Daniel is currently an AFDC recipient. In the Chandler case, the First District Court of Appeal only dealt with Rule 10C-1.085(5)(c), Florida Administrative Code, which only applied to individuals no longer receiving AFDC. Applicable rule provisions for an individual receiving assistance and one who is no longer receiving assistance are different. Additionally, Rule 10C-1.085, Florida Administrative Code, is no longer used by the Department and has been replaced by Rule 10C-1.900, Florida Administrative Code.

    
    

46. In the Chandler case, the court stated that former Rule 10C- 1.085(5)(c), Florida Administrative Code, created a conclusive presumption that extreme hardship did not exist because it could not be rebutted in a fair manner. See, Chandler at 1184. However, this rule was amended by the Department, providing that any individual affected by the rule could request a fair administrative hearing.

47. In the Petition to Intervene, Intervenor Daniel claims that she was not told that she could get a reduced rate of recoupment if she could demonstrate financial hardship. However, Section 409.335, Florida Statutes, provides notice that recovery will not be forced if it is demonstrated that extreme hardship would result. Additionally, she was also advised of her right to request a hearing when she was notified of her overpayment and her obligation to repay. See, Respondent's Exhibit 15, in evidence. Rule 10C-1.900(4)(a)4., Florida Administrative Code, also provides notice that she may request a hearing. Thus, Intervenor Daniel was given a fair opportunity to rebut the existence of no undue hardship. There is no proof that she was not permitted the opportunity to demonstrate extreme hardship.

    
    

48. The First District Court of Appeal found strong evidence of extreme hardship in the Chandler situation because her monthly income was $550.00, while her corresponding expenses were $885.98, plus $75.00 per month for child support, and an additional $51.50 per month in child support arrearages. Her financial situation was much different than that of Intervenor Daniel. There is less evidence of extreme hardship because Intervenor Daniel's expenses do not exceed her income. After expenses, Intervenor Daniel has $82.00 left, which is sufficient to support the 5 percent recoupment rate. Intervenor Daniel has provided no proof of any other expenses which would thus result in an extreme- hardship situation. Thus, her factual situation is quite different from that of Chandler, and they are not similarly situated. Because Intervenor Daniel is not similarly situated to Chandler, she has suffered no direct injury from the alleged "non-acquiescence rule", even if such a rule existed, for the reasons explained above.

    
    

    Absence of a "Non-Acquiescence Rule"

    
    

49. The Petitioners allege that the Department has a policy of not complying with binding judicial precedent. This alleged "non-acquiescence rule", however, does not meet the definition of a rule, as defined in Section 120.52(16), Florida Statutes. That provision states:

    
    

    [E]ach agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency or includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term does not include: (a) internal management memoranda which do not affect either the private interests of any person or any plan

    or procedure important to the public and which have no application outside the agency issuing the memorandum.

    
    

50. The basic premise of this rule challenge shows that it is not the type of challenge contemplated by the Legislature in enacting Sections 120.535 and 120.56, Florida Statutes. The Petitioners are contending, in essence, that the Department has a policy of not complying with court decisions in the process of establishing its policies concerning certain benefit entitlements. They, thus, in effect, are challenging a purported policy alleged to be used to make policy. There is no provision in Chapter 120, Florida Statutes, requiring the Department to have an established policy to be promulgated as a rule which describes how

    the Department determines what a policy is going to be or how it is to be arrived at. Sections 120.52(16), 120.535, and 120.56, Florida Statutes, taken together only require that policies which directly affect private interests and are of general applicability must be promulgated into rules. The manner in which the Department determines what its policies are going to be is akin to internal management memoranda, thought processes of agency personnel or attorney work product, all of which thought processes of management, attorney work product, internal management memoranda, and other informal information are bits and pieces of data which do not themselves affect the private interests of individuals. It is the policy which such bits and sources of information result in, which affect the private interests of individuals and under the above statutory authority must be duly provided for in rules. It is only when such informal information from such varied sources culminates in a unified policy on a given subject matter, which is to be generally applicable to persons or interests similarly situated, that such a policy statement is of the type which must be promulgated into a rule in due course, in accordance with the provisions of Section 120.535, Florida Statutes.

    
    

51. The proof in this case culminating in the above Findings of Fact does not establish that the Department has any generally applicable "non-acquiescence rule" to the effect that it does not apply precedential court decisions to persons or entities similarly situated. The testimony, rather, demonstrated in a preponderant manner that it is the Department's position, intent, and practice that it always seeks to follow relevant court decisions.

    
    

52. Although the Department will consider whether there is adequate funding and whether a federal agency involved has directed the state agency not to change its policies, there are no established criteria that the Department considers or will consider when reviewing a court decision. Because there are no established criteria, there is no statement of general applicability concerning the application of precedential court decisions. Consequently, there being no such statement of general applicability concerning the applicability of court decisions, there can be no unpromulgated rule to that effect and, therefore, no violation of Section 120.535, Florida Statutes.

    
    

53. The testimony and evidence has established that funding may be a consideration when the Department is evaluating the applicability and effect of a court decision. This consideration arises from the Florida Statutes, as the Department is not permitted to spend funds which it does not have. Thus, if a court decision would require an additional expenditure of funds, the Department needs to seek legislative direction in that regard. This does not necessarily mean that the Department will not change its policies or will refuse to follow such a court decision.

    
    

54. Examples of such limitations in the statutes are Section 216.241, Florida Statutes, which provides that no state agency may initiate or commence a new program or make changes in a current program that require additional financing, unless the funds have been specifically appropriated by the Legislature. Other such statutes are found at Section 216.311, Florida Statutes, which prohibits contracting in excess of the amount appropriated and makes it a misdemeanor to violate that provision. Section 216.192, Florida Statutes, provides that expenditures are authorized only in accordance with legislative authority. Section 215.221, Florida Statutes, provides that all appropriations shall be maximum appropriations. Thus, the Department is bound by law to consider the effect of a court decision on its budget and budgetary processes.

55. The Department also considers whether the federal agency involved has instructed the Department not to change its policy. This is a valid concern for the Department, as the Secretary of the Department has the authority and responsibility to ensure that the purpose of the Department is fulfilled in accordance with both state and federal laws, rules and regulations. See, Section 20.19(f), Florida Statutes. Additionally, under the supremacy clause of the Federal Constitution, "the states have no right to interfere or, by way of compliment to the legislation of Congress, to prescribe additional regulations and what they deem auxiliary provisions for the same purpose." See, 16 AMJUR 2d, Section 15. Thus, if a federal agency determined that a state court decision is incorrect as a matter of federal law and regulation, the federal laws and regulations would take precedence over the state court decision where the federal statutes and regulatory provisions regulate the subject matter, as in the case of food stamp entitlement.

    
    

56. These two considerations, concerning how the Department carries out the business of reviewing court decisions for their applicability, demonstrates that the manner in which it reviews and makes decisions concerning the applicability of court opinions is not arbitrary and capricious but, rather, is a reasoned process. See, Dravo Basic Materials Co., Inc. v. Department of Transportation, 602 So.2d 632, 634 (Fla. 2d DCA 1982).

    
    

57. Further, the Petitioners have provided no proof of an invalid exercise of delegated legislative authority, because there is no proven, non-acquiescence rule or policy. Additionally, the agency has not been shown to be arbitrary and capricious in interpreting those court decisions, as demonstrated by the above Findings of Fact. Sufficient evidence has been provided by the Respondent that the Department does, in fact, comply or seek to comply with judicial precedent.

    
    

58. The Petitioners also maintain that the AFDC state plan is an agency statement. The AFDC state plan, however, merely contains the information that is submitted to the Federal Department of Health and Human Services as a basis for determining federal financial participation in the state AFDC program. See,

    45 CFR., Section 201.2. Those policies set forth in the state plan that actually affect private interests of individuals, including AFDC payment standards, are embodied in rules, according to the unrefuted testimony submitted by the Department, specifically that of Ms. Sally Lenton, the Program Administrator.

    
    

59. The fact that Section 41Ib. of the AFDC state plan states that the Department does not extend the benefit of a court order to individuals similarly situated does not mean that the Department does not comply with court decisions. It merely means that if a state court decision is issued which the federal agency determines conflicts with the federal regulations, the Department would not be able to receive federal funding or financial participation to fund any policy change as a result of the court decision. Any policy change thus would have to be funded from state general revenue. The Department could still and, in fact, will change its policies to comply with court decisions.

    
    

60. The Legislature instructed the Department in the appropriations acts in the 1992 and 1993 legislative sessions not to alter Section 41Ib. of the AFDC state plan. See, 92-326 and 93-185, Laws of Florida. Thus, the Department is prevented from changing its AFDC state plan by act of the Legislature; and the changing of Section 41Ib. would be an invalid exercise of delegated legislative authority if such were done.

    Solis Decision Issue

    
    

61. The testimony at hearing has demonstrated that the Department did not disregard the court decision in Department of Health and Rehabilitative Services

    v. Solis, supra. When the Department was faced with that decision, it sought clear direction from the Legislature and was given permission to provide benefits to individuals similarly situated to Solis and was also directed not to change the above-referenced section of the AFDC state plan.

    
    

62. The Department then faced a number of problems in implementing that decision. One of the chief problems was that this was the first such program in the state. Such a unique program required extensive, careful planning. Secondly, the Legislature gave permission to the state to implement the Solis decision but did not provide the additional funds necessary. Also, many personnel changes and changes in leadership and agency reorganization created many problems during this period of time for the Department in extending the benefits to individuals so situated. The Florida computer system required additional programming to accomplish the desired result and further, the Department had to assure that the federal government was not charged for such recipients. It had to determine how to separately account for the necessary funds in its funding accounting system. The implementation process was also delayed by the advent of Hurricane Andrew and its devastation, which necessitated most of the staff crucial to implementing the Solis decision being sent to Miami to assist with the various issues involved with disaster relief. Finally, "Legal Services" raised concerns about the rule that the Department drafted to implement the Solis decision and program, which has further postponed implementation.

    
    

63. These problems which postponed implementation of the Solis decision were justified under Section 120.535, Florida Statutes, in that it provides that rule making shall be presumed feasible unless related matters are not sufficiently resolved to enable the agency to address a statement by rule making and that rule making shall be presumed practical unless detail of precision in the establishment of principles, criteria, or standards for agency decisions is not reasonable under the circumstances. All of the problems that the Department faced are examples of related matters that were not sufficiently resolved to enable the Department to initiate rule making.

    
    

64. What is important to bear in mind here is that the Department never made any decision, much less a decision and statement of general applicability that it would not implement the Solis decision but. Rather, it intends, and has intended essentially ever since it became aware of the decision, to implement it. It has not been implemented as yet because of other factors causing delay. Whether or not it can be said that these delay factors are wholly justified or might be subject to redress in a collateral civil proceeding, the fact remains that the history of the Department's efforts to implement the Solis decision, as delineated in the above Findings of Fact, shows that it had no policy of non- acquiescence in that decision.

    
    

65. The Department has, in fact, decided to implement the decision and has gone so far as to draft a proposed rule. It is not failing to acquiesce with the Solis decision and thus its actions with regard to that court opinion do not constitute evidence of a generally-applicable rule of non-acquiescence with court decisions.

    The Zayas Decision Issue

    
    

66. In Zayas v. Department of Health and Rehabilitative Services, supra., it was held that the Department must view the issue of household composition as a factual matter for determining food stamp benefit eligibility. The Department was instructed, however, by the federal agency, FNS, to comply with federal regulations regarding separate household status and not to change its policies with regard thereto. Food stamp benefits are 100 percent federally funded through the FNS, and there are no such benefits provided by the state or state funds. Therefore, if FNS requires the Department to comply with federal regulations and states that a court order is not in compliance with those regulations, the Department has no option but to comply with that direction, otherwise, funding would be denied by FNS for any such eligibility group.

    
    

67. The Department's actions regarding the Zayas decision are reasonable under the Supremacy Clause of the United States Constitution. Under the Supremacy Clause, "the states have no right to interfere or, by way of compliment to the legislation of congress, to prescribe additional regulations and what they deem auxiliary provisions for the same purpose." 16 AMJUR 2d, Section 15. Additionally, state courts are bound by the acts of the federal agencies. Tacoma v. Tax Payers of Tacoma, 357 U.S. 320. See also, 2 AMJUR, Section 212. Thus, if the federal agency determined that a state court is incorrect, the federal laws and regulations which that agency is charged with interpreting and enforcing would supersede and take precedence over state court decisions.

    
    

68. Although the Department has not changed its rule to comply with the Zayas decision, the Department is in compliance with more-recently decided cases regarding separate household status in the United States District Court for the Middle District of Florida. In Mitchell v. Madigan, Case No. 92-41-CIV-FTM-10D, the Federal District Court for the Middle District of Florida interpreted the same federal statute that the First District Court of Appeal interpreted in the Zayas case. In the Mitchell decision, the court concluded that Congress' intent was reasonably clear that closely related individuals should be presumed to compose one household to reduce the potential for fraud, waste, manipulation, and the high administrative costs of individual case-by-case investigation.

    See, Mitchell, at page 7. The court further stated that the "legislature's recognition of the potential for mistake and fraud and cost-ineffectiveness of case by case verification of claims that individuals ate as separate households unquestionably warrants use of general definitions in this area." Id.

    
    

69. The court in Mitchell cited the United States Supreme Court's decision in Lyng v. Castillo, 477 U.S. 635, 641 n.6 (1985), which stated that Congress could validly "limit the availability of the 'purchase and prepare food separately' rule to those most likely to actually be separate households, although living together with others for reasons of economy or health (i.e. [distant relatives and] unrelated persons.)" Id. at 8. The court found that a grandmother-grandchild relationship is not distant or unrelated. Id.

    Therefore, as in the case of Petitioner Johnson or Petitioner Molina, if a grandmother-grandchild relationship is not too distant, neither is a mother- child relationship for purposes of determining the issue of "separate households".

    
    

70. The court found that to allow the plaintiffs even opportunity to prove that their closely-related unit does not prepare meals together would be contrary to the intent of Congress that food stamp administrators have presumptions relieving them of the responsibility to investigate the familial

    constitution and food preparation of every applicant. The court determined that Congress' intent was clear, that the Secretary's interpretation was far from unreasonable, and was not arbitrary or capricious.

    
    

71. Because the Department's policies are consistent with the Mitchell decision, the Department is complying with the judicial precedent regarding separate household status.

    
    

72. Additionally, although the Department has not specifically stated in rule that it does not comply with the Zayas decision, its food stamp policies directly affecting the public are embodied in rule. Specifically, Rule 10C- 1.201(4), Florida Administrative Code, incorporates the food stamp regulations, including the regulations at 7 CFR. 273.1(a)2, which state that the adult children and their non-elderly/non-disabled parents are to be presumed to live together. Thus, the Department is not failing to acquiesce with binding judicial precedent regarding separate household status. The Zayas decision is not sufficient evidence of a generally-applicable policy of non-compliance with court decisions, as the Department is complying with the federal agency's requirements and the requirements enunciated by the federal court in the Mitchell decision.

    
    

    Chandler Decision Issue

    
    

73. In Chandler v. Department of Health and Rehabilitative Services, supra., the First District Court of Appeal held that the Department's application of Rule 10C-1.085(5)(c), Florida Administrative Code, created a conclusive presumption of no undue hardship, because the appellant was not given an opportunity to rebut the presumption in the administrative hearing. This rule provision stated as follows:

    
    

    Any person no longer receiving AFDC will be requested to make repayment at the rate of

    5 percent of the person's net monthly income unless repayment at that rate would result in a variable income to the person's assistance group of less than 95 percent of the AFDC payment standard for the size of the assistance group.

    
    

    The court did not find the presumption in the rule itself but in the fact that the Hearing Officer did not consider the appellant's evidence indicating hardship. The court stated that conclusive presumptions violate the due process clause if they cannot be rebutted in a fair manner. Id.

    
    

74. After the Chandler decision, the Department promulgated Rule 10C- 1.900, Florida Administrative Code. This rule amended the previous rule cited above, which had been addressed in the Chandler decision. The new rule provided that persons no longer receiving AFDC are allowed to negotiate a repayment agreement for overpayments. Rule 10C-1.900(4)(a)3., Florida Administrative Code. The rule further provides that any individual affected by the rule, whether or not they receive AFDC, can request an administrative hearing. Thus, an individual has the opportunity to rebut any conclusive presumption in a fair manner. These changes were adopted in order to comply with the Chandler decision.

75. The Department's interpretation of its own Rule 10C-1.900, Florida Administrative Code, is entitled to great weight and should not be overturned unless clearly erroneous. Franklin Ambulance Service v. Department of Health and Rehabilitative Services, 457 So.2d 580 (Fla. 1st DCA 1984); Eager v. Florida Keys Aqueduct Authority, 587 So.2d 771 (Fla. 3d DCA 1991). The Department cannot provide guidance on extreme hardship determinations to Hearing Officers as this might create a conclusive presumption and, therefore, violate the Chandler decision. In Chandler, the court, in effect, stated that this creation of presumptions was reserved solely to the courts or the legislative branch. Hearing Officers are permitted under the quasi-judicial authority under Section 120.57, Florida Statutes, to interpret the applicable case law, such as the Chandler decision, and the applicable rules, in making determinations concerning the existence of extreme hardship. The Chandler decision does not stand for the proposition that the Department cannot create any presumption. In McDonnell v. Department of Professional Regulation, 663 So.2d 660 (Fla. 1st DCA 1991), it was held by the court that an executive agency lacks implied or inherent power to fashion or apply a legal presumption for application in an administrative proceeding in the absence of specific authority in a statute or in the Constitution. If the Department does have authority in the statute, it may create such a presumption. Section 409.335, Florida Statutes, permits the agency to establish policies and cost-effective rules to be used in the recovery of overpayments. Thus, the Department has the authority to establish some presumptions concerning that subject, just not conclusive presumptions.

    
    

76. Thus, it has not been established that the Department has failed to acquiesce with the Chandler decision. Indeed, it did amend its rule in order to comply with that case. There is no reason for the Department to promulgate any alleged non-acquiescence policy concerning Chandler as a rule because it is already complying with that decision and has no "non-acquiescence policy", which is unpromulgated in violation of Section 120.535, Florida Statutes.

    
    

    Wistedt Decision Issue

    
    

77. The First District Court of Appeal held in Wistedt v. Department of Health and Rehabilitative Services, supra., that Hearing Officers must consider all evidence admitted without objection in a de novo proceeding. The Department's own Hearing Officers consider all evidence admitted without objection in their hearings, according to unrefuted testimony culminating in the above relevant Findings of Fact. Thus, the requirements of the Wistedt case are being met, and the evidence does not provide any demonstration that the Department is following a policy of non-acquiescence with that decision. Even if Department Hearing Officers were not complying with the Wistedt decision, such non-compliance would still not demonstrate a policy of non-acquiescence, since it would not constitute an agency policy statement of general applicability and does not meet the definition of a rule in the first place.

    
    

78. There was no reason for the Department to amend its rule regarding evidence since the court in the Wistedt case based its decision on the Department's already-current Rule 10-2.057(3), .060(1), and .066, Florida Administrative Code. The court determined that the Department Hearing Officer's action in the Wistedt case had merely conflicted with the Hearing Officer's obligation under those rules. The Petitioners have not provided any evidence which can establish that the Department is not complying with this court decision. The Petitioners have not alleged or proven that they are similarly situated to the appellant in the Wistedt case in any event. The testimony in this proceeding established that Department Hearing Officers do comply with that decision and thus the Department has not been demonstrated to be failing to

    comply with the Wistedt decision, and there is no reason or basis for the publication of a rule stating that it has determined not to acquiesce in that decision. At most, it was established that a Department Hearing Officer in a single case, the Wistedt case, had failed, in the opinion of that court, to appropriately interpret or apply the Department's rules concerning consideration of evidence.

    
    

    Alexander Decision Issue

    
    

79. The Department has demonstrated its intent to comply with the case of Alexander v. Department of Health and Rehabilitative Services, supra., by publishing, on January 14, 1994, Rule 10C-1.602, Florida Administrative Code, which was filed on that date and which provides, "when an AG [assistance group] provides incomplete verification or indicates they will have difficulty in obtaining required verification, the case manager will offer assistance." The Department's new rule is consistent with the Alexander opinion, and this case does not provide any evidence of a non-acquiescence policy which should have been promulgated as a rule, according to Section 120.535, Florida Statutes.

    
    

80. In summary, none of the case situations advanced by the Petitioners provide preponderant evidence of a generally- applicable policy of non- acquiescence. In fact, each case cited by the Petitioners is one concerning which the Department has proven that it either intends to comply or has attempted to comply or is already in compliance with.

    
    

81. The Petitioners have largely failed to pass the threshold requirement in their burden of proof in that they did not demonstrate that their rights have been substantially affected by the alleged "non-acquiescence rule". They have not established that they are similarly-situated individuals to those individuals concerning whose benefit entitlements the above-referenced court cases at issue were rendered, with the exception of those who are asylum applicants and also AFDC applicants and thus similarly situated to the person whose AFDC entitlement was at issue in the Solis decision. However, even if they are deemed to meet the threshold standing requirement, the Petitioners and the Intervenor have failed to carry their burden of proof that the alleged "non- acquiescence policy" constitutes a rule under Section 120.52(16), Florida Statutes, which requires rule making under Section 120.54, Florida Statutes, in view of the provisions of Section 120.535, Florida Statutes, nor have they have shown that the purported "non-acquiescence rule" violates any of the provisions of Section 120.52(8), Florida Statutes, defining an invalid exercise of delegated legislative authority.

    
    

82. Accordingly, having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore

ORDERED that the Petitions filed in this cause be dismissed in their entirety.

DONE AND ORDERED this 16th day of August, 1994, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1994.

APPENDIX TO FINAL ORDER, CASE NOS. 93-2623RU AND 93-5698RU

Petitioners' Proposed Findings of Fact

1-6. Rejected, as not supported by the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter.

7-9. Accepted, but not in themselves materially dispositive of the issues presented.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as not entirely in accord with the preponderant evidence of record.

2. Accepted, but not itself materially dispositive.

3. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

4. Accepted, but not materially dispositive of the issues presented.

5. Accepted.

15-16. Accepted, but not materially dispositive of the issues presented.

17. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

18-25. Accepted, but not in themselves materially dispositive.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

2. Accepted, but immaterial. 28-29. Accepted.

30. Rejected, as contrary to the preponderant weight of the evidence, and subordinate to the Hearing Officer's findings of fact on this subject matter.

31-39. Accepted, but not themselves materially dispositive of the issues presented for resolution, and as subordinate to the Hearing Officer's findings of fact on this subject matter.

40-45. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, and not in themselves dispositive of material issues presented.

46-48. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter as to their material import.

49-56. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, and not in themselves materially dispositive.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as not entirely supported by the preponderant evidence of record.

2. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

59-61. Accepted.

1. Accepted in part, but subordinate to the Hearing Officer's findings of fact on this subject matter.

2. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

64-69. Accepted.

70-87. Accepted, but not as to the purported material import with which these proposed findings of fact are advanced, and as subordinate to the Hearing Officer's findings of fact on this subject matter, including the finding that Ms. Johnson was not similarly situated to Zayas.

Respondent's Proposed Findings of Fact

1-93. Accepted, to the extent not in conflict with the findings of fact made by the Hearing Officer. Some of the proposed findings of fact are subordinate to the findings of fact of the Hearing Officer and some are unnecessary to resolution of the material issues presented or irrelevant thereto. To that extent, such proposed findings of fact are rejected.

COPIES FURNISHED:

Valory Greenfield, Esquire

Legal Services of Greater Miami, Inc.

225 Northeast 34th Street, Suite 300 Miami, FL 33137

Paulette Ettachild, Esquire

Legal Services of the Florida Keys 600 White Street

Key West, FL 33041

Cindy Huddleston, Esquire Florida Legal Services 2221 Delta Court

Tallahassee, FL 32303

Katrina M. Saggio, Esquire Department of Health and

Rehabilitative Services Building 6, Room 466

1317 Winewood Boulevard

Tallahassee, FL 32399-0700

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Kimberly J. Tucker, Esquire General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO JUDICIAL REVIEW

A 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: 93-002623RU

Orders for Case No: 93-002623RU