       Third District Court of Appeal
                               State of Florida

                            Opinion filed June 7, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                  No. 3D16-911

                               ________________


                                 Lucy Perry,
                                    Petitioner,

                                        vs.

                 Department of Children and Families,
                                   Respondent.


      A Case of Original Jurisdiction—Mandamus.

      Florida Legal Services, Inc., and Cindy Huddleston and Kathy Grunewald
(Tallahassee); Legal Services of Greater Miami, Inc., and Liam Joseph McGivern
and James Murray Slater, for petitioner.

      Leslie Hinds St-Surin, Regional Legal Counsel, for respondent.


Before ROTHENBERG, SALTER, and SCALES, JJ.

      SCALES, J.
      Petitioner Lucy Perry seeks a writ of mandamus requiring Respondent

Department of Children and Families (“DCF”) to provide Petitioner with the notice

and opportunity for hearing required by Florida’s Administrative Procedure Act

(“APA”). We deny the petition because DCF provided Petitioner with the required

notice upon making its substantial interest determination.

      I. Facts

      At all times material, Petitioner was a food assistance recipient pursuant to

Florida’s Supplemental Nutrition Assistance Program (“SNAP”).1 Florida’s SNAP

was modified in 2015, so that, effective January 1, 2016, SNAP recipients

designated by DCF as being Able Bodied Adults Without Dependents

(“ABAWDs”) are required to participate in a SNAP Employment and Training

(“E&T”) program, operated by a local workforce services organization. The

purpose of these E&T programs is to help SNAP recipients gain skills and work

experience in order to achieve self-sufficiency. SNAP benefits cease if an

ABAWD SNAP recipient, who is otherwise not entitled to exception or exemption,

fails to meet the work requirements. It appears that an ABAWD SNAP recipient is

excepted or exempt from work requirements if, among other reasons set forth in

1 Florida’s SNAP program is authorized by federal law to provide food to low
income individuals who meet the federal eligibility requirements. 7 U.S.C.§ 2011
et seq. Florida implements SNAP on a voluntary basis in order to address hunger
and nutrition in low income households. As of the date of the filing of the petition
for writ of mandamus, there were approximately 3,500,000 people in Florida
receiving SNAP benefits. This program was known formerly as Food Stamps.

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federal administrative rules, the individual has dependents, is pregnant, is over the

age of forty-nine or is physically or mentally unable to work. See 7 C.F.R. §

273.24(b), (c) (2015). Unless exempted, an ABAWD may receive SNAP benefits

for no more than three months in any thirty six-month period. Id.

      All SNAP recipients, whether or not deemed an ABAWD, are required to

undergo a continual re-application, and re-certification of their eligibility, for

SNAP benefits. On or about December 21, 2015, DCF provided Petitioner with a

Notice of Eligibility Review document reminding Petitioner of her obligation to re-

apply for benefits if she desired to obtain SNAP benefits beyond January of 2016.

This letter purported to inform Petitioner of new guidelines applicable to those

SNAP recipients identified by DCF as ABAWDs, indicating the possibility that

Petitioner could be re-classified as an ABAWD. To that point, Petitioner had

received food benefits since 1997, not as an ABAWD due to disability.

      This December 21, 2015 Notice of Eligibility Review contained a

boilerplate notice informing Petitioner that she had a right to ask for a hearing

before a hearing officer. The record reflects that the next notice Petitioner received

was a February 9, 2016 Notification of Mandatory Participation sent to Petitioner

not by DCF, but by City of Miami Career Center, i.e., the local workforce services

organization operating the SNAP E&T program. This notice states, in relevant

part, as follows: “You are receiving this notice because DCF referred you to the



                                          3
SNAP E&T program as a mandatory participant.” While this February 9, 2016

notice advises Petitioner, in general terms, of a right to have “decisions about your

case reviewed by a program supervisor,” it does not provide any notice of how

Petitioner might challenge DCF’s identification of Petitioner as a time-limited

ABAWD mandatory participant.

      As the record indicates, sometime between December 21, 2015 (the date of

DCF’s Notice of Eligibility Review explaining that certain SNAP recipients would

be designated by DCF as ABAWDs), and February 9, 2016 (the date of the

workforce service organization’s notice to Petitioner), DCF designated Petitioner

as a time-limited ABAWD required to participate in the SNAP E&T program. On

February 23, 2016, DCF sent Petitioner a Notice of Case Action informing

Petitioner that her SNAP benefits would end on March 31, 2016, because

Petitioner did not complete the ABAWD work requirements. This Notice of Case

Action contained the same boilerplate hearing notice that appeared in DCF’s

December 21, 2015 letter. While not entirely clear from the record, it appears that

DCF terminated Petitioner’s SNAP benefits, effective April 1, 2016.

      Petitioner engaged counsel who sent DCF a March 31, 2016 e-mail

suggesting that DCF provide specific notice to SNAP recipients who have been

identified as ABAWDs, to allow such time-limted ABAWD SNAP recipients, such

as Petitioner, the opportunity to challenge their ABAWD designations. The record



                                         4
reflects that DCF did not respond to this e-mail, and thus this petition seeking

mandamus relief followed. Petitioner alleges that she is unable to work, and

therefore, is exempt from the employment and training requirements applicable to

those SNAP recipients identified by DCF as ABAWDs.

        Through supplemental briefing invited by the Court, the record reflects that

Petitioner’s SNAP benefits were restored sometime after the April 21, 2016 filing

of this petition. The record, however, also evidences that DCF, late in 2016, sent

Petitioner another notice informing her of the eligibility requirements that are

mandatory for SNAP recipients identified as ABAWD. As of the date of oral

argument,2 it was unclear as to whether DCF now classified Petitioner as an

ABAWD or as ABAWD-exempt. The parties agree, however, that Petitioner is still

receiving SNAP benefits.

        II. Nature of Mandamus Remedy

        Petitioner seeks a writ of mandamus from this Court requiring DCF to

provide her (and presumably all SNAP recipients whom DCF has identified as

ABAWDs) with notice of the ABAWD designation and an opportunity to

challenge this designation in an administrative proceeding. The extraordinary

remedy of mandamus applies exclusively to enforce a ministerial duty of a

government official. Monroe Cty v. Cisneros, 49 So. 3d 801, 801 (Fla. 3d DCA


2   February 22, 2017.

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2010). A party seeking mandamus relief must establish that the government

official has violated a clear legal right of the petitioner by failing to perform a

corresponding, indisputable legal duty. Tucker v. Ruvin, 748 So. 2d 376, 377 (Fla.

3d DCA 2000). A legal duty is ministerial only when there is no room for the

exercise of discretion, and the government official is required to perform the duty

by law. Key Biscayne Gateway Partners, Ltd. v. Vill. of Key Biscayne, 172 So. 3d

499, 499 (Fla. 3d DCA 2015).

      III. Analysis

      At the outset, we note that, pursuant to the APA, when actions undertaken

by a Florida administrative agency affect one’s “substantial interests,” the affected

person is entitled to an administrative hearing. § 120.569(1), Fla. Stat. (2015). This

right to a hearing generally is triggered by the agency issuing an order that notifies

the affected person of the right to the hearing. Id. Usually, then, the agency’s

issuance of an order defines the “clear point of entry” into administrative dispute

resolution. Fla. League of Cities, Inc. v. Admin. Comm’n, 586 So. 2d 397, 413

(Fla. 1st DCA 1991).

      In this case, the parties dispute when DCF undertook actions affecting

Petitioner’s substantial interests so as to trigger Petitioner’s right to an

administrative hearing. Petitioner argues that her substantial interests were

determined by DCF when DCF – sometime between December 21, 2015, and



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February 9, 2016 – re-classified her as a time-limited ABAWD. Because this re-

classification affected her substantial interests as a SNAP benefits recipient,

Petitioner argues that she should have been notified of her right to an

administrative hearing at this time. DCF argues that, for the purposes of SNAP

benefits, Florida’s Administrative Code expressly establishes that Petitioner’s

substantial interests were determined when DCF notified Perry of DCF’s intention

to discontinue, terminate or reduce Petitioner’s SNAP benefits. DCF further argues

that it rendered this determination in its February 23, 2016 Notice of Case Action

to Petitioner, and that this letter contained the required notice to Petitioner of the

availability of an administrative hearing.3

      Indeed, Florida’s Administrative Code requires notice and opportunity to be

heard “when the Department’s action . . . would adversely affect the individual’s . .

. eligibility for . . . Food Stamp Program Benefits.” Fla. Admin. Code R. 65-2.042

(emphasis added). Further, the Florida Administrative Code provides that “[i]n

cases of intended action to discontinue, terminate or reduce assistance, the

Department shall give timely and adequate notice.” Fla. Admin. Code R. 65-

3 In pertinent part, the letter states : “ Your Food Assistance benefits for the
person(s) listed below [Lucy Perry] will end on March 31, 2016 . . . . We are
applying the penalty listed below beginning April 1, 2016, because the head of
your Food Assistance household . . . did not complete a work activity without
having a good reason. If you comply before the begin date of the penalty, we will
not impose a penalty . . . .” Further, the letter states, “You have the right to ask for
a hearing before a state hearings officer.” The February 23, 2016 letter then
includes instructions for requesting a hearing.

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2.043(2) (emphasis added). Hence, the relevant administrative rules expressly

establish a SNAP recipient’s “clear point of entry” into the administrative hearing

process as occurring when DCF makes a determination regarding the person’s

actual receipt of SNAP benefits, rather than when DCF makes a preliminary

determination that might affect those benefits in the future.4

         While DCF’s February 23, 2016 letter to Petitioner is not the model of

clarity, it does notify Petitioner that she has a right to a hearing. Granted, prior to

this February 23, 2016 letter, DCF made the decision to re-classify Perry as a time-

limited ABAWD; nonetheless, DCF’s proposed re-classification of Petitioner and

DCF’s ensuing change to Petitioner’s SNAP benefits are bound together so tightly

that, perforce, Petitioner would have to address both determinations at a requested

hearing. We therefore conclude that DCF supplied Petitioner sufficient notice and

opportunity to be heard in its February 23, 2016 correspondence to her.

         Consequently, we cannot say that DCF has a ministerial duty to issue

Petitioner further notice so as to warrant mandamus relief. We deny the petition

for writ of mandamus because the record establishes that DCF fulfilled its

ministerial duty to Petitioner.

         Petition denied.

         ROTHENBERG, J., concurs.


4   Petitioner has not challenged the validity of these rules.

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                                       Perry v. Fla. Dep’t of Children and Families
                                                                Case No. 3D16-911

      SALTER, J. (concurring).

      I concur that the petition for mandamus must be denied. I write only to

provide an exclamation point to my colleague’s statement that DCF’s letter to

Petitioner “is not the model of clarity” (slip op. at 8). When DCF prepared the

mass-mailed written communications directed to the many recipients of

supplemental nutrition assistance program (“SNAP”) benefits in Florida notifying

those recipients of (1) a new eligibility requirement, and (2) the potential loss of

benefits if the new requirement is not fulfilled, DCF was obligated to comply with

the “easily understandable language” requirement of Florida Administrative Code

Rule 65-2.043(3)(b).

      “Easily understandable language” allows the reader to determine when he or

she has a “clear” point of entry into an administrative process that affects a

substantial interest of the reader. Fla. Admin. C. R. 65-2.043(3)(b). Such a notice

“does not have to track any particular language or recite statutory provisions

verbatim, so long as it clearly informs the affected party of its rights and time

limits.” Fla. League of Cities, Inc. v. Admin. Comm’n, 586 So. 2d 397, 414 (Fla.

1st DCA 1991) (emphasis provided).

      DCF argues that adequate “incremental” notice was provided to Ms. Perry,

gleaned cumulatively from multiple communications and, if necessary,


                                         9
supplemented by online websites identified in the multiple notices. I disagree.

The first notice in December 2015 told Ms. Perry that “Starting January 1, 2016,

certain food assistance recipients will have to meet work requirements to be

eligible to receive food assistance benefits,” and that those recipients are known as

Able-Bodied Adults Without Dependents (“ABAWDs”). It did not tell Ms. Perry

that she was an ABAWD. The record here shows that she is not.

      That notice also told Ms. Perry that ABAWDs were “physically and

mentally able to work” and “not exempt from food assistance general employment

program work requirements.” DCF’s notice told her that “if” she was an ABAWD,

(1) she would be referred to participate in an employment and training program,

and (2) “if” an ABAWD didn’t meet the work requirements, the ABAWD’s food

assistance benefits would be curtailed.

      On February 9, 2016, Ms. Perry received a “Notification of Mandatory

Participation,” from the City of Miami Career Center, an employment and training

program provided by the Florida Department of Economic Opportunity (not DCF).

That notice told Ms. Perry that she had been referred to the program by DCF;

“This means, in order to continue receiving food assistance, you will be required to

participate in work-related activities for 80 hours per month.” But this notice was

issued by another agency, not by DCF; the notice didn’t provide an administrative

remedy or notice of appeal rights; and DCF had never notified Ms. Perry that she



                                          10
was being referred to the City of Miami Career Center based on DCF’s conclusion

that she was an ABAWD.

      Finally, when Ms. Perry did not participate in the City of Miami Career

Center program as directed, DCF sent her the notice of February 23, 2016,

advising her that her SNAP benefits would be terminated at the end of March

because she “did not complete a work activity without having a good reason.”

That notice of case action included information regarding Ms. Perry’s “right to ask

for a hearing before a state hearings officer,” and thus a clear point of entry to

challenge that administrative sanction.

      DCF argues that these incremental notices were steps in a process, but only

the final notice required a due process notification of the right to obtain a hearing.

Ms. Perry responds that the decision to change her status to “ABAWD,” which

plainly occurred at or before the time DCF referred her to the City of Miami Career

Center (without notifying her), also required such a notice. Ms. Perry maintains

that the “Notification of Mandatory Participation” issued by the City of Miami

Center would not have issued, but for her re-classification by DCF as an ABAWD,

and that the directive to report, be trained, and work 80 hours each month, is a

matter affecting her “substantial interests,” under section 120.569(1), Florida

Statutes (2016). And had Ms. Perry attempted to comply with the directive—

needlessly, because DCF concedes that she has at all times been disabled so as to



                                          11
be exempt from the ABAWD training and work requirements—I would agree with

her point. But she did not.

      So while the language in the various communications to Ms. Perry is not, in

my view at least, “easily understandable” or “clear,” we are not assessing that

question in the context of an administrative claim for the restoration of unpaid

benefits to a single claimant, or for a declaratory statement that Ms. Perry is not an

ABAWD. Rather, Ms. Perry seeks the “extraordinary” remedy of mandamus, see,

e.g., Scott v. State, 130 So. 3d 741, 742 (Fla. 3d DCA 2014).

      We cannot issue a writ to DCF directing its employees to correct previously-

issued notices of case action to make them “easily understandable” and “clear.”

Nor can we write such notices for the agency. For these reasons, I concur that the

petition for mandamus must be denied.




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