Respondent not required to register as charitable organization; overturned by agency

For Petitioner: Richard A. Belz, Esquire Gainesville, Florida For Respondent: Benjamin E. Poitevent, Esquire Tallahassee, Florida By Petition For Administrative Determination filed with the Division of Administrative Hearings on April 23, 1987, the Petitioner seeks an administrative determination pursuant to Section 120.56, Florida Statutes, that Rule 33-3.007, Florida Administrative Code, is an invalid exercise of delegated legislative authority. By Order Of Assignment dated April 30, 1987, the case was assigned to Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. By agreement of the parties, the case was scheduled for formal hearing at Tallahassee, Florida, on May 27, 1987.Evidence is insufficient to show invalidity of inmate grievance rule.

Consistent with the Order Granting Continuance entered by the undersigned on October 23, 1986, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, at the Union Correctional Institution, Raiford, Florida, on November 24, 1986. The issue for consideration was whether Sections 33-5.006(5) and .007(5), Florida Administrative Code, constitute abuses of agency discretion and an excess of delegated legislative authority because of being arbitrary and capricious. APPEARANCES For Petitioner: Douglas L. Adams Union Correctional Institution Post Office Box 221Rule dealing with inmate visitation not arbitrary, capricious, or invalid exercise of delegated legislative authority but application by local office not consistent with terms of rule

Petitioners, inmates at Union Correctional Institution, filed petitions pursuant to Section 120.56, Florida Statutes, challenging the validity of Respondent's Rule 33-3.0045, Florida Administrative Code, and Form DC3-302M dated 8-83, as invalid exercises of delegated legislative authority. Specifically, Petitioners allege that Respondent's Rule 33-3.0045(2)(g) is arbitrary and capricious. Petitioners also allege that Respondent has implemented an amended Form DC3-302M (8/83) without going through rule-making procedures and that such action by Respondent constitutes the formation of a new rule as defined in Section 120.52(15), Florida Statutes, and that the failure of Respondent to promulgate such a rule change in accordance with Section 120.54, Florida Statutes, renders the rule invalid. In support of this challenge Petitioners called as witnesses Mr. Jerry Pilcher, Business Manager of U.C.I.; Mr. Raymond Hay, Canteen Supervisor at U.C.I.; Col. Vernon Dukes, Chief of Security at U.C.I.; Officer Carla Faulk; Ms. Paula Lynn Decker, a non-inmate civilian; Inmate Douglas Hedges; Officer Richard Jernigan; and Petitioner Douglas L. Adams. Respondent called Mr. Milton R. Hicks, Assistant Superintendent at U.C.I. Subsequent to the hearing a transcript of the proceedings was filed with the Division of Administrative Hearings on January 6, 1987. And as previously agreed at the close of the hearing, all parties were allowed 15 days from the date of the transcript within which to file their proposed final orders. Both Petitioners and Respondent filed proposed final orders which have been carefully considered in the preparation of this Final Order. A specific ruling on each proposed finding of fact submitted by each party has been made in the attached Appendix which is incorporated into this Final Order.PETs fail to show grounds for holding Rule 33-3.0045 invalid. Regulations promulgated by superintendents of prisons are not rules subject to Chap. 120

This matter comes before the undersigned on a Motion to Dismiss the Petitioner's challenge to Chapter 33-22.08(2)(d), Florida Administrative Code, filed pursuant to Section 120.56, Florida Statutes. The movant attacks the Petitioner's standing to challenge the subject rule, which in effect is a substantial reenactment of Rule 33-3.08 which was repealed on March 12, 1984. The movant maintains that the Petitioner has no standing to challenge the subject rule since no continuing and repeated adverse effect or substantial injury is occasioned the Petitioner by the rule's effect, since the monies assessed and collected from the Petitioner as penalty for the destruction of the Department's property, have all been collected and the Petitioner stands in no danger of further penalty for that past conduct. Under the authority of Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), the failure to show a continuing and present adverse effect against the Petitioner in a rule challenge proceeding will defeat standing to challenge the subject rule. The Court opined in the Jerry case, through its citation with approval of O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) that, in effect, standing must be predicated upon a real and immediate threat of repeated injury and there must be some showing that one challenging such a rule will again be subjected to the same or similar disciplinary proceedings, including payment of damages, pursuant to the rule under challenge. In the instant proceeding, there has been no allegation that the Petitioner will, or is likely to again be subjected to the disciplinary proceedings and assessment of monetary penalty which occurred in the past, which past assessment and collection of penalty is the essence of the factual allegations on which the challenge to the subject rule is predicated. The case of Hasper v. Department of Administration, 45 So.2d 398, 399 (Fla. 1st DCA 1984) cited by the Petitioner in its response to the Motion to Dismiss is not dispositive in the Petitioner's favor on the question of standing. The Hasper case differed from the instant situation in that the appellant therein, Hasper, an employee who was terminated from her position in the senior management service of the State of Florida, did suffer a continuing adverse effect by the agency's reliance on the authority of the rule therein under challenge. She was suffering a continuing, repeated injury by the fact that she remained unemployed, by authority of that rule, at the time the rule challenge was filed and during the course of that proceeding. In short, she was suffering the kind of continued adverse effect which, under authority of Jerry, supra, would be sufficient to show a substantial and immediate injury sufficient to establish standing. In the instant case however, the harm or adverse effect occasioned by the operation and application of the subject rule on Petitioner Moultrie is in the past and has run its course. The result should not be different merely because the Department retains Petitioner Moultrie's money collected pursuant to the application of the challenged rule, inasmuch as recovery of the funds involved is not the proper subject of a rule challenge, rather that issue would properly be raised in a Section 120.57(1) proceeding disputing the application of the subject rule in Petitioner Moultrie's situation, (as was envisioned in the Hasper opinion, which also related to a companion Section 120.57(1) proceeding), or a civil proceeding to address the issue of Petitioner Moultrie's reimbursement of those funds. In short, having reviewed the Motion to Dismiss and the response thereto, and being otherwise advised in the premises, the Hearing Officer is persuaded that the Motion to Dismiss is meritorious. It is, therefore ORDERED that the Motion to Dismiss filed by the Respondent, Department of Corrections, State of Florida, be and the same is hereby GRANTED.Assessment of penalty vs inmate bank account by rule to pay property. damage is within broad statute authority to discipline inmates and to administer their funds.