STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT EUGENE BURCH, )

)

Petitioner, )

)

vs. ) CASE NO. 77-635RX

) FLORIDA PAROLE AND PROBATION ) COMMISSION, )

)

Respondent. )

)

FINAL ORDER

The undersigned hearing officer having been duly assigned to this cause enters the following:

1. Paragraph 3 of the petition states that the rule on which an administrative determination is sought is Rule 23-16.09 F.A.C. As shown in Paragraph 8 of the petition that part of Rule 23-16.09 being specifically challenged as an invalid exercise of validly delegated legislative authority is Section 23-15.09(5) F.A.C. wherein it states "The parolee shall be informed, following the hearing, that a decision shall he made by the Commission as to whether to revoke the parole, and said decision shall be forthcoming within a reasonable time and in writing." The underlined language in the foregoing is that being brought into question by Petitioner. Petitioner further alleges in Paragraphs 4 and 5 of his petition that the questioned rule is based upon Section 947.23 Florida Statutes where, in subsection (1) it states that after a final parole revocation hearing and "within a reasonable time thereafter, the Commission shall make findings upon such charge of parole violation and shall enter an order determining whether said charges of parole violation have been sustained." (Emphasis added)

   
   

2. Paragraph 8 of the petition set forth the grounds upon which Petitioner challenges Rule 23-15.09(5) F.A.C. Subparagraphs a through e of Paragraph B allege that the Respondent has unlawfully delayed in issuing its order pursuant to Rule 23-16.09(5) F.A.C. and Section 947.23(1), Florida Statutes with regard to Petitioner. They further allege that no maximum time is provided in the rule beyond which "reasonable" is presumed to be "unreasonable", that no standards have been promulgated by Respondent for the determination of what constitutes a "reasonable time" and that "reasonable time" is being interpreted in the absolute discretion of the Commission. There are no other grounds alleged for the invalidity of the challenged rule. In his prayer for relief Petitioner asks, in addition to his request for the assignment of a hearing officer and a formal proceeding, that Rule 23-16.09(5) F.A.C. be interpreted by the hearing officer to define what the "reasonable time" allowable is as stated in the rule, that the hearing officer declare the time thus far taken by Respondent to enter an order determining the revocation of Petitioner's parole to be "unreasonable",and, finally, that Petitioner be immediately released from the process issued by the Respondent and restored to his parole status.

3. A proceeding pursuant to Section 120.56 Florida Statutes is one solely for the purpose of making an administrative determination of the invalidity of a particular administrative rule on the ground that the rule is an invalid exercise of validly delegated legislative authority. The purpose of such a proceeding is not to determine a particular individual's rights in a given fact situation. The hearing officer does not have the authority in such a proceeding to grant specific relief to an individual. The hearing officer's authority is limited to a determination of the validity of the challenged rule. In the instant cause it is apparent from Paragraph 8 of the petition that the grounds relied upon by Petitioner deal primarily with the manner in which Respondent has applied the challenged rule to Petitioner rather than the substance of the rule itself and its validity. It is further apparent from Petitioner's prayer for relief that what is sought is essentially specific relief for this Petitioner with regard to this parole revocation proceeding. Such relief is outside the authority of the hearing officer and the scope of this proceeding. With regard to the challenged validity of the subject rule it is noted that the language of the rule complained of, "within a reasonable time", is identical to the language on the same subject contained in the statute, Section 940.23(1), F.S., upon which Petitioner alleges the rule is based and from which the rule derives its authority. Thus, on its face the petition fails to sufficiently allege grounds upon which the validity of the rule may be challenged.

Therefore, it is hereby ORDERED:

The petition is dismissed.

DONE and ORDERED this 27th day of April, 1977, in Tallahassee, Florida.

CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Richard A. Belz, Esquire 2614 S.W. 34th Street Gainesville, Florida 326O3

Carolyn Snurkowski, Esquire Florida Parole and Probation

Commission

P.O. Box 3165

Tallahassee, Florida 32303

Carroll Webb, Executive Director Administrative Procedure Committee Room 103, Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State

403 East Gaines Street Tallahassee, Florida 32304

Docket for Case No: 77-000635RX

Orders for Case No: 77-000635RX