STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES R. ENDRESS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3791RU

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

On June 20, 1991, the Petitioner, James R. Endress, filed a Petition to Determine the Invalidity of a Rule. In this Petition, the Petitioner challenged an alleged policy of the Respondent as a "rule" which had not been adopted by the Respondent pursuant to Section 120.54, Florida Statutes. By Order of Assignment dated July 5, 1991, this case was assigned to Larry J. Sartin, a Hearing Officer of the Division of Administrative Hearings.

By Notice of Hearing entered July 12, 1991, the formal hearing was scheduled for August 9, 1991. On July 31, 1991, a Motion to Change Hearing Date filed by the Respondent and a Motion for Continuance filed by the Petitioner were granted and the formal hearing was rescheduled for September 23, 1991. On August 29, 1991, a Third Notice of Hearing was entered scheduling the formal hearing for September 20, 1991. On September 13, 1991, the Petitioner filed a Motion for Continuance or to Compel Expedient Discovery. This Motion was granted, in part, by Order entered September 6, 1991.

On September 3, 1991, the qualified representative for the Petitioner filed a pleading titled "Notice of Additional Party." In this pleading the Petitioner attempted to add an individual by the name of Deborah L. Crews as a party. By Order dated September 5, 1991, the Petitioner was informed that Ms. Crews could not be added as a party through the pleading filed by Petitioner's qualified representative.

On September 11, 1991, a Motion to Dismiss was filed by the Respondent.

The Motion to Dismiss was granted by an Order entered September 24, 1991. The Petitioner was informed in the September 24, 1991, Order that he had failed to allege any facts upon which it could be concluded that the Respondent has a policy which is being applied in such a manner as to constitute a "rule" which may be challenged under Chapter 120, Florida Statutes. Therefore, the Motion to Dismiss was granted and the Petitioner was given until October 14, 1991, to file an amended petition.

The Petitioner did not file an amended petition. Therefore, an Order Concerning Final Order was entered on October 16, 1991. In this Order the parties were informed that a Final Order dismissing this case would be entered on or before November 18, 1991, and that they could file proposed final orders on or before October 28, 1991.

The Respondent filed Respondent's Proposed Final Order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Final Order or the proposed finding of fact has been accepted in the Appendix which is attached hereto. The Petitioner did not file a proposed final order on or before October 28, 1991, or before the entry of this Final Order.

FINDINGS OF FACT

1. The Petitioner, James R. Endress, is an inmate at the New River Correctional Institution.

   
   

2. The Respondent is the Department of Corrections, an agency of the State of Florida.

   
   

3. The Petitioner has challenged an alleged non-rule policy pursuant to which he was allegedly denied continued visitation with Deborah L. Crews, a former employee of the Respondent.

   
   

4. The Petitioner has alleged that the challenged non-rule policy was issued by the Superintendent of the New River Correctional Institution.

   
   

5. New River Correctional Institution is not an "agency" of the State of Florida.

   
   

6. The Petitioner has not alleged that the Respondent has established and applied the alleged non-rule policy on a general basis.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56, Florida Statutes.

   
   

8. In the Petition filed by the Petitioner, the Petitioner has contended that attempts to obtain approval of continued visitation with Ms. Crews were denied and that:

   
   

   . . . the ultimate reason for discontinuing said visits fall directly within the meaning of 120.52(16), Fla. Stat., which provide [sic], as follows:

   (16) "Rule" means each agency statement of general applicability that implement [sic], interprets or prescribes law or policy "

   Id.

   
   

9. The Petitioner also alleged that he was denied continued visitation with Ms. Crews by the Superintendent of New River Correctional. According to the Petitioner, the ultimate reason for denying visitation with Ms. Crews was also given by the Superintendent of New River Correctional Institution: "Former Department of Corrections employees are not normally allowed to visit inmates except in cases involving immediate family "

   
   

10. The Petitioner alleged that the Superintendent's denial of his visitation with Ms. Crews constitutes a "rule" within the meaning of that term contained in Section 120.52(16), Florida Statutes. The Petitioner further

    alleged that the policy is therefore invalid because it has not been promulgated by the Respondent pursuant to Section 120.54, Florida Statutes.

    
    

11. The definition of a "rule" for purposes of Chapter 120, Florida Statutes, is contained in Section 120.52(16), Florida Statutes, which provides, in pertinent part:

    
    

    (16) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. . . .

    
    

12. As pointed out by the Respondent, the Petitioner has only challenged a single statement of one superintendent of one correctional institution of the Respondent as that statement was allegedly applied to the Petitioner. This alleged statement or policy is not sufficient to constitute a "rule" under the definition of Section 120.52(16), Florida Statutes.

    
    

13. Individual correctional institutions of the Respondent are not administrative agencies. See Adams v. Barton, 507 So.2d 665 (Fla. 1st DCA 1987). Therefore, the decisions or policies of the superintendent of a correctional institution do not constitute the policy of an "agency". The application of a policy to one inmate also does not constitute the "general applicability" of a policy. Therefore, the alleged decision or policy of one superintendent to one inmate cannot constitute a "rule" for purposes of Chapter 120, Florida Statutes.

    
    

14. If the Petitioner were able to prove the allegations of his Petition, he would merely prove that one employee of the Respondent has been applying a policy at one institution to one inmate that has not been adopted pursuant to Section 120.54, Florida Statutes. Such proof would not establish that the policy is being applied in a general manner to all inmates at all institutions pursuant to a directive of the Respondent. Therefore, even if the Petitioner proved the allegations of his Petition, he would fail to prove that the Respondent has adopted a "rule" without complying with the provisions of Section 120.54, Florida Statutes.

    
    

15. One avenue for redress of the application by an employee of the Respondent of an unpromulgated policy, the improper application of an improper interpretation of an agency's rules by an employee of the agency, or the failure of an employee to follow an agency's rules would normally be through a Section 120.57, Florida Statutes, proceeding. Such proceedings are not available, however, to inmates. Section 120.52(12), Florida Statutes. The proper avenue for redress of the Superintendent's action in denying the Petitioner visitation with Ms. Crews might, therefore, lie in the Respondent's grievance procedure.

It does not lie in a Section 120.56, Florida Statutes, proceeding.

ORDER

Based upon the foregoing, it is

ORDERED that the Petition to Determine the Invalidity of a Rule is DISMISSED.

DONE and ORDERED this 2nd day of December, 1991, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1991.

APPENDIX TO FINAL ORDER

The Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any.

Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1 1.

2 2.

3 3-4.

4 5.

1. See 6.

2. Hereby accepted.

COPIES FURNISHED:

James R. Endress #091685

New River Correctional Institution Post Office Box 333

Raiford, Florida 32803

Joe Richardson #066663-25B-152

New River Correctional Institution West Unit, Post Office Box 333 Raiford, Florida 32083-0333

Donna Malphurs Suite 439

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Claire Dryfuss

Assistant Attorney General Division of General Legal Services Department of Legal Affairs

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

Harry K. Singletary, Jr. Secretary

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

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

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.

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

JAMES R. ENDRESS, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

vs. CASE NO. 91-4145

DOAH CASE NO. 91-3791RU

FLORIDA, DEPARTMENT OF CORRECTIONS,

Appellee.

/ Opinion filed January 14, 1993.

Appeal from an Order of the Division of Administrative Hearings. James R. Endress, Raiford, Pro Se.

Robert A. Butterworth, Attorney General, and Claire D. Dryfuss, Assistant Attorney General, for Appellee.

ALLEN, J.

The appellant is a prison inmate appealing an agency order entered in a section 120.56, Florida Statutes, rule challenge proceeding. The appeal was pending on July 1, 1992, when section 120.52(12)(d), Florida Statutes (Supp. 1992), became effective. As amended by chapter 92-166, section 9, Laws of Florida, this enactment no longer authorizes prisoners to obtain or participate in section 120.56 proceedings, or to seek judicial review under section 120.68, Florida Statutes, with regard to such agency action. In Rothermel v. Florida Parole and Probation Comm'n, 441 So.2d 663 (Fla. 1st DCA 1983), this court considered the impact of a similar statutory change on pending appeals.

Rothermel established that the new statute would apply so as to eliminate the right to appeal and require dismissal of pending cases. However, Rothermel cautioned that this result should pertain only insofar as the aggrieved prisoners had another available remedy.

In light of this caveat in Rothermel, and mindful of the requirements of article I, section 21, Florida Constitution, which ensures access to the courts for redress of injury, we issued orders to show cause in this and various other prisoner appeals currently pending under section 120.68. Having now fully considered all of the responses to these orders, and none of the respondents having demonstrated any legal impediment to the application of section 120.52(12)(d) as amended, we conclude that in accordance with Rothermel the amended statute may apply to pending cases and requires the dismissal of such appeals.

In reaching this conclusion we note that many aggrieved prisoners may now be able to pursue a declaratory judgment under chapter 86, Florida Statutes.

Section 86.021, Florida Statutes, expressly authorizes such a remedy with regard to "any regulation made under statutory authority," and section 86.051, Florida Statutes, further provides that the court's general power to grant declaratory relief does not depend on a specific enumeration of authority and may extend to "any act not yet done or any event which has not yet happened ..." We are aware that the criteria for standing to pursue relief under chapter 86 has at times been construed as differing somewhat from that which has pertained under various provisions in chapter 120. See Bayne v. Florida State Board of Dispensing Opticians, 212 So.2d 762 (Fla. 1968); D & W Oil Company, Inc. v. O'Malley, 293 So.2d 128 (Fla. 1st DCA 1974); see also, Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA), cert. denied, 359 So.2d 1215 (Fla. 1978). When the 1968 constitution was adopted, with the article I, section 21 guarantee of access to the courts, section 120.30(1), Florida Statutes (1967), permitted an "affected party" to obtain a declaratory judgment as to the validity, meaning, or application of an agency rule. This provision, which served as the predicate for the decisions in Bayne and D & W Oil, was subsequently repealed, thereby impacting the relief available to a party who is not substantially or adversely affected as indicated in Jerry. However, neither the distinction in the criteria for standing, nor the repeal of section 120.30, should affect the validity of section 120.52(12)(d) as amended. Furthermore, if any aggrieved prisoners who are now deprived of a chapter 120 remedy fail to satisfy the criteria for relief by a declaratory judgment under chapter 86, it would appear that other remedies, such as an extraordinary writ, might then be invoked. But these matters are beyond the necessary scope of the issues before us in the present case. Neither the appellant nor any of the other prisoners in the cases currently pending in this court have demonstrated that they are in such an affected class, or that they are unable to obtain relief outside the ambit of chapter 120.

This appeal under section 120.68 no longer being authorized by law, as no reason has been shown why the amendment to section 120.52(12)(d) should not apply, the appeal is dismissed.

BOOTH and SMITH, JJ., CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable Larry J. Sartin, Hearing Officer

WHEREAS, in that certain cause filed in this Court styled: Division of Administrative Hearings

JAMES R. ENDRESS

v. Case No. 91-4145

DEPARTMENT OF CORRECTIONS Your Case No. 91-3791RU

The attached opinion was rendered on January 14, 1993.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable James E. Joanos

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 17th day of February, 1993.

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 91-003791RU

Orders for Case No: 91-003791RU