STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERVIN JAMES HORTON, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5818RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

On September 12, 1991, the Petitioner, Ervin James Horton, filed a Petition for Administrative Hearing (hereinafter referred to as the "Petition"). In the Petition, the Petitioner attempted to challenge Rule 33-3.00125, Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), and Internal Operating Procedure #P2-89.10 (hereinafter referred to as the "I.O.P."), pursuant to Section 120.56(1), Florida Statutes.

By Order of Assignment dated September 16, 1991, this case was assigned to the undersigned. A formal hearing was scheduled for November 25, 1991, by Notice of Hearing entered September 17, 1991. On September 26, 1991, a Second Notice of Hearing was entered moving the date of the hearing to December 3, 1991.

On October 17, 1991, the Respondent filed a Motion to Dismiss. In this Motion the Respondent argued that this case should be dismissed because the Petitioner had failed to allege sufficient facts to show that the Challenged Rule is an "invalid exercise of delegated legislative authority." The Respondent also argued that the Petitioner was apparently attacking the actions of certain individuals in applying and implementing the Challenged Rule and the I.O.P., which cannot constitute a basis of an action brought pursuant to Section 120.56, Florida Statutes. The Respondent also argued that the Petitioner had failed to allege sufficient facts to show the existence of the I.O.P. and that an I.O.P. is not a rule subject to challenge pursuant to Section 120.56, Florida Statutes. Finally, the Respondent argued that the undersigned has no jurisdiction to decide the constitutional issues raised by the Petitioner.

On October 24, 1991, the Petitioner filed a response to the Respondent's Motion to Dismiss.

On November 18, 1991, an Order Granting Motion to Dismiss and Cancelling Formal Hearing was entered. Pursuant to the November 18, 1991, Order, the parties were informed that it had been determined that the Petition failed to allege sufficient facts to show that the Challenged Rule and I.O.P. constitute an "invalid exercise of delegated legislative authority". The Petitioner was also informed that it appeared that he was merely challenging the actions of several employees of the Respondent and that the undersigned had no jurisdiction to determine if the actions of employees of the Respondent were proper or consistent with the Respondent's rules, Florida Statutes or constitutional law.

The Petitioner was further informed that the undersigned did not have jurisdiction to entertain his constitutional challenges. Finally, the Petitioner was informed that challenges to internal operating procedures are not the proper subject of a rule challenge pursuant to Section 120.56, Florida Statutes.

Based upon the foregoing, the Petitioner was informed that the Motion to Dismiss was granted. The Petitioner was given to leave to file an amended petition on or before December 9, 1991.

On December 6, 1991, the Petitioner filed a document titled "Petitioner [sic] Amended Petition Pursuant to Order Issued Nov. 18th, 1991, According [sic] Opportunity to Amend (hereinafter referred to as the "First Amended Petition").

On December 9, 1991, an Order Concerning Amended Petition was entered.

Pursuant to this Order the parties were informed that the First Amended Petition did not correct the problems associated with the Petition and that a Final Order dismissing this case would be entered on or before February 7, 1992. The parties were given until January 17, 1992, to file proposed final orders.

Neither party has filed a proposed final order.

On December 9, 1991, after the Order Concerning Amended Petition had been entered, the Respondent filed a Motion to Dismiss Amended Petition. No response to this Motion was filed by the Petitioner.

On December 13, 1991, the Petitioner filed a Motion for Correct Order and, or Alternative Relief. This Motion was denied by Order entered December 16, 1991.

On December 13, 1991, the Petitioner filed Petitioner's Motion to File a Second and Final Amendment and a pleading titled "Second Amended Petition". By Order entered December 18, 1991, the motion to file the Second Amended Petition was denied.

FINDINGS OF FACT

1. The initial Petition for Administrative Hearing was filed on September 12, 1991.

   
   

2. The Petition was filed by Ervin James Horton.

   
   

3. In the Petition Rule 33-3.00125, Florida Administrative Code, and

   I.O.P. #P2-89.10 were challenged.

   
   

4. The Challenged Rule is titled "Inmate Telephone Use." The Challenged Rule sets forth the "minimum telephone privileges that shall be granted inmates.

   . . ."

   
   

5. The I.O.P. apparently deals with the same general subject as the Challenged Rule.

   
   

6. The Petition includes the use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 4, Affected Interest of the Petitioner, Second Amended Petition, provides the following:

   
   

   4. That the (Petitioner) is affected by the Agancy [sic] promulgation of 33-3.00125 et. seq. that

   materially fail to follow the applicable rulemaking procedure setforth [sic] in 120.54. And, establish adequate standards for the Agency decision making as needed June 6th, 1990, August 13th, 1990 that exceed it [sic] grant of authority and fail [sic] to include the requirements of (consistancy) [sic] in delegating to I.O.P. P2-89.10 as 33-1.007(1), (3), (4) mandate and

   the unbridle [sic] discretion exercised by the Agency to deny (telephonic communication) needed for judicial reason [sic] as requirements of the court in Case # 90- 2968-23 Horton v. Florida Federal S.B. as not being available for judicial needs. [Emphasis in original].

   
   

   This paragraph is fairly typical of most of the Petition, the First Amended Petition and the Second Amended Petition. Although it contains some "legalize", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge.

   
   

7. Apparently, the Petitioner is complaining of the actions of several employees of the Respondent relating to several alleged incidents involving attempts by the Petitioner to use a telephone. In the Statement of the Case and Facts of the Petition, paragraphs 13-20 pertain to an incident which allegedly occurred in December, 1989, paragraphs 21-42 pertain to an incident which allegedly occurred in May and/or August, 1990, paragraphs 43A-48A pertain to an incident which allegedly occurred in August, 1989, and paragraphs 52A-59A pertain to an incident which allegedly occurred in January, 1991. These events are further referred to in other portions of the Petition and throughout the First and Second Amended Petitions. Paragraph 24, Statement of the Facts, of the First Amended Petition is fairly typical of the allegations concerning specific actions complained of by the Petitioner:

   
   

   24 That the (Petitioner) has repeatively [sic] been subjected to the (practices) arbitrary, capriociously [sic], exercise pursuant to 33-3.00125 et. seq. F.A.C. as by Florida State prison administrators as T.L. Barton, L.E. Turner, P.C. Decker, and dates of July 23rd, 1988; June 5th, 1990, August 13th, 1989 and as setforth [sic] herein; [Emphasis in original].

   
   

8. The alleged incidents complained of by the Petitioner have allegedly been the subject of unsuccessful grievance proceedings. Having failed to obtain a favorable response to his grievances, the Petitioner is seeking through this process to have the particular incidents reviewed. The Petitioner's allegations concerning the alleged incidents involving his attempts to obtain use of the telephone are not merely allegations intended to prove the Petitioner's standing to institute this proceeding. The Petitioner is complaining about, and seeking review of, actions of the Respondent in denying him the use of a telephone on the dates raised by the Petitioner in his Petition and his First and Second Amended Petitions.

9 The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rule and the I.O.P. See paragraphs 6, 11-12, 17, 20, 44A, 50A and 60A of the Statement of the Case and Facts of the Petition. The Petitioner also mentions constitutional provisions in numerous other parts of the Petition, the First Amended Petition and the Second Amended Petition. The statements concerning constitutional issues consist of mere

statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rule or the I.O.P. is unconstitutional.

1. Insufficient alleged facts concerning why it is believed that the specific requirements or provisions of the Challenged Rule and the I.O.P. are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition, the First Amended Petition and the Second Amended Petition.

   
   

2. On November 18, 1991, an Order Granting Motion to Dismiss and Cancelling Formal Hearing was entered.

   
   

3. On December 6, 1991, a pleading titled "Petitioner [sic] Amended Petition Pursuant to Order Issued Nov. 18th 1991 According [sic] Opportunity to Amend" was filed by the Petitioner.

   
   

4. The First Amended Petition is very similar to the Petition and suffers from the same deficiencies.

   
   

5. The First Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the First Amended Petition which, if proven, would support a determination that the Challenged Rule and the I.O.P. are invalid under Section 120.56, Florida Statutes.

   
   

6. On December 9, 1991, an Order Concerning Amended Petition was entered dismissing the First Amended Petition and giving the parties an opportunity to file proposed final orders.

   
   

7. On December 12, 1991, the Petitioner filed a document titled Petitioner's Motion to File a Second and Final Amendment" and a Second Amended Petition. The Second Amended Petition does nothing to correct the deficiencies of the Petition or the First Amended Petition. The motion to file the Second Amended Petition was denied by Order entered December 18, 1991.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. In pertinent part, Section 120.56, Florida Statutes, provides the following:

   
   

   1. Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

   2. The petition seeking an administrative determination under this section shall be in writing and shall state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the invalidity of the rule. . . .

10. The only relief which may be sought pursuant to Section 120.56, Florida Statutes, is a determination of the invalidity of the rule on the ground that the rule is an "invalid exercise of delegated legislative authority."

    
    

11. What constitutes an "invalid exercise of delegated legislative authority" is defined in Section 120.52(8), Florida Statutes, as follows:

    
    

    1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

       2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

       3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

       4. The rule is vague, fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency; or

       5. The rule is arbitrary or capricious.

    
    

12. In order to challenge an existing rule, the person bringing the challenge must state with particularity which portion(s) of the above definition the challenged rule violates and the facts supporting such an allegation.

    
    

13. In the Petition, the First Amended Petition and the Second Amended Petition, it was alleged that the Challenged Rule and the I.O.P. constitute an "invalid exercise of delegated legislative authority". It has also been alleged that the Challenged Rule and the I.O.P. are invalid pursuant to some of the specific provisions of Section 120.52(8), Florida Statutes. These allegations are, however, no more than restatements of the language contained in Sections 120.52(8) and 120.56, Florida Statutes.

    
    

14. No sufficient statement of the particular facts which the Petitioner believes support his challenge were alleged in the Petition, the First Amended Petition or the Second Amended Petition. The Petition, First Amended Petition and Second Amended Petition essentially contain bare assertions that the Challenged Rule and the I.O.P. come within the definitions of Section 120.52(8), Florida Statutes, and are, therefore, invalid pursuant to Section 120.56, Florida Statutes.

    
    

15. In reality the Petition, First Amended Petition and Second Amended Petition constitute an attempt by the Petitioner to challenge the alleged actions of certain employees of the Respondent involving apparent denials of attempts of the Petitioner to use a telephone. These allegations, if true, might support a conclusion that the Challenged Rule and/or the I.O.P. have not been applied properly or have not been followed by some employees of the Respondent. Misapplication of, or the failure to follow, an agency rule cannot, however, support a challenge to that agency rule under Chapter 120, Florida Statutes. See Hasper v. Department of Administration, 459 So.2d 398 (Fla. 1st DCA 1982). The allegations concerning attempts by the Petitioner to use a

    telephone cannot support a challenge to the Challenged Rule pursuant to Section 120.56, Florida Statutes.

    
    

16. It has also been contended in the Petition, the First Amended Petition and the Second Amended Petition that the Challenged Rule and the I.O.P. violate constitutional provisions. A Hearing Officer has no jurisdiction over constitutional challenges brought pursuant to Section 120.56, Florida Statutes. Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Fund, 427 So.2d 153 (Fla. 1982); Long v. Department of Administration, 428 So.2d 688 (Fla. 1st DCA 1983); and Cook v. Parole and Probation Commission, 415 So.2d 845 (Fla. 1st DCA 1982).

    
    

17. Finally, the Petitioner has attempted to challenge an internal operating procedure. An internal operating procedure is not the proper subject of a challenge pursuant to Section 120.56, Florida Statutes. Adams v. Barton,

    507 So.2d 665 (Fla. 1st DCA 1987). Nor does the Petition, First Amended Petition or Second Amended Petition contain sufficient allegations concerning the I.O.P. to be considered a challenge to a "rule" pursuant to Section 120.56, Florida Statutes.

    
    

18. Based upon the foregoing, it is concluded that the Petition, the First Amended Petition and the Second Amended Petition do not comport with the requirements of Section 120.56, Florida Statutes, and this case should be dismissed.

ORDER

Based upon the foregoing, it is

ORDERED that the Petition for Administrative Hearing, the Petitioner [sic] Amended Petition Pursuant to Order Issued Nov. 18th, 1991, According [sic] Opportunity to Amend and the Second Amended Petition filed in this case are DISMISSED.

DONE and ORDERED this 14th day of February, 1992, 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 14th day of February, 1992.

Copies Furnished To:

Ervin James Horton #037253

Florida State Prison Post Office Box 747

Starke, Florida 32091-0747

Claire Dryfuss

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

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

Donna Malphurs Suite 439

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

Harry K. Singletary, Jr., Sec. Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Louis A. Vargas Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

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: 91-005818RX

Orders for Case No: 91-005818RX