STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERVIN JAMES HORTON, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5951RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

On September 18, 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 33-3.018, Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), and Department of Corrections Policy and Procedure Directive No. 2.02.15 (hereinafter referred to as the "Directive"), pursuant to Section 120.56(1), Florida Statutes.

By Order of Assignment dated September 20, 1991, this case was assigned to the undersigned. A formal hearing was scheduled for November 21, 1991, by Notice of Hearing entered September 24, 1991. A Motion for Continuance was filed by the Petitioner on October 4, 1991. On October 17, 1991, an Order Denying Motion for Continuance was entered.

On October 17, 1991, the Respondent filed Respondent's 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 Directive, which cannot constitute a basis of an action brought 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. The Petitioner filed a response to the Respondent's Motion to Dismiss.

On November 1, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. Pursuant to the November 1, 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 Directive 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.

Based upon the foregoing, the Petitioner was informed that the Motion to Dismiss was granted and that the Petitioner could filed an amended petition on or before November 15, 1991.

On November 21, 1991, an Amended Petition as Ordered November 1st, 1991, (hereinafter referred to as the "First Amended Petition"), was filed in this case by the Petitioner.

On November 18, 1991, the Respondent filed a Motion to Dismiss Amended Petition. No response to this Motion was filed by the Petitioner.

On December 9, 1991, an Order Granting Motion to Dismiss Amended Petition was entered. In the December 9, 1991, Order the parties were informed that this case would be dismissed by Final Order. The parties were given until January 13, 1992, to file proposed final orders and were informed that a Final Order would be entered on or before January 27, 1992. Neither party has filed a proposed final order.

On December 13, 1991, the Petitioner filed another pleading titled "Amended Petition" (hereinafter referred to as the "Second Amended Petition").

FINDINGS OF FACT

1. The initial Petition for Administrative Hearing was filed on September 18, 1991.

   
   

2. The Petition was filed by Ervin James Horton.

   
   

3. In the Petition Rule 33-3.018, Florida Administrative Code, and Policy and Procedural Directive No. 2.02.15 were challenged.

   
   

4. The Challenged Rule is titled "Inmate Bank Trust Fund". The Challenged Rule is lengthy and provides for the "policies of the Department with respect to money received for the personal use or benefit of inmates . . . ." The Directive deals with the same general subject.

   
   

5. The Petition is, to say the least, confusing. This confusion is caused by the Petitioners frequent use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 4, State of the Case and Facts, provides the following:

   
   

   4. That the (Petitioner) seek to challenge D.O.C. Policy and Procedure Directive $2.02.15 entitled (Administration on Inmate Trust Funds) as being invalid, arbitrary, capricious, that goes beyond the powers, functions, duties, to exceed legislative authority.

   
   

   This paragraph is fairly typical of most of the 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.

   
   

6. Apparently, the Petitioner is complaining of the actions of three employees of the Respondent, J. L. Ward (see paragraphs 10 and 11 of the Statement of the Case and Facts of the Petition), R. E. Davis (see paragraphs 14 and 23 of the Statement of the Case and Facts of the Petition), and B. E. Goss

   (see paragraph 24 of the Statement of the Case and Facts of the Petition). See also paragraphs 13-14 and 18 of the Statement of the Case and Facts of the Petition.

   
   

7. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rule and the Directive. See paragraphs 17, 22 and 25 of the Statement of the Case and Facts of the Petition and most of the portion of the Petition labeled "Affect the Petitioner [sic] Interest." The statements concerning constitutional issues consists of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rule or the Directive are unconstitutional.

8. Finally, the following relief was requested in the Petition: The Petitioner demand [sic] relief of:

   1. That D.O.C. #2.02.15 et. seq. be declared invalid, arbitrary, capricious, to delegate outside the scope of Florida Statute and Constitution.

   2. Any and all other applicable authority that's statutory protected or judicial mandate under Federal mandate as [unreadable] v. Wainwright, TCA-75-3 (11/18/77). Wolfish v. Levi, 573 F. 2d 118 (2nd Cir. 1978) (Cite omitted).

   3. That the Respondents, be required to incorporate State Constitution and Federal Constitution protection as statutory mandated at 944.09 120.54 et. seq. (1991).

      
      

9. Insufficient alleged facts concerning why it is believed that the Challenged Rule and the Directive are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition.

   
   

10. On November 1, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered.

    
    

11. On November 21, 1991, a pleading titled "Amended Petition as Ordered November 1st 1991" was filed by the Petitioner.

    
    

12. The First Amended Petition is very similar to the Petition and suffers from the same deficiencies. Additionally, it is more apparent in the First Amended Petition that the Petitioner is challenging alleged actions of certain employees of the Respondent and not the Challenged Rule or the Directive.

    
    

13. 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 Directive are invalid under Section 120.56, Florida Statutes.

    
    

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

    
    

15. On December 13, 1991, the Petitioner filed a document titled "Amended Petition". This Second Amended Petition does nothing to correct the deficiencies of the Petition or the First Amended Petition.

    CONCLUSIONS OF LAW

    
    

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

    
    

17. 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. . . .

    
    

18. 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."

    
    

19. 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.

    
    

20. 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.

    
    

21. In the Petition, the First Amended Petition and the Second Amended Petition, it was alleged that the Challenged Rule and the Directive constitute an "invalid exercise of delegated legislative authority". It has also been alleged that the Challenged Rule and the Directive 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 some of the language contained in Section 120.52(8), Florida Statutes.

    
    

22. 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 Directive come with the definitions of Section 120.52(8), Florida Statutes.

    
    

23. The Petition, First Amended Petition and Second Amended Petition attempt to challenge the alleged actions of certain employees of the Respondent. These allegations, if true, might support a conclusion that the Challenged Rule and/or the Directive 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).

    
    

24. It has also been contended in the Petition, the First Amended Petition and the Second Amended Petition that the Challenged Rule and the Directive violate the Constitutions of the United States and the State of Florida. 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).

    
    

25. 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 Amended Petition as Ordered November 1st, 1991, and the Amended Petition filed in this case are DISMISSED.

DONE and ORDERED this 27th day of January, 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 27th day of January, 1992.

Copies Furnished To:

Ervin James Horton, #037253 Carroll Webb, Executive Director Florida State Prison Administrative Procedures Committee Post Office Box 747 Holland Building, Room 120

Starke, FL 32091-0747 Tallahassee, FL 32399-1300

Claire Dryfuss Harry K. Singletary, Jr. Assistant Attorney General Secretary

Department of Legal Affairs Department of Corrections The Capitol, Suite 1603 2601 Blairstone Road Tallahassee, FL 32399-1050 Tallahassee, FL 32399-2500

Donna Malphurs Suite 439

Department of Corrections 2601 Blairstone Road

Tallahassee, FL 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: 91-005951RX

Orders for Case No: 91-005951RX