STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERVIN JAMES HORTON, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7413RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

On November 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 Rules "33-3.002, 33-19.006, 33-19 et. seq., 33- 19.012, 33-23 et. seq." (hereinafter referred to as the "Challenged Rules"), pursuant to Section 120.56(1), Florida Statutes.

By Order of Assignment dated November 21, 1991, this case was assigned to the undersigned.

On November 26, 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 Rules constitute 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 Rules which cannot constitute the 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 did not file a response to the Respondent's Motion to Dismiss.

On December 10, 1991, an Order Granting Motion to Dismiss with Leave to Amend was entered. Pursuant to the December 10, 1991, Order, the parties were informed that it had been determined that the grounds for dismissal stated in the Motion to dismiss

were correct. The Petitioner was also informed that his Petition was inadequate for essentially the same reason his petitions filed in six other cases (91-5818R, 91-5915R, 91-6345R, 91-6346R, 91-

7189 and 91-7190R) had been dismissed.

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 January 10, 1992.

No amended petition has been filed by the Petitioner.

On January 14, 1992, an Order Concerning Final Order was entered. In the January 14, 1992, Order the parties were informed that this case would be dismissed by Final Order. The parties were given until February 10, 1992, to file proposed final orders and were informed that a Final Order would be entered on or before March 13, 1992. Neither party has filed a proposed final order.

FINDINGS OF FACT

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

   
   

2. The Petition was filed by Ervin James Horton.

3. In the Petition Rules "33-3.002, 33-19.006, 33-19 et. seq., 33-19.012, 33-23 et. seq." were challenged.

1. Most of the Challenged Rules are lengthy and deal with a number of subjects. The common thread of the Challenged Rules concern medical care of inmates.

   
   

2. The Petition is, to say the least, confusing. This confusion is caused by the Petitioner's frequent use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 17, State of the Case and Facts, provides the following:

   
   

   17. That the (Petitioner) has learned that the (Respondent) act [sic] pursuant to an invalid delegation as 33-3.002 33-19 et. seq., 233-23 et. seq. that fail to establish adequate standards for agency decision making, and vests unbridled discretion in the agency or employees that's inconsistant

   [sic] to the statutory requirements of 120.54 and 944.09.

   
   

   This paragraph is fairly typical of most of the Petition. Although it contains some "legalese", 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.

   
   

3. Apparently, the Petitioner is complaining of the actions of employees of the Respondent in allegedly releasing confidential medical information to "security staff and psychologist or and other staff or employees with criminal intent" and other medical practices of the employees of the Respondent.

   
   

4. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rules. 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 Rules are unconstitutional. Again, most of the Petitioner's arguments apparently concern violation of constitutional rights by the acts of employees of the Respondent as opposed to the violations of constitutional rights in the Challenged Rules.

   
   

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

   
   

6. On December 10, 1991, an Order Granting Motion to Dismiss with Leave to Amend was entered. The Petitioner was informed that his Petition was being dismissed and the Petitioner was given an opportunity to file an amended petition.

   
   

7. No amended petition has been filed by the Petitioner.

   
   

8. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.

   
   

   CONCLUSIONS OF LAW

   
   

9. 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.

   
   

10. 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. . . .

       
       

11. 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."

    
    

12. 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.

    
    

13. 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.

    
    

14. In the Petition it was alleged that the Challenged Rules constitute an "invalid exercise of delegated legislative authority". It has also been alleged that the Challenged Rules 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.

    
    

15. No sufficient statement of the particular facts which the Petitioner believes support his challenge were alleged in the Petition. The Petition essentially contains bare assertions that the Challenged Rules come within the definitions of Section 120.52(8), Florida Statutes.

    
    

16. The Petition attempts to challenge the alleged actions of certain employees of the Respondent. These allegations, if true, might support a conclusion that the Challenged Rules 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).

    
    

17. It has also been contended in the Petition that the Challenged Rules 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).

    
    

18. Based upon the foregoing, it is concluded that the Petition does 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 filed in this case is DISMISSED.

DONE and ORDERED this 12th day of March, 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 12th day of March, 1992.

COPIES FURNISHED:

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

Louis A. Vargas General Counsel

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Harry K. Singletary, Jr., Secretary 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: 91-007413RX

Orders for Case No: 91-007413RX