STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS ADAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-8115RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

On December 20, 1991, the Petitioner, Douglas Adams, filed a pleading titled "Petition to Determine the Invalidity of an Existing Rule" (hereinafter referred to as the "Petition") challenging the validity of Rules 33-22.005(4) and 33-22.007(2)(c), Florida Administrative Code (hereinafter referred to as the "Challenged Rules"), pursuant to Section 120.56, Florida Statutes. On December 30, 1991, an Order of Assignment was entered assigning this case to the undersigned.

On December 26, 1991, the Respondent, the Department of Corrections, filed a Motion to Dismiss or Alternatively Motion for Final Summary Order. The Respondent argued that the arguments raised by the Petitioner in his Petition "address the language of the rules and can be addressed without the necessity of any fact finding." The Respondent also suggested that the Petitioner's arguments concerning the Challenged Rules are incorrect and requested, therefore, that the Petition be dismissed. In the alternative, the Respondent requested that a summary final order be entered. No response to the motion was filed by the Petitioner.

On January 10, 1992, an Order Denying Motion to Dismiss and Motion for Final Summary Order and to Show Cause was entered. In the January 10, 1992, Order the parties were informed that it appeared that the Petitioner had failed to raise any issues of fact in his Petition requiring the presentation of proof other than the Petitioner's standing. Therefore, it was suggested that, if the Respondent would stipulate to the Petitioner's standing or agree that standing may be determined based upon the facts alleged in the Petition, this case would be disposed of by summary final order. The parties were also informed that the motion to dismiss was denied and that the parties had until January 21, 1992, to show cause why this case should not be disposed of by summary final order.

No response to the January 10, 1992, Order was filed by the parties.

Therefore, it was assumed that the Respondent agreed that the Petitioner had standing or that the determination of the Petitioner's standing could be made based on the allegations of the Petition. Consequently, on January 28, 1992, an Order Concerning Proposed Final Orders was entered informing the parties that they could file proposed final orders on or before February 24, 1992, and that this Final Order would be entered on or before March 16, 1992.

The parties have filed proposed final orders containing proposed findings of fact. The proposed findings of fact contained in the proposed final orders of the Petitioner and the Respondent, to the extent not included in the Findings of Fact section of this Final Order, are hereby accepted.

FINDINGS OF FACT

1. On December 20, 1991, the Petitioner, Douglas Adams, filed a Petition to Determine the Invalidity of an Existing Rule.

   
   

2. In the Petition, the Petitioner challenged Rules 33-22.005(5) and 33- 22.007(2)(c), Florida Administrative Code pursuant to Section 120.56, Florida Statutes.

   
   

3. The Petitioner is an inmate in the custody of the Respondent, the Department of Corrections.

   
   

4. The Petitioner is subject to the rules of the Respondent, including the Challenged Rules.

   
   

5. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida.

   
   

6. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida.

   
   

7. Rule 33-22.005(4), Florida Administrative Code, provides the following:

   
   

   1. Section III. Report of Investigation. Upon receipt of the Disciplinary Report, the Senior Correctional Officer shall review the report and, when the facts suggest that the alleged violations is significant, he shall cause the report to be forwarded to the Correctional Officer Chief.

      1. Upon approval of the Correctional Officer Chief, or in his absence the Senior Correctional Officer, an impartial investigation of the charge against the inmate shall be conducted. This investigation shall be completed without unreasonable delay. Any delay at any state must be justified in the report. The Correctional Probation Supervisor shall review the report and cause an impartial investigation to be conducted for inmates participating in the Supervised Community Release Program.

      2. The investigating officer is responsible for obtaining the inmate's version of the offense as well as contacting the charging officer and any other staff members or inmates who have information pertaining to the allegation and the charge. The inmate charged shall be offered staff assistance and asked if he has any material witnesses to offer in his behalf. If the inmate has no witnesses, it must be noted in the report. If names of witnesses are given, the investigating officer shall then interview both inmate and staff witnesses and, if appropriate, have the Witness Statement Form DC4-856 completed. If

         inmate witnesses or staff witnesses are not contacted, a statement as to why they were not contacted must be included. Opinions as to innocence or guilt shall not be made by the investigating officer. The investigator shall sign and date the report.

         
         

8. Rule 33-22.007(2)(c), Florida Administrative Code, provides the following:

   
   

   (2) The Hearing Officer or Disciplinary Team can request further investigation or evidence, the appearance of additional witnesses or the statements of unavailable witnesses.

   . . . .

   1. Witnesses shall not be called or certain information disclosed if doing so would create a risk of reprisal, undermine authority or otherwise present a threat to the security or order of the institution.

      The inmate witnesses must be willing to testify but may offer an oral or written statement to the investigating officer in lieu of personal appearance. Notations shall be made in the report with reasons for declining to call requested witnesses or for restricting any information.

      
      

9. The Petitioner has alleged that the Challenged Rules are invalid because the rules are "contrary to due process contained in enabling legislation. Section 20.315, Florida Statutes (1989)" and are vague, arbitrary and capricious.

   
   

10. The Petition does not include any alleged facts supporting the Petitioner's assertion that the Challenged Rules are "arbitrary and capricious."

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56, Florida Statutes (1991).

    
    

12. The burden of proof in this proceeding was on the Petitioner. Florida League of Cities, Inc. v. Department of Insurance and Treasurer, 540 So.2d 850 (Fla. 1st DCA 1989); Department of Administration, Division of Retirement v. Albanese, 455 So.2d 639 (Fla. 1st DCA 1984); and Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2d DCA 1979).

    
    

13. 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. . . .

    
    

14. 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."

    
    

15. 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.

    
    

16. 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 specific facts supporting such an allegation.

    
    

17. In the Petition filed in this case 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 because they are contrary to Section 20.315, Florida Statutes, the law implemented by the Challenged Rules, that the Challenged Rules are vague and that the Challenged Rules are arbitrary and capricious.

    
    

18. No sufficient statement of the particular facts which the Petitioner believes support his allegation that the Challenged Rules are arbitrary and capacious were alleged in the Petition. The Petitioner agrees with this conclusion in his proposed final order. See proposed finding of fact 1 of the Petitioner's Proposed Final Order.

19. In support of the Petitioner's contention that Rule 33-22.005(4)(b), Florida Administrative Code, violates Section 20.315, Florida Statutes, the Petitioner has argued the following in paragraph 3 of the conclusions of law of his proposed final order:

    
    

    By simply reading rule 33-22.005(5)(b) it is clear that the rule does not instruct the investigator to advise possible witnesses of what incident is being investigated, or to ask relevant questions in connection with the matter investigated. As challenged the rule only instruct [sic] the investigator to contact requested witnesses at best. Without quidelines or instructions in these matters it is not a violation of the rule for an investigator to merely contact requested witness [sic], ask no questions and secure no statements. This does not comport with an impartial investigation and thus contrary to due process approved in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and further commanded by Section 20.315(1)(a), Florida Statutes (1991).

    
    

20. The Petitioner has also argued that Rule 33-22.005(4)(b), Florida Statutes, is contrary to the Wolff decision to the extent that it allows an investigator to secure a statement from an inmate "if appropriate."

    
    

21. With regard to Rule 33-22.007(2)(c), Florida Administrative Code, the Petitioner has argued that this rule is invalid because it allows witnesses not to appear or give a statement in disciplinary hearings.

    
    

22. To the extent that the Petitioner is alleging that the Challenged Rules violate constitutional provisions, those contentions may not be addressed by the undersigned. 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).

    
    

23. The Petitioner's arguments concerning whether the Challenged Rules comport with the requirements of Section 20.315(1)(a), Florida Statutes, have been considered and are rejected. Section 20.315(1)(a), Florida Statutes, provides:

    
    

    The goals of the department shall be:

    (a) To protect society by providing incarceration as an appropriate deterrent to the commission of crime.

    
    

    The Challenged Rules in no way enlarge, modify or contravene this provision or any other part of Section 20.315, Florida Statutes.

    
    

24. There is no requirement in Section 20.315, Florida Statutes, that the Respondent's rules, in order to be valid, must require that an investigating officer "advise possible witnesses of what incident is being investigated, or to ask relevant questions in connection with the matter investigated." Nor does Section 20.315, Florida Statutes, require that the Challenged Rules require investigators to secure statements under any circumstances other than "if

appropriate." When read as a whole, the Challenged Rules cannot be said to lack sufficient guidelines, standards and safeguards to conclude that the Challenged Rules enlarge, modify or contravene Section 20.315, Florida Statutes.

ORDER

Based upon the foregoing, it is

ORDERED that the Petitioner has failed to prove that Rules 33-22.005(4) or 33-22.007(2)(c), Florida Administrative Code, constitute an invalid exercise of delegated legislative authority in violation of Section 120.56, Florida Statutes. Accordingly, the Petition to Determine the Invalidity of an Existing Rule filed in this case is DISMISSED.

DONE and ENTERED this 13th 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 13th day of March, 1992.

COPIES FURNISHED:

Douglas Adams #031200

Liberty Correctional Institution Post Office Box 999

Bristol, Florida 32321

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

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: 91-008115RX

Orders for Case No: 91-008115RX