STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER B. DOLINGER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-8330RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

On December 27, 1991, the Petitioner, Peter B. Dolinger, filed a pleading titled "Petition for Administrative Determination of Rule Validity" (hereinafter referred to as the "Petition") challenging the validity of Rule 33-8.009(10), Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), pursuant to Section 120.56, Florida Statutes. Immediately after the filing of the Petition, the Petitioner informed the Clerk's Office of the Division of Administrative Hearings that his address had changed. The Petitioner requested that his new address, 1036 Pert Lane, Holiday, Florida, 34691, be noted on any pleadings entered in this case. All pleadings were, therefore, mailed to the new address given by the Petitioner.

On January 3, 1992, an Order of Assignment was entered assigning this case to the undersigned. By Notice of Hearing entered January 6, 1992, the final hearing of this case was scheduled for January 28, 1992.

On January 6, 1992, the Respondent, the Department of Corrections, filed a Motion to Dismiss or, Alternatively Motion for Final Summary Order. On January 13, 1992, the Respondent filed an Amendment to Motion to Dismiss. In the amendment the Respondent argued that, although the Petitioner had alleged that he was incarcerated in the Pasco County Detention Center in his Petition, the Order of Assignment, Notice of Hearing and a Prehearing Order entered in this case listed the Petitioner's address as "1036 Pert Lane, Holiday, Florida, 34691", which is evidently a private residence. The Respondent pointed out that the Petitioner is apparently no longer incarcerated in any institution under the control of the Respondent. Therefore, the Respondent argued that the Challenged Rule has no application to the Petitioner and, consequently, lacks standing to institute the instant proceeding. The Respondent requested, therefore, that the Petition be dismissed.

On January 23, 1992, the Petitioner filed Petitioner's Response to (Amended) Motion to Dismiss or Alternatively Motion for Summary Final Judgement. The Petitioner did not dispute the allegation of the Respondent that he is no longer under the control of the Respondent. Instead, the Petitioner argued that he has standing in this proceeding because he was incarcerated in the Pasco County Detention Center "[a]t the time of filing of the petition herein "

On January 24, 1992, an Order Denying Motion to Dismiss or, Alternatively Motion for Final Summary Order, Granting Amendment to Motion to Dismiss With

Leave to Amend and Cancelling Formal Hearing was entered. In the January 24, 1992, Order the Petitioner was informed that it appeared that he was no longer incarcerated by the Respondent and, therefore, that the facts alleged in his Petition failed to support a conclusion that he is substantially affected by the Challenged Rule. The parties were informed that the amendment to motion to dismiss was granted and that the Petitioner had until February 7, 1992, to filed an amended petition.

No amended petition was filed by the Petitioner. Therefore, on February 18, 1992, an Order Concerning Amended Petition was entered informing the parties that they could file proposed final orders on or before March 9, 1992, and that a final order would be entered on or before April 6, 1992.

The parties have not filed proposed final orders.

FINDINGS OF FACT

1. On December 30, 1991, the Petitioner, Peter B. Dolinger, filed a Petition for Administrative Determination of Rule Validity.

   
   

2. In the Petition, the Petitioner challenged Rule 33-11.013, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes.

   
   

3. The Petitioner alleged that he was serving a county jail sentence of one year, imposed on March 4, 1991.

   
   

4. Subsequent to the filing of the Petition, the Petitioner was released from custody.

   
   

5. The Petitioner is no longer subject to the rules of the Respondent, including the Challenged Rule.

   
   

6. The Petitioner has failed to allege any facts which would support a conclusion that he is currently subject to the Challenged Rule or that the Challenged Rule has any continuing impact on him.

   
   

7. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida.

   
   

   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 (1991).

   
   

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 test for determining whether a person is substantially affected by a rule was set out in Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478, 482 (Fla 2d DCA 1981):

    
    

    We believe that before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that this substantial injury is of a type or nature which the proceeding is designed to protect. The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury. . . .

    
    

11. The Petitioner has failed to allege facts which would support a finding that he will suffer an injury for the Challenged Rule. The Petitioner has failed to allege facts which would support a finding that the Challenged Rule has any application to him now that he is no longer under the supervision and control of the Respondent. Any impact from the Challenged Rule has already occurred. It is therefore concluded that the Petitioner has failed to allege sufficient facts upon which it may be concluded that he has standing to institute the instant proceeding.

ORDER

Based upon the foregoing, it is

ORDERED that the Petitioner has failed to allege sufficient facts to conclude that the Petitioner has standing to challenge Rule 33-11.013, Florida Administrative Code. Accordingly, the Petition For Determination of Rule Validity filed in this case is DISMISSED.

DONE and ENTERED this 8th day of April, 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 8th day of April, 1992.

COPIES FURNISHED:

Peter B. Dolinger 1036 Pert Lane

Holiday, Florida 34691

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: 91-008330RX

Orders for Case No: 91-008330RX