STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUIS A. PACHECO, JOEL ESTREMERA ) FELIPE PICHARDO and OWEN D. )

DENSON, )

)

Petitioners, )

)

vs. ) CASE NO. 91-8332RP

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

On December 26, 1991, the Petitioners, Luis A. Pacheco, Joel Estremera, Felipe Pichardo and Owen D. Denson, filed a pleading titled "Petition for Determination of the Invalidity of an Existing Rule" (hereinafter referred to as the "Petition") against "John T. Shaw, Superintendent, Glades Correctional Institution, et. al.," (hereinafter referred to as the "First Respondents"), challenging the validity of "the revision of Glades Correctional Operating Procedure 91-07, sec. 7.09" pursuant to Sections 120.54 and 120.56, Florida Statutes.

On January 3, 1992, an Order of Assignment was entered assigning this case to the undersigned. On January 6, 1992, a Notice of Hearing was entered scheduling the final hearing of this matter for January 29, 1992.

On January 6, 1992, the First Respondents filed a Motion to Dismiss. The First Respondents argued that an individual prison is not an administrative agency and that an operating procedure does not constitute a rule for purposes of Sections 120.54 or 120.56, Florida Statutes.

On January 9, 1992, one of the Petitioners, Luis A. Pacheco, filed Petitioner's Response to Respondent's Motion to Dismiss. No response was filed by the other Petitioners. Petitioner Pacheco admitted in the response that a policy memorandum does not have department-wide or state-wide applicability but argued nonetheless that the policy memorandum applies to "a broad class of persons: All inmates at Glades Correctional Instatution [sic]."

On January 10, 1992, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. In the January 10, 1992, Order the parties were informed that the Petition was being dismissed because the Petitioners had not challenged any rule of the Department of Corrections (hereinafter referred to as the "Department") or any other agency. The parties were also informed that the final hearing of this case scheduled for January 29, 1992, was cancelled, and that the Petitioners could file an amended petition on or before January 21, 1992.

No amended petition was filed by the Petitioners on or before January 21, 1992. Therefore, on January 29, 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.

On February 7, 1992, the Petitioners filed a pleading titled "Amended Petition for Determination of the Invalidity of an Existing Rule" (hereinafter referred to as the "Amended Petition"), and requested that it be accepted. No response to this request was filed by the First Respondents or the Department. In the Amended Petition the Department was named as the Respondent in this case. Although the Amended Petition indicates that the Petitioners are challenging Rule 33-5.01, Florida Administrative Code, pursuant to Sections 120.52, 120.54 and 120.56, Florida Statutes, in fact the Petitioners have still only challenged a change to policy and procedure directive 3.04.12.

On February 25, 1992, an Order Concerning Amended Petition was entered. In the February 25, 1992, Order the Amended Petition was accepted. The parties were informed, however, that this case would be disposed of by a summary final order. The parties were informed 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. A ruling on each proposed finding of fact has been made either directly or indirectly in this Final Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Petitioners, Luis A. Pacheco, Joel Estremera, Felipe Pichardo and Owen D. Denson, are inmates in the custody and control of the Department.

   
   

2. The Department is a state agency.

   
   

3. On December 26, 1991, the Petitioners filed a Petition for Determination of the Invalidity of an Existing Rule against the First Respondents.

   
   

4. The Petition was filed against "John T. Shaw, Superintendent, Glades Correctional Institution, et. al."

   
   

5. In the Petition, the Petitioners challenged the validity of "the revision of Glades Correctional Operating Procedure 91-07, sec. 7.09" pursuant to Sections 120.54 and 120.56, Florida Statutes.

   
   

6. The Petition failed to challenge a rule or an alleged rule of any "agency" as that term is defined in Section 120.52(16), Florida Statutes.

   
   

7. On January 10, 1992, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered granting a Motion to Dismiss filed by the First Respondents and giving the Petitioners an opportunity to file an amended petition on or before January 21, 1992.

   
   

8. No amended petition was filed by the Petitioners on or before January 21, 1992. Therefore, on January 29, 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.

9. On February 7, 1992, the Petitioners filed an Amended Petition for Determination of Invalidity of An Existing Rule and requested that it be accepted.

   
   

10. On February 25, 1992, an Order Concerning Amended Petition was entered accepting the Amended Petition and informing the parties that this case would be disposed of by a summary final order.

    
    

11. In the Amended Petition the Department was named as the Respondent.

    
    

12. Although the amended petition indicates that the Petitioners are challenging Rule 33-5.01, Florida Administrative Code, pursuant to Sections 120.52, 120.54 and 120.56, Florida Statutes, in fact the Petitioners are challenging a memorandum issued at Glades Correctional Institution changing Policy and Procedure Directive 3.04.12 (hereinafter referred to as the "Policy and Procedure Directive").

    
    

13. In the Amended Petition the Petitioners allege, in part, the following:

    
    

    Respondent through his designee, John T. Shaw, has adopted exhibit " A " as a rule, which governs petitioners [sic] visitors to select from, " Saturday or Sunday as their regular visiting day. Petitioners are therefore substantially " affected " and this case includes an invalid exercise of delagated [sic] authority because the department of corrections failed to promulgate it's Policy and Procedure Directive number 3.04.12 as a rule, contrary to the requirements of section 944.09, Florida Statutes.

    
    

14. The Amended Petition fails to challenge a rule or an alleged rule of any "agency" as that term is defined is Section 120.52(16), Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. 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. . . . [Emphasis added].

       
       

17. Section 120.54, Florida Statutes, contains similar provisions. Pursuant to Section 120.54(4), Florida Statutes, a challenge may be instituted against the proposed adoption, amendment or repeal of any "rule". Any such

    challenge must be in writing and must "state with particularity the provisions of the rule . . . alleged to be invalid with sufficient explanation of the facts or grounds for the alleged invalidity and facts sufficient to show that the persons challenged the proposed rule would be substantially affected by it." [Emphasis added].

    
    

18. The term "rule" is defined in Section 120.52(14), Florida Statutes, in relevant part, as "each agency statement of general applicability . . . ." The term "agency" is defined in Section 120.52(1), Florida Statutes, in pertinent part, as:

    
    

    1. The Governor . . . .

    2. Each other state officer and each state department, departmental unit described in s. 20.04, commission, regional planning agency, board, district, and authority, including, but not limited to, those described in chapters 163, 298, 373, 380, and 582 and

       s. 186.504, except any legal entity or agency created in whole or in part pursuant to chapter 361, part II.

    3. Each other unit of government in the state, including counties and municipalities, to the extent they are expressly made subject to this act by general or special law or existing judicial decisions.

    . . . .

    
    

19. Neither the superintendent of Glades Correctional Institution nor Glades Correctional Institution constitute an "agency" for purposes of Chapter 120, Florida Statutes. Therefore, policy and procedure directives of Glades Correctional Institution or memorandums issued by Mr. Shaw, the Superintendent of Glades, do not constitute "rules" which may be challenged pursuant to Sections 120.54 or 120.56, Florida Statutes. See Adams v. Barton, 507 So.2d 665 (Fla. 1st DCA 1987).

    
    

20. In light of the fact that the Petitioners have not challenged any "rule" of the Department or any other "agency", their Petition and Amended Petition must be dismissed.

ORDER

Based upon the foregoing, it is

ORDERED that the Petitioners have failed to allege that any rule of the Department or any other agency constitutes an invalid exercise of delegated legislative authority in violation of Sections 120.54 or 120.56, Florida Statutes. Accordingly, the Petition for Determination of the Invalidity of an Existing Rule and the Amended Petition for Determination of the Invalidity of an Existing Rule filed in this case are 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.

APPENDIX TO FINAL ORDER

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioners' Proposed Findings of Fact Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1 1.

2 2.

3-4 4-5 and 12-13.

4 Not supported by the weight of the evidence or a valid conclusion of law. See 6 and 14.

The First Respondents' and the Department's Proposed Findings of Fact

Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1 1.

2 2.

3 4-5 and 12-13.

4 4-6. See, however, 11.

5 6 and 14.

COPIES FURNISHED:

Luis A. Pacheco #080296

Glades Correctional Institution

500 Orange Avenue Circle Belle Glade, Florida 33430

Joel Estremera #097624

Glades Correctional Institution

500 Orange Avenue Circle Belle Glade, Florida 33430

Felipe Pichardo #092325

Glades Correctional Institution

500 Orange Avenue Circle Belle Glade, Florida 33430

Owen D. Denson #A013624

Glades Correctional Institution

500 Orange Avenue Circle Belle Glade, Florida 33430

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: 91-008332RP

Orders for Case No: 91-008332RP