STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID ANSGAR NYBERG, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0006RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

On January 8, 1992, the Petitioner, David Ansgar Nyberg, filed a pleading titled "Initial Petition" challenging the validity of Rule 33-12.001, Florida Administrative Code (referred to as "Rule 33-12.01" in the Initial Petition and the Petitioner's proposed final order). On January 10, 1992, an Order of Assignment was entered assigning this case to the undersigned.

A Notice of Hearing was entered January 13, 1992, setting the final hearing of this case for February 4, 1992.

On January 14, 1992, the Respondent, the Department of Corrections, filed a Motion for Summary Final Order. The Respondent argued that no factual issues were raised in the Initial Petition and suggested that this case be disposed of favorably to the Respondent by a summary final order.

On January 22, 1992, the Petitioner filed a Response to Motion for Summary Final Order. Although the Petitioner disputed the Respondent's argument that a final order should be entered favorable to the Respondent, the Petitioner agreed that this case should be disposed of by summary final order.

Based upon a review of the Initial Petition, the Motion for Summary Final Order and the response thereto, an Order Granting in Part Motion for Summary Final Order was entered on January 24, 1992. In the January 24, 1992, Order the parties were informed that this case would be disposed of without holding a final hearing. The parties were informed that the relevant facts alleged in the Initial Petition would be assumed to be correct, the parties were given until February 10, 1992, to file proposed final orders and the parties were informed that a final order would be entered on or before March 6, 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. Standing.

   
   

   1. The Petitioner, David Ansgar Nyberg, is an inmate in the custody of the Respondent, the Department of Corrections.

      
      

   2. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding.

      
      

   3. The Petitioner has challenged Rule 33-12.001(2), Florida Administrative Code.

      
      

2. The Respondent.

   
   

   1. 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.

      
      

   2. 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.

      
      

3. Rule 33-12.001(2), Florida Administrative Code.

1. Rule 33-12.001, Florida Administrative Code, provides in pertinent part:

   
   

   1. Prior notice of adoption, amendment or repeal of a rule shall be made available to persons or parties directly affected by the rule as required in 120, F.S.

   2. Notice to those directly affected by a proposed rule shall be by:

      . . . .

      (b) Publication in the Florida Administrative Weekly at least 14 days prior to any proposed hearing.

      . . . .

      (d) Posting by memorandum notice of the intended action on the inmate and personnel bulletin boards of all major institutions, road prisons, community correctional centers, community vocational centers and offices throughout the state directing that complete proposed rules are available in each institutional library or office. A copy of the notice shall be circulated among the inmates in all disciplinary, administrative or close management confinement areas of all facilities.

      CONCLUSIONS OF LAW

      
      

      1. Jurisdiction.

         
         

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

   
   

   1. Standing.

      
      

3. The Petitioner has standing to institute the instant action. He is incarcerated by the Respondent and subject to the rules of the Respondent, including the rule at issue in this proceeding. See Department of Corrections

   v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984).

   
   

   1. Nature of the Petitioner's Challenge.

      
      

4. The only appropriate challenge to an existing rule which may be brought before the Division of Administrative Hearings is a challenge pursuant to Section 120.56, Florida Statutes. 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."

   
   

5. 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.

   
   

6. 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.

   
   

7. In this case, the Petitioner has alleged that Rule 33-12.001(2), Florida Administrative Code (hereinafter referred to as the "Challenged Rule"),

   constitutes an "invalid exercise of delegated legislative authority" in violation of Section 120.52(8)(c), (d) and (e), Florida Statutes.

   
   

8. The Petitioner has also alleged that the challenged rule is unconstitutional. 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).

   
   

   1. Burden of Proof.

      
      

9. 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).

   
   

   1. The Validity of Rule 33-12.001(2), Florida Administrative Code.

   
   

10. The Petitioner has alleged that the Challenged Rule is invalid pursuant to Sections 120.52(8)(c), (d) and (e), Florida Statutes.

    
    

11. Section 120.52(8)(c), Florida Statutes: The Petitioner has alleged that the Challenged Rule contravenes the specific provisions of law implemented. The law implemented by the Challenged Rule is Section 120.54(1)(a), Florida Statutes, which provides:

    
    

    1. Prior to adoption, amendment, or repeal of any rule not described in subsection (9), an agency shall give notice of its intended action, setting forth a short and plain explanation of the purpose and effect of the proposed rule, the specific legal authority under which its adoption is authorized, and a summary of the estimate of the economic impact of the proposed rule on all persons affected by it.

       
       

       1. Except as otherwise provided in this paragraph, the notice shall be mailed to the committee, to all persons named in the proposed rule, and to all persons who have made requests of the agency for advance notice of its proceedings at least 14 days prior to such mailing. The agency shall also give such notice as is prescribed by rule to those particular classes of persons to whom the intended action is directed. . . .

          
          

12. Section 120.54(4), Florida Statutes, provides that challenges to proposed rules, amendments and a repeal of a rule must be instituted by filing a petition within 21 days after "after the publication of the notice."

    
    

13. The Petitioner has argued that the Challenged Rule is contrary to the law implemented because it does not specify in Rule 33-12.001(2), Florida

    Administrative Code, that the notice to posted on institution bulletin boards must be posted at the time that notice is published in the Florida Administrative Weekly.

    
    

14. The Petitioner's argument ignores the provisions of Rule 33-12.001(1), Florida Administrative Code, which requires that prior notice is to be provided "as required in 120, F.S." The Challenged Rule, Rule 33-12.001(2), Florida Administrative Code, only specifies the means of providing notice.

    
    

15. The only reasonable interpretation of Rule 33-12.001(1), Florida Administrative Code, is that the types of notice required to be provided by the Challenged Rule must be provided at the times specified in Section 120.54, Florida Statutes. That is what the Respondent's rules, when read in their entirety, require as recognized by the Respondent in its proposed final order. It is not necessary that it also be specified in Challenged Rule when that notice be given since it is already specified in Rule 33-12.001(1), Florida Administrative Code.

    
    

16. Section 120.52(8)(d), Florida Statutes: The Petitioner has argued that the Challenged Rule is vague, fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency. This argument is premised in part on the position taken by counsel for the Respondent in the Motion for Summary Final Order that notice is to be provided "21 days prior to agency action." The Petitioner argues that this position and the provisions of the Challenged Rule create a "fundamental conflict" which "indicates that the guidelines set forth in the Rule are inadequate to guide agency decision making."

    
    

17. The Petitioner's position is without merit. As indicated above, Rule 33-12.001(1), Florida Administrative Code, requires that the types of notice required to be provided by in the Challenged Rule must be provided in accordance with Chapter 120, Florida Statutes. In order to comply with the requirements of Chapter 120, Florida Statutes, at least 21 days notice of proposed rule making must be provided. Therefore, in order to comply with Chapter 120, Florida Statutes, the Respondent is required to post notice of proposed rule making on bulletin boards at the same time or before notice is published in the Florida Administrative Weekly.

    
    

18. When the plain language of the Challenged Rule is given its plain meaning and is read in conjunction with Rule 33-12.001(1), Florida Administrative Code, it is apparent that the Challenged Rule is not vague, does not fail to establish adequate standards for agency decisions, and does not vest unbridled discretion in the agency.

    
    

19. Section 120.52(8)(e), Florida Statutes: Finally, the Petitioner has argued that the Challenged Rule is arbitrary or capricious. The Petitioner failed to cite any facts which support such a conclusion. His argument is based upon the incorrect assumption that the Challenged Rule does not specify when notice is to be published.

    
    

20. Emergency Rules. The Petitioner has argued that the Challenged Rule is invalid because it fails to require that notice be given of emergency rules. Even if it is assumed that such notice is required, it does not follow that what the Respondent has required through Rule 33-12.001, Florida Administrative Code, is invalid. At best, it might be concluded that the Respondent has simply not gone far enough or that the Respondent should consider adopting another rule

governing promulgation of emergency rules. Such a conclusion does not support a conclusion that the Challenged Rule is invalid.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petitioner has failed to prove that the Challenged Rule is

an invalid exercise of delegated legislative authority in violation of Section

120.56, Florida Statutes, and the Petitioner's Initial Petition is DISMISSED. DONE and ENTERED this 5th 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 5th day of March, 1992.

APPENDIX

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 Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1 See 1-2.

2-6 Not relevant.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

COPIES FURNISHED:

David Ansgar Nyberg #049898

Marion Correctional Institution Post Office Box 158

Lowell, Florida 32663

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: 92-000006RX

Orders for Case No: 92-000006RX