STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS ADAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1268RXP

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

On February 18, 1992, the Petitioner, Douglas Adams, filed a pleading titled "Petition to Determine the Invalidity of Existing Rule" (hereinafter referred to as the "Petition") challenging the validity of Rule 33-22.012, 3-12, Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), pursuant to Section 120.56, Florida Statutes. On February 25, 1992, an Order of Assignment was entered assigning this case to the undersigned.

On February 28, 1992, the Respondent, the Department of Corrections, filed a Motion to Dismiss. In the motion the Respondent essentially argued that the Petitioner's allegations concerning the Challenged Rule are incorrect on the face of the Challenged Rule. The Respondent requested, therefore, that the Petition be dismissed. On March 9, 1992, the Petitioner filed Petitioner's Response to Motion to Dismiss.

On March 23, 1992, an Order Granting Motion to Dismiss With Leave to Amend and Cancelling Formal Hearing was entered. In the March 23, 1992, Order the Petitioner was informed that his Petition was being dismissed for the reasons set out in the motion to dismiss. The parties were informed that the motion to dismiss was granted. The parties were informed that they could file proposed final orders on or before April 13, 1992, and that a final order would be entered on or before May 4, 1992.

The parties have not filed proposed final orders.

FINDINGS OF FACT

1. On February 18, 1992, the Petitioner, Douglas Adams, filed a Petition to Determine the Invalidity of an Existing Rule.

   
   

2. In the Petition, the Petitioner challenged Rule 33-22.012, 3-12, 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 Rule.

5. 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.

   
   

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. Chapter 33-22, Florida Administrative Code, contains rules governing "inmate discipline." Those rules provide the general policy of the Respondent concerning inmate discipline (Rule 33-22.001), terminology and definitions (Rule 33-22.002), the procedures for taking disciplinary action against inmates (Rules 33-22.003-33-22.010), and the "Rules of Prohibited Conduct and Penalties for Infractions (the Challenged Rule).

   
   

8. Rule 33-22.012, Florida Administrative Code, provides, in pertinent part, the following:

   
   

   33-22.012 Rules of Prohibited Conduct and Penalties for Infractions. The following table shows established maximum penalties for the indicated offenses. As used in the table, "DC" means the maximum number of days of disciplinary confinement that may be imposed and "GT" means the maximum number of days of gain time that may be taken. Any portion of either penalty may be applied. "All GT" includes both earned and unearned gain time. In addition to the penalties listed below, inmates may be required to pay for damaged, destroyed or misappropriated property under the provisions of rule 33-22.008(2)(b)13.

   . . . .

   
   

9. Rule 33-22.012, Florida Administrative Code, includes a table listing of various offenses for which disciplinary action may be taken and the maximum penalty for such offenses.

   
   

10. The Challenged Rule provides that "Possession of any other contraband" is an offense for which discipline may be imposed on inmates. The Challenged Rule also provides that the maximum penalty for this offense is 15 days of disciplinary confinement and loss of 30 days gain time.

    
    

11. The Challenged Rule does not include a definition of "contraband."

    
    

12. Rule 33-22.012, 3-1 to 3-11, Florida Administrative Code, designates the possession of certain specific items of contraband to be a ground for discipline and provides the maximum penalty therefore.

    
    

13. The Petitioner has alleged, in part, that the Challenged Rule is invalid because it:

    
    

    . . . constitutes an invalid rule where the rule has exceeded its grant of authority as contain in 944.47, Florida Statutes (1991), in that the rule seeks to define contraband to be "any other contraband" not defined as such by enabling legislation contrary to Section 120.52(8)(b), Florida Statutes (1991). As matter of fact, the rule . . . goes beyond the

    statutory definition of contraband with the inclusive phrase "any other contraband" without more. . . .

    
    

    The Petitioner also alleged that the Challenged Rule is invalid pursuant to Section 120.52(8)(c), Florida Statutes, for essentially the same reason.

    
    

14. The Petitioner further alleged that the Challenged Rule is vague and vest unbridled discretion in the Respondent because of the failure to define "any other contraband" in the Challenged Rule.

    
    

15. Finally, the Petitioner alleged that the Challenged Rule is arbitrary and capricious because there is "no logical basis in fact to condemn legally lawful material as contraband with the phrase 'any other'.

    
    

16. Rule 33-3.006, Florida Administrative Code, provides a definition of the term "contraband." There is, therefore, no reason to further define the term "contraband" used in the Challenged Rule. The reference to "any other" is merely an indication that the penalty provided for in the Challenged Rule is for the possession of any contraband (as defined elsewhere) other than contraband specifically listed in Rule 33-22.012, 3-1 through 3-11.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. 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. . . .

       
       

19. The only relief which may be sought pursuant to Section 120.56, Florida Statutes, is a determination of the invalidity of a rule on the ground that the rule is an "invalid exercise of delegated legislative authority."

    
    

20. 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.

    
    

21. 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.

    
    

22. In the Petition filed in this case it was alleged that the Challenged Rule constitutes an "invalid exercise of delegated legislative authority". It was also alleged that the Challenged Rule is invalid because the Respondent has exceeded its grant of rule making authority and the Respondent has enlarged, modified or contravened the provisions of law implemented, and that the Challenged Rule is vague and vest unbridled discretion in the Respondent and is arbitrary and capricious.

    
    

23. Based upon the plain language of the Challenged Rule, read in pari materia with all of Chapter 33-22, Florida Administrative Code, and the other rules of the Respondent, the Challenged Rule is not invalid as alleged by the Petitioner. The Challenged Rule specifies one of several offenses which may result in disciplinary action and provides the maximum penalty which may be imposed for the infraction. Although it is true that the terms used in the Challenged Rule, "any other contraband", are not specifically defined in the Challenged Rule, that does not support a conclusion that the Challenged Rule is invalid. The pertinent term used in the Challenged Rule, "contraband", is defined elsewhere in the Respondent's rules. Therefore, it is not necessary to also include the definition in the Challenged Rule.

    
    

24. Based upon the clear language of the Challenged Rule, it is concluded that the Petitioner has failed to provide a sufficient statement of the particular facts which the Petitioner believes support his allegation that the Challenged Rule is invalid. The facts which the Petitioner has alleged, even if proved, would not support a conclusion that the Challenged Rule is invalid.

    
    

25. To the extent that the Petitioner has alleged that the Challenged Rule has been improperly applied to him by the Respondent, those contentions have not been addressed. The application of a rule cannot be raised as an issue in a proceeding brought pursuant to Section 120.56, Florida Statutes. Hasper v. Department of Administration, 459 So.2d 398 (Fla. 1st DCA 1984).

ORDER

Based upon the foregoing, it is

ORDERED that the Petitioner has failed to allege sufficient facts which, if proved, would support a conclusion that Rule 33-22.012, 3-12, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority in violation of Section 120.56, Florida Statutes. Accordingly, the Petition to Determine the Invalidity of Existing Rule 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:

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: 92-001268RX

Orders for Case No: 92-001268RX