STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAY B. STOEBER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2340RU

) PAROLE AND PROBATION COMMISSION, )

)

Respondent. )

)

FINAL

ORDER OF DISMISSAL

By Petition to Determine the Invalidity of Unpromulgated Rules, Jay B. Stoeber, Petitioner, seeks to have the decision of the Parole Commission to extend his Controlled Release date declared to be a rule and invalid by reason of being unpromulgated.

There are several legal concepts involved in a rule challenge where the "rule" challenged is unpromulgated.

First, as stated by the court in State v. Department of Administration v. Stevens, 344 So.2d 290, 296 (Fla. 1st DCA 1977), the DOAH Hearing Officer has the authority to determine if agency directives are rules; and, if it is found the directives are rules and have not been promulgated in accordance with the procedures established in Section 120.54, Florida Statutes, the rules are void.

Second, this automatic voidance of a rule was modified in McDonald v.

Department of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977), where the court stated:

While the Florida APA thus requires rule making for policy statements of general applicability, it also recognizes the inevitability and desir- ability of refining incipient agency policy through adjudication of individual cases. There are quantitative limits to the detail of policy that can effectively be promulgated as rules, or assimilated; and even the agency that knows its policy may wisely sharpen its purposes through adjudication before casting rules. * * * By requiring agency explanation of any deviation from "an agency rule, an officially stated policy, or a prior agency practice," Section 120.68(12)(b) recognizes that there may be "officially stated agency policy" otherwise

than in "an agency rule"; and, since all agency action tends under the APA to become

either a rule or an order, such other "officially stated agency policy" is necessarily recorded in agency orders. (citations omitted)

In Florida Cities Water Company v. Florida Public Service Commission, 348 So.2d 1280 (Fla. 1980), the Florida Supreme Court considered the authority of the PSC to disallow certain deductions in a rate making proceeding when rules pertaining to these deductions had not been promulgated. The court there stated at p. 1281:

Petitioner first argues that the Commission has announced a rule, as that term is defined in Section 120.52(14), but that in doing so the Commission failed to follow appropriate procedures for rule making as set out in Section 120.54.

Quite clearly the Commission did not announce

its new policy in a rule proceeding -- nor was it required to do so. Administrative agencies are not required to institute rulemaking procedures each time a new policy is developed although that form of proceeding is preferable where established industry-wide policy is being altered.

Nonetheless, when an agency elects to adopt incipient policy in a nonrule proceeding, there must be adequate support for its decision in the record of proceedings. (citations omitted)

This legal principle was further explicated in Barker v. Board of Medicine, Dept. of Professional Regulation, 428 So.2d 720, 722 (Fla. 1st DCA 1983), where the court stated:

The fact, however, that no rule was extant at the time Barker applied for licensure does not necessarily mean the Board's action was void. The time has long since passed (if it ever existed) that agency action was mechanically

invalidated simply because no rule was in effect.

Our academic endeavors in attempting to label the action either rule or nonrule to determine

whether or not it fell within section 120.54(14)'s definition of a rule have now been largely dis- carded. There are, however, costs executed upon an agency which avoids the rulemaking procedure provided by section 120.54, chief among those being that the agency may be required repeatedly to defend its nonrule policy in each case.

Petitioner is here attempting to challenge the action of the Parole and Probation Commission in extending his controlled release date. That action took the form of an order--not a rule. The proper form in which to challenge action taken or proposed to be taken by an agency is in a Section 120.57 proceeding.

The fact that Petitioner is statutorily precluded from that forum does not open the door to adjudicate the same issue in a Section 120.56 proceeding.

Applying the above principles to the case at hand, it is clear that even if the alleged unpromulgated rule is determined to come within the Section 120.54(14) definition, in a 120.57 proceeding brought to challenge the agency action as it affects the party alleging injury, the agency would have the opportunity to show that the action taken under the unpublished rule, incipient agency action or emerging policy (whatever nomenclature is given) is in conformity with the agency's statutory authority.

In considering the application of unpromulgated agency policy, the court in St. Francis Hospital v. Department of Health and Rehabilitative Services, 553 So.2d 1351, 1354 (Fla. 1st DCA 1989) stated:

We recognize that an agency interpretation of a statute which simply reiterates the legislature's statutory mandate and does

not place upon the statute an interpretation that is not readily apparent from its literal reading, nor in and of itself purport to create rights, or require compliance, or to otherwise have the direct and consistent effect of the law, is not an unpromulgated rule, and actions based upon such an inter- pretation are permissible without requiring an agency to go through rule making.

Third, legal maxims extending back to antiquity (authorities cited in Black's Law Dictionary, Third Edition) are replete with the dogma that the law requires no one to do useless things.

Petitioner here seeks to challenge the Parole and Probation Commission's action in extending his control release date. But for the statutory ban placed on prisoners his proper forum would be a Section 120.57 proceeding. Here he seeks to accomplish this end by claiming the Commission acted without first promulgating rules. As noted in the cases above cited, this is a proper procedure for agencies to follow. Furthermore, even if this case went to hearing, the action of the Commission was held to be an unpromulgated rule, and Respondent failed to sustain the action taken as incipient agency action or emerging policy, no order directing a change in Petitioner's controlled release date could be entered. That issue is not before this tribunal. Since Petitioner cannot get the relief sought in these

proceedings, no useful purpose can be served by proceeding to hearing.

From the foregoing, it is concluded that proceeding to hearing on a challenge to an amorphous policy or rule which has not been reduced to writing would constitute a vain or useless exercise. It is therefore

ORDERED that the Petition of Jay B. Stoeber purporting to challenge an unpromulgated rule of the Parole and Probation Commission be dismissed.

DONE and ORDERED this 30th day of April, 1992, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1992.

Copies furnished to:

Jay B. Stoeber B815529

Apalachee Correctional Institution Post Office Box 699-W

Seads, FL 32460

William Camper, Esquire

Parole and Probation Commission Building 6, Suite 338

1309 Winewood Boulevard

Tallahassee, FL 32399-3000

Carroll Webb Executive Director

Administrative Procedures Committee Room 120, Holland Building Tallahassee, FL 32399-1300

Liz Cloud Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, FL 32399-1300

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: 92-002340RU

Orders for Case No: 92-002340RU