STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN B. RUNKLES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5697RP

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

On September 22, 1992, the Petitioner, John B. Runkles, filed a Request for Administrative Determination with the Division of Administrative Hearings. In the Request, Mr. Runkles, among other things, alleged the following:

COMES NOW, John B. Runkles, hereinafter Petitioner, pursuant to Florida Statutes ss

120.54 (4)(a); 120.52 and hereby Petitions the Division of Administrative Hearings to convene a hearing, to make a final determination, in that the application of Chapter 33-4.010 and Chapter 22A, Florida Administrative Code, to my particular situation is an invalid delegation of legislative authority and in direct violation of Florida Statutes s 760.10(1)(a) and (b) . . . .

Mr. Runkles named the Department of Corrections and Glades Correctional Institution as the Respondents in his Request. The Department of Administration (now the Department of Management Services), the agency that promulgated Chapter 22A, Florida Administrative Code, was not named as a Respondent.

By Order of Assignment entered September 23, 1992, Mr. Runkles' Request was assigned to the undersigned. On September 25, 1992, a Notice of Hearing was entered scheduling the final hearing of this case for October 23, 1992.

On October 1, 1992, the Department of Corrections (hereinafter referred to as the "Department") filed a Motion to Dismiss in this case. In the motion the Department argued that this case should be dismissed because: (1) Mr. Runkles is challenging the application of Rule 33-4.010 and Chapter 22A, Florida Administrative Code, to his particular circumstances; (2) Mr. Runkles has failed to allege sufficient facts to show that the rules being challenged are an invalid exercise of delegated legislative authority; and (3) the rules being challenged are existing rules. No response to the motion was filed by Mr.

Runkles prior to October 12, 1992, the date that Mr. Runkles' response to the motion to dismiss was due.

On October 13, 1992, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Final Hearing was entered. Pursuant to the October 13, 1992, Order this case was dismissed and Mr. Runkles was given until October 26, 1992, to file an amended petition.

After the October 13, 1992, Order of dismissal had been mailed, a response to the motion to dismiss was received from Mr. Runkles. Mr. Runkles also filed an amendment to his Request. The amendment that Mr. Runkles proposed did not, however, correct the deficiencies of his original request for hearing.

Consequently, an Order Concerning Amendment to Petitioner's Request for Administrative Hearing was entered on October 20, 1992, informing Mr. Runkles that his amendment was not sufficient. Mr. Runkles was also informed that he still had until October 26, 1992, to file an amended request for hearing in compliance with the October 13, 1992, Order of dismissal. Mr. Runkles has not filed another amendment.

On October 29, 1992, an Order Authorizing Filing of Proposed Final Orders was entered. The parties were informed that a final order of dismissal would be entered in this case on or before November 30, 1992. The parties were also informed that they could file proposed final orders on or before November 9, 1992. Neither party has filed a proposed final order.

CONCLUSIONS OF LAW

Mr. Runkles has filed his Request for Administrative Determination pursuant to Section 120.54(4)(a), Florida Statutes. Section 120.54(4)(a), Florida Statutes, provides:

(a) Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority [Emphasis added].

Mr. Runkles has not challenged a "proposed rule" of the Respondent or the Department of Management Services. Instead, Mr. Runkles has attempted to challenge an existing rule of the Department and existing rules of the Department of Management Services. A challenge to existing rules may not be instituted pursuant to Section 120.54(4)(a), Florida Statutes.

Mr. Runkles has also failed to challenged the language or specific requirement of any rule. Instead, Mr. Runkles has merely attempted to challenge the alleged application of a rule of the Department to him. As pointed out by the Department, the wrongful or erroneous application of a rule does not constitute grounds for declaring a rule invalid. Harper v. Department of Administration, 459 So.2d 398 (Fla. 1st DCA 1984).

The only relief which may be sought pursuant to Section 120.54(4)(a), Florida Statutes, is a determination of the invalidity of a proposed rule on the ground that the proposed rule is an "invalid exercise of delegated legislative authority." 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.

In order to challenge a proposed 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.

In this case, Mr. Runkles failed to allege that the challenged rules constitute an "invalid exercise of delegated legislative authority." Mr. Runkles also failed to allege with particularity which portion(s) of the definition cited above the challenged rules violate or the specific facts supporting such an allegation.

Finally, the naming of Glades Correctional Institution as a Respondent is not appropriate. Challenges pursuant to Section 120.54, Florida Statutes, are limited to proposed rules of an "agency." Glades Correctional Institution is not an "agency" as defined in Section 120.52(1), Florida Statutes.

ORDER

Based upon the foregoing, it is

ORDERED that the Request for Administrative Determination, as amended, filed by John B. Runkles, is DISMISSED.

DONE and ENTERED this 24th day of November, 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 24th day of November, 1992.

COPIES FURNISHED:

John B. Runkles

Glades Correctional Institution

500 Orange Avenue Circle

Belle Glade, Florida 33430-5222

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

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250

Harry K. Singletary, Jr., Secretary Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

Louis A. Vargas General Counsel

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: 92-005697RP

Orders for Case No: 92-005697RP