STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERESA BURNS, )

)

Petitioner, )

)

vs. ) Case No. 97-4538RP

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

1. This proceeding was initiated by a pleading dated September 23, 1997, which was prepared by the Petitioner before she became represented by counsel. For reasons set forth therein, on October 31, 1997, the undersigned entered an Order Setting Deadline for Filing Amended Petition and Reserving Date for Formal Hearing." On November 5, 1997, Petitioner, assisted by counsel, filed an "Amended Petition to Determine the Invalidity of an Existing and a Proposed Agency Rule." On November 10, 1997, Respondent filed "Respondent's Motion to Dismiss Amended Petition, and in the Alternative, Motion for Summary Final Order." Hearings on that motion filed by Respondent were held by telephone conference calls on November 19 and 20, 1997.

   
   

2. At issue in this proceeding is a challenge filed by Petitioner to an existing rule and a challenge to a proposed amendment to the existing rule. Respondent asserts that Petitioner lacks standing to bring these challenges.

   
   

3. There are no disputed issues of material fact that need to be resolved before the issues as to standing can be determined.

   
   

4. Petitioner is the spouse of an inmate incarcerated in the Florida prison system, who regularly visits her husband. Petitioner may only visit her husband pursuant to the rules of the Department. Petitioner does not allege that her opportunities to visit her husband have been

   limited by the application of the existing rule. Petitioner alleges no other standing.

   
   

5. Pursuant to Section 944.23, Florida Statutes, the spouse of an inmate may visit that inmate only under such regulations as the Department of Corrections may prescribe. Section 944.09(1)(n), Florida Statutes, provides, in pertinent part, as follows:

   
   

   (1) The department shall adopt rules governing the administration of the correctional system and the operation of the department, which rules shall relate to:

   
   

   * * *

   
   

   (n) Visiting hours and privileges.

   
   

6. Respondent has promulgated existing Rule 33- 5.008(2), Florida Administrative Code, and it proposes to amend a portion of that rule. The portion of the existing rule at issue in this proceeding is the following sentence: "Where visiting facilities are severely limited, the Assistant Secretary for Operations may authorize the Superintendent to restrict visiting to one day every other week, based on visiting patterns documented for a 2-month period." If the proposed amendment is adopted, the sentence would read as follows: "Where visiting facilities are severely limited, the Superintendent shall have the authority to restrict visiting to one day every other week, based on visiting patterns documented for a 2-month period."

   
   

7. The test for standing to challenge an existing or a proposed rule pursuant to Chapter 120, Florida Statutes, is two pronged. First, the party must establish that he or she will suffer injury in fact which is of sufficient immediacy to entitle the party to an administrative hearing. The asserted injury cannot be based on speculation or conjecture. Second, the injury must be to an interest that is arguably within the zone of interest to be protected or regulated by statute or constitution. Florida Society of Ophthalmoloqy v. State of Florida Board of Optometry, 532 So. 2d 1279, 1285 (Fla. 1st DCA 1988) (citing Aqrico Chemical Co. v. Department of Environmental Regulation, 406 So. 2d 478 (Fla: 2d DCA 1981). See also Florida Medical Association v. Department of Professional Regulation, 426 So. 2d 1112, 1117 (Fla. 1st DCA 1983), and

   Ward v. Board of Trustees of the Internal Improvement Fund, 651 So. 2d 1236 (Fla. App. 4th DCA 1995).

   
   

8. Pursuant to the existing rule, the Superintendent of a Florida prison is given authority to limit visitation privileges by the Assistant Secretary for Operations. The proposed amendment to the rule would vest the authority to limit visitation privileges in the Superintendent, thereby eliminating the necessity for the Assistant Secretary for Operations to confer authority on the superintendent. Because the proposed amendment deals solely with the internal management of the Department, the Petitioner has not and cannot establish that she is "substantially affected" by the amendment to the rule. Petitioner has not and cannot establish that she meets the first prong of the standing test to challenge the proposed amendment to the existing rule.

   
   

9. Petitioner argues that her right to visit her husband will be subject to the unbridled discretion of the Superintendent if the proposed amendment goes into effect. She argues that the first prong of the standing tests does not require her to wait to challenge the proposed amendment and existing rule until after she has been harmed by the application thereof. Petitioner relies on Ward v. Board of Trustees of the Internal Improvement Fund, supra; Professional Firefighters of Florida, Inc. v. Department of Health and Rehabilitative Services, 396 So. 2d 1194 (Fla. 1st DCA 1981); and Mother's Lounge, Inc. v. Division of Beverage, 348 So. 2d 934 (Fla. 1st DCA 1997), in support of that argument. Such reliance is misplaced for two reasons. First, as discussed below, Petitioner has no legal right to visit her husband. Second, each of the cases cited by Petitioner involved a rule that required compliance by the non-agency party so that the issue of whether the proposed or existing rule would apply to the non-agency party was not based on speculation or guess-work. In each of the cases cited by Petitioner, the non-agency party had to comply with the rule or refuse to do so at its peril.

   Those cases did not undermine the first prong of the two- prong standing test by eliminating the requirement that a party challenging a proposed or existing rule establish that the party will suffer injury in fact which is of sufficient immediacy to entitle the party to an administrative hearing. Those cases held that each respective challenging party had met that requirement

   because, in each case, the alleged potential injury was found to be immediate and not speculative. In contrast to those cases, the Petitioner in this proceeding is not required to comply with the existing rule or the proposed amendment. Since the existing rule and the proposed amendment are not self-executing, Petitioner's interests can be impacted only if a superintendent acts to limit visitation privileges at the prison in which her husband is incarcerated. Whether that will ever happen is speculative. It is concluded that Petitioner lacks standing to challenge both the proposed amendment to the rule and the existing rule because she cannot meet the first prong of the standing test. Consequently, the instant challenges to the existing rule and the proposed amendment should be dismissed. See Florida Department of Offenders Rehabilitation v. Jerry, 353 So. 2d 1230 (Fla.

   1st DCA 1978), cert. den., 359 So. 2d 1215 (Fla. 1978).

   
   

10. Having concluded that Petitioner fails to meet the first prong of the two-prong test, it is appropriate to turn to the second prong of the test which requires that the injury must be to an interest that is arguably within the zone of interest to be protected or regulated by statute or constitution.

    
    

11. Petitioner's interests will not be affected by the proposed amendment to the rule. Consequently, Petitioner has not and cannot satisfy the second prong of the standing test as to the proposed amendment to the rule.

    
    

12. Petitioner has established that the challenged existing rule could have an effect on her interests, since the existing rule sets forth the criteria to be used in limiting visitation rights at a prison. The undersigned recognizes that those interests are of substantial importance to the Petitioner and to those similarly situated. If a superintendent restricts the visiting privileges of Petitioner's husband, Petitioner's ability to visit him will be restricted. The question becomes: are her interests arguably within the zone of interest to be protected or regulated by statute or constitution? Based on the present status of the law, this question is answered in the negative. While she is undoubtedly governed by the visiting rules of the Department, it is the inmate's privilege to receive the visitor, not the visitor's right to see the inmate. If, for example, Petitioner's husband did not care to visit with her, Petitioner would have no

    legal right to force a visit. In the absence of a right to visit or some other right that is to be protected or regulated by statute or constitution, Petitioner cannot satisfy the second prong of the standing test. Therefore, the instant challenges to the existing rule and the proposed amendment should be dismissed.

    
    

13. The rights of prisoners to participate in Chapter

    120 proceedings have been limited pursuant to Section 120.81(3), Florida Statutes. As was observed by Judge James W. York in his Final Order entered September 19, 1996, in Florida Prisoner's Legal Aid Organization, Inc., and Teresa Burns vs. Department of Correction, DOAH Case 96-2943RX, the intent of the Legislature should not be eroded by permitting others to litigate in the stead of a prisoner:

    
    

    However, there are a myriad of circumstances in which the direct regulation of prisoners in the custody of the Respondent might indirectly affect Petitioners. The geographic assignment of prisoners, visitation times, disciplinary actions for prisoner infractions, even personal property prisoners are permitted to possess are issues that might indirectly affect the relatives of inmates. However, the Legislature has clearly defined limits on standing to challenge the DOC rules regarding the regulation of prisoners and to permit such challenges in the manner Petitioners seek to do would circumvent this legislative intent.

    
    

14. Based on the uncontroverted facts pertaining to standing and applicable law, it is ORDERED that the Amended Petition filed by Petitioner be, and the same hereby is, DISMISSED on the grounds that Petitioner does not have standing to challenge either the existing rule or the proposed amendment to the rule.

DONE AND ORDERED this 8th day of December, 1997, in Tallahassee, Leon County, Florida.

_

CLAUDE B. ARRINGTON

Administrative Law Judge Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings

this 8th day of December, 1997.

ENDNOTE

1/ Because the amendment merely designates the person employed by the Department with the authority to limit visitation privileges, the amendment, taken alone, is an internal management memoranda that is exempt from the definition of the term "rule" pursuant to Section 120.52(15)(a), Florida Statutes. See Anthony Lawrence v. Department of Health and Rehabilitative Services, DOAH Case 95-5585RU, and the cases cited therein. This exemption is consistent with the conclusion that the amendment, when considered alone, will not adversely impact the substantial interests of the Petitioner.

COPIES FURNISHED:

Ms. Teresa Burns

14365 East Colonial Drive Suite 1-A

Orlando, Florida 32826

Glen M. Boecher, Esquire Florida Institutional Legal

Services, Inc.

1110-C Northwest 8th Avenue Gainesville, Florida 32601

Ann Cocheu, Esquire

Office of the Attorney General The Capitol, Plaza 01 Tallahassee, Florida 32399-1050

Liz Cloud, Chief

Bureau of Administrative Code The Elliott Building Tallahassee, Florida 32399-0250

Carroll Webb

Executive Director and General Counsel Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

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. Alternatively, a party adversely affected by this Final Order may bring a civil action filed in circuit court under Section 230.23(4)(m)5., Florida Statutes (Supp. 1990), or bring a civil action in Federal Court.

Docket for Case No: 97-004538RP

Orders for Case No: 97-004538RP