STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES J. PETERS, )

)

Petitioner, )

)

vs. ) CASE NO. 79-308RX

) DEPARTMENT OF HIGHWAY SAFETY AND ) MOTOR VEHICLES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a hearing on Respondent's Motion to Dismiss the Petition in the above styled case for lack of standing. As grounds therefor Respondent contends Petitioner's prior mandamus action in the Circuit Court resolved the ultimate issues and, as a result, Petitioner has no standing to challenge Respondent's interpretation of Section 321.07(3)(a), Florida Statutes, as a rule.

APPEARANCES

For Petitioner: Mallory E. Horne, Esquire

Gregory Satchell, Esquire 800 Barnett Bank Building Post Office Drawer 1140 Tallahassee, Florida 32302

For Respondent: Michael J. Alderman, Esquire

Assistant General Counsel Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32301 FINDINGS OF FACT

1. The facts are undisputed. Petitioner was employed by Respondent as a trooper in the Florida Highway Patrol for just under 10-1/2 years, after which time he retired on 1 May 1976. Retired pay was commenced and Petitioner received his first retired pay on or about 1 June 1976.

   
   

2. On 1 June 1976 Petitioner wrote a letter to Respondent requesting presentation of his uniform, badge and service revolver pursuant to Section 321.07(3)(a), Florida Statutes. By letter dated 16 June 1976, Colonel J. E. Beach, Director, Florida Highway Patrol, denied Petitioner's request, stating "The intent of the statute is to authorize the Department to issue a complete uniform, etc., to those officers who have completed full retirement and does not include early retirement."

3. Petitioner then filed an action for Writ of Mandamus in the Circuit Court in and for Leon County. By Order dated 27 October 1977, the Circuit Court dismissed Petitioner's petition for Writ of Mandamus, holding that Section 321.07(3)(a), Florida Statutes, "authorized" the Department to present uniform, badge and gun and that Respondent had uniformly implemented the statute by presenting these items to every member of the Florida Highway Patrol who retires with full normal retirement and not presenting these items to those members who retire under early retirement. The Court found no evidence of discrimination in this implementation of the Statute and that the distinction between full, or normal, retirement and early retirement is a reasonable classification which does not constitute an abuse of discretion.

   
   

4. In per curiam Opinion filed June 19, 1978, the First District Court of Appeal affirmed the decision of the Circuit Court.

   
   

5. On 7 February 1979, the Petitioner filed a Petition for Administrative Determination that Respondent's interpretation of Section 321.07(3)(a), Florida Statutes, is a rule and invalid by reason of not having been adopted pursuant to the procedural requirements of Chapter 120, Florida Statutes "as well as because it is based upon an unlawful classification amounting to discrimination." Respondent moved to dismiss the petition, alleging that Petitioner is without standing to bring this action. This question of standing is the sole issue here under consideration.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

7. Here Petitioner's claim of injury is that he has been wrongfully denied the presentation to him of his uniform, badge and gun, as authorized by Section 321.07(3)(a), Florida Statutes, which provides:

   
   

   The Department of Highway Safety and Motor Vehicles is authorized to present to every member of the highway patrol who retires under the provisions of this chapter or under any of the provisions of Chapter 121, one complete highway patrol uniform, including the badge and service revolver, worn by the emmber prior to his retirement. Any member who has retired prior to the effective date of this act and has not received a complete highway patrol uniform as authorized herein shall be entitled to receive same.

   
   

8. The right of Petitioner to have these items presented to him has been adjudicated in the proceedings he instituted in the Circuit Court. As stated in State ex rel. Neafie v. Butler, 10 So.2d 572 (Fla. 1942) at p. 574:

   
   

   It is generally recognized that where a mandamus proceeding has been heard and decided on its merits, the judgment rendered is conclusive against the parties and the several issues of law and all matters of fact directly involved and determined, and stands as the law

   of the case until reversed or set aside. When the court had jurisdiction of the parties and subject matter of the litigation in a in a mandamus proceeding, its judgment therein rendered cannot be collaterally attacked.

   
   

9. As to matters directly in issue and decided by the judgment in mandamus, it concludes the parties and their privies in subsequent litigation between them. Sauls v. Freeman, 4 So. 525 (Fla. 1888). As the court stated in Sauls, supra at p. 531:

   
   

   If the judgment in mandamus was not as effectual, upon the principle of res adjudicata, against the inhabitants of the county as it is against the county commissioners, there would be no end to litigation in such cases, or in any cases against county officials as such.

   
   

10. This judgment in mandamus operates as a bar to a second suit between the same parties or their privies on the same cause of action, and concludes them in that second suit as to all claims or demands actually in litigation and decided, or which might have been put in issue and determined. Sauls, supra.

    
    

11. Since Petitioner's right to receive uniform, badge and gun has been judicially determined, he no longer has standing to further contest thins issue in the proceedings here instituted. Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1 DCA 1978). In Jerry, the court held that the prisoner, because he had already served the disciplinary confinement which gave rise to his petition attacking the rule under which he was punished, failed to meet the threshold requirement of standing.

    
    

12. Similarly, in Department of HRS v. Alice P. et al., 367 So.2d 1045 (Fla. 1 DCA 1979) the court held that petitioners not in position to be affected by the proposed rule had no standing to challenge the rule. Likewise, Petitioner here cannot be substantially affected by the interpretation challenged as an invalid rule. The issue of Petitioner's right to the uniform, badge and gun has been adjudicated and he does not have standing to relitigate this issue.

    
    

13. From the foregoing it is concluded that Petitioner's right to the presentation of uniform, badge and gun has been adjudicated adversely to him in the mandamus proceeding and he does not have standing to again contest the Respondent's interpretation of Section 321.07(3)(a), Florida Statutes. It is therefore

ORDERED that the Petition of James J. Peters to have the Department of Highway Safety and Motor Vehicles' interpretation of Section 321.07(3)(a), Florida Statutes, found to be a rule and invalid because not promulgated as prescribed by Chapter 120, Florida Statutes, be dismissed.

Entered this 14th day of May, 1979.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Mallory E. Horne, Esquire Gregory Satchell, Esquire Post Office Drawer 1140 Tallahassee, Florida 32302

Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32301

Docket for Case No: 79-000308RX

Orders for Case No: 79-000308RX