STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS LaVERNE ADAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2674RX

) FLORIDA PAROLE AND PROBATION ) COMMISSION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a final hearing in this cause on September 27, 1983, at Union Correctional Institution.

APPEARANCES

For Petitioner: Douglas LaVerne Adams, pro se and

Gary M. Piccirillo, As Qualified Representative for Petitioner

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

For Respondent: John C. Courtney, Esquire and

Doris E. Jenkins, Esquire Assistant General Counsel

Florida Parole and Probation Commission 1309 Winewood Boulevard

Tallahassee, Florida 32301

Petitioner has challenged the validity of Rules 23-21.02(2) and 23-21.11(3), Florida Administrative Code, pursuant to the provisions of Section 120.56, Florida Statutes.

Final hearing in this cause was scheduled for September 27, 1983, by Notice of Hearing dated September 6, 1983. At the final hearing Petitioner testified in his own behalf, and offered Petitioner's Exhibits 3 through 11, which were received into evidence. Respondent called no witnesses, and offered

Respondent's Exhibits 1 through 6, which were received into evidence.

Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this order, they have been Specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. Petitioner was initially interviewed for the purpose of establishing a presumptive parole release date ("PPRD") on December 14, 1981.

   
   

2. Petitioner could not be interviewed prior to December 14, 1981, because he had been released from the custody of the Department of Corrections pursuant to a supersedes bond on July 16, 1979, and was not returned to the custody of the Department of Corrections until February 26, 1981.

   
   

3. Petitioner received a two-year commitment for two counts of uttering a forged instrument, which commitment was imposed on February 17, 1981.

   
   

4. Petitioner's two-year commitment for possession of a controlled substance which had been imposed on November 27, 1978, expired on July 29, 1981.

   
   

5. Petitioner's current PPRD was established for November 11, 1991, by Commission action taken at a meeting held on January 13, 1982.

   
   

6. Petitioner is scheduled for biennial review of his PPRD in October of 1983.

   
   

7. Rules 23-21.11(3) and 23-21.02(2), Florida Administrative Code, were amended August 1, 1983, after the

   establishment of Petitioner's PPRD.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding. Section 120.56, Florida Statutes.

   
   

9. Section 120.56(1), Florida Statutes, provides, in pertinent part, that:

   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. (Emphasis added.)

   
   

10. A party challenging the validity of an existing rule bears the burden of proving his standing to maintain such a challenge when, as here, such standing is made an issue in the proceeding. Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA 1979) In order to sufficiently establish standing to challenge a rule, a petitioner must show "....that the rule has a real and immediate effect upon one's case as well as injury in fact ...." All Risk Corporation v. Department of Labor and Employment Security, 413 So.2d 1200, 1202 ( Fla. 1st DCA 1901)

    
    

11. Petitioner in this proceeding has not been affected by the challenged rule, in that the establishment of his PPPD was governed by the Respondent's rule which was in effect on January 20, 1982, when his PPRD was established. The rules challenged in this proceeding differ markedly from those in effect at the time Petitioner's PPRD was established, and have, in fact, not been applied to Petitioner in any manner. Further, Respondent is specifically prohibited from changing Petitioner's PPRD as established under the old rule except for reasons of institutional conduct or the acquisition of new information not available at the time of his initial interview. Section 947.160(4), Florida Statutes. Petitioner has, therefore, failed to establish that he has suffered sufficient direct, special, specific, real, and immediate injury so as to allow him to maintain this proceeding. Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA l978).

    
    

12. Petitioner having failed to establish that he is "substantially affected" sufficiently to allow him to maintain a challenge to the subject rules, the relief sought by Petitioner should be, and the same is hereby denied, and the Petition dismissed.

DONE AND ENTERED this 29th day of March, 1984, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1984.

COPIES FURNISHED:

Douglas LaVerne Adams

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Gary M. Piccirillo Lake City Community

Correctional Center Post Office Box 777

Lake City, Florida 32055

John C. Courtney, Esquire Doris E. Jenkins, Esquire Florida Parole and Probation

Commission

1309 Winewood Boulevard

Tallahassee, Florida 32301

Enoch J.Whitney, Esquire General Counsel

Florida Parole and Probation Commission

1309 Winewood Boulevard

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code Department of State

Suite 1802, The Capitol Tallahassee, Florida 32301

Carroll Webb, Executive Director

Joint Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 83-002674RX

Orders for Case No: 83-002674RX