STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY M. PICCIRILLO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3284RX

)

FLORIDA PAROLE AND )

PROBATION COMMISION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on November 16, 1983, at Union Correctional Institution, Raiford, Florida.

APPEARANCES

For Petitioner: Gary M. piccirillo, pro se

Lake City Community Correctional Center Post Office Box 777

Lake City, Florida 32055

For Respondent: John C. Courtney, Esquire

Assistant General Counsel

Florida parole and Probation Commission 1309 Winewood Boulevard

Tallahassee, Florida 32301

Petitioner, an inmate incarcerated under the custody and control of the Florida Department of Corrections, challenges the validity of amendments to Chapter 23-20, Florida Administrative Code, effective October 1, 1982. specifically, Petitioner contends that those amendments constitute an invalid exercise of delegated legislative authority in that they were proposed and adopted without affording inmates, including Petitioner, adequate notice of the intended action pursuant to Section 120.54(1)(a) , Florida Statutes, and Rule 23-15.02, Florida Administrative Code. Respondent contends that Petitioner lacks standing to maintain this rule challenge because he has failed to demonstrate that he has suffered an adverse impact as a result of the rule's application to his case. Respondent also contends that amendments to Chapter 23-20, Fiorida Administrative Code, reoresent a valid exercise of delegated legislative authority because they were promulgated in accordance with all applicable requirements of Chapter 120, Florida Statutes.

Final hearing in this cause was Scheduled for November 16, 1983, by Notice of Hearing dated October 20, 1983. At the final hearing Petitioner testified in his own behalf and called Jay Edwards, Cecil Crews, Harry Rade, Winston Lloyd, John Michael Russell, and Jimmy Rogers as his witnesses. Respondent called no

witnesses but offered Respondent's Exhibit 1, which was received into evidence without objection.

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

At all times material hereto Petitioner was incarcerated at Union Correctional Institition within the custody and control of the Department of Corrections. On or about March 1, 1983, Petitioner submitted a request to be admitted to the Mutual Participation Program, also known as ''Contract Parole." Thereafter, Petitioner was considered for eligibility for that program by a classification specialist employed by the Department of Corrections and a parole examiner employed by the Parole and Probation Commission. On April 22, 1983, these two officials recommended against Petitioner's request based on Petitioner's "extensive criminal history," "history of drug abuse in the past," his escape from minimum custody while a patient at the Veteran's Administration hospital in Gainesville in December of 1979, and his involvement in a prison disturbance at Marion Correctional Institute in 1978.

Chapter 23-20, Florida Administrative code, entitled Mutual participation Program was first adopted by Respondent on September 10, 1981. Respondent conducted rulemaking proceedings in 1982 which resulted in amendments to various portions of Chapter 23-20, Florida Administrative Code. These amendments became effective October 1, 1982. During the course of the rulemaking proceeding, Respondent published notice of the proposed changes in the Florida Administrative Weekly and, in addition, forwarded copies of the proposed changes to all Department of Corrections offices, including each correctional institution. The record in this cause is unclear as to whether these proposed changes were ever posted in the law library or other office at Union Correctional Institution. Petitioner contends that he was never afforded notice of the proposed amendments to Chapter 23-20, Florida Administrative Code, and library officials at Union Correctional Institution do not specifically recall ever having seen such proposed amendments.

There are no facts of record in this proceeding from which it could be concluded with any certainty whether any of the provisions of Chapter 23-20, Florida Administrative Code, either as it was initially adopted or as it was amended effective October 1, 1982, were applied to Petitioner's request for participation in that program.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction of the subject matter of, and the parties to, this proceeding. Section 120.56, Florida Statutes.

   
   

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

   
   

   Any person adversely 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 legisla- tive authority. (Emphasis added.)

   
   

3. 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 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 affect 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 1981). Here, the record in this cause is devoid of any showing that Petitioner has in any way been affected by the amendments to Chapter 23-20, Florida Administrative Code, adopted by Respondent in 1982. Accordingly, he lacks standing to maintain this proceeding, and it is

ORDERED:

That this petition be, and the same is hereby dismissed, and the relief sought by Petitioner is DENIED.

DONE AND ENTERED this 24th day of April, 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 24th day of April, 1984.

COPIES FURNISHED:

Gary M. piccirillo Lake City Community

Correctional Center Post Office Box 777

Lake City, Florida 32055

John C. Courtney, Esquire Assistant General Counsel Florida Parole and Probation Commission

1309 Winewood Boulevard

Tallahassee, Florida 32301

Anabel P. Mitchell, Chairman Florida Parole and Probation Commission

1309 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-003284RX

Orders for Case No: 83-003284RX