STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY M. PICCIRILLO, JESSE J. ) WOLBERT, and ALLEN L. PENOYER, )

)

Petitioners, )

)

vs. ) CASE NO. 84-2221RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case, on July 25, 1984, at Clermont, Florida.

APPEARANCES

For Petitioners: Gary M. Piccirillo, Jesse J. Wolbert and

Allen L. Penoyer, Pro Se

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711

For Respondent: Lisa Santucci, Esquire

Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

By Petition to Determine the Invalidity of an Existing Rule and Policy Rules dated June 21, 1984, Gary M. Piccirillo, Jesse J. Wolbert, and Allen L. Penoyer, Petitioners, challenge the validity of Rule 33-1.07, Florida Administrative Code, Policy and Procedure Directive (PPD) No. 1.01.05, and Lake Correctional Institution Operating Procedure (LCIOP) No. 83-1. As grounds therefor it is alleged Rule 33-1.07 is arbitrary and without a rational basis in fact, and PPD No. 1.01.05 and LCIOP No. 83-1 are rules which were not adopted in compliance with Chapter 120, Florida Statutes.

At the commencement of the hearing Respondent stipulated that neither PPD No. 1.01.05 nor LCIOP No. 83-1 was promulgated in compliance with Chapter 120, Florida Statutes, and Petitioners voluntarily dismissed their challenges to Rule 33-1.07, Florida Administrative Code, and PPD No. 1.01.05 leaving only LCIOP No. 83-1 still being challenged. Thereafter, no evidence was submitted by either party. Proposed findings submitted by Respondent to the extent they are included herein are adopted; otherwise they are rejected as not supported by the evidence, immaterial, or unnecessary to the results reached.

CONCLUSIONS OF LAW

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

   
   

2. Here, the burden is on Petitioners to establish, by a preponderance of the evidence, that LCIOP No. 83-1 is a rule as alleged. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Absent any evidence regarding the contents of LCIOP No. 83-1, it cannot be held to be a rule. It is

ORDERED the Petition of Gary M. Piccirillo, Jesse J. Wolbert, and Allen L. Penoyer be dismissed with prejudice.

DONE AND ORDERED this 28th day of August, 1984, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 28th day of August, 1984.

COPIES FURNISHED:

Gary M. Piccirillo

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711

Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Jesse J. Wolbert

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Capitol, Suite 1802 Tallahassee, Florida 32301

Allen L. Penoyer

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711

Carroll Webb, Executive Director Joint Administrative

Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Lisa Santucci, Esquire Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

Louis A. Vargas, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 84-002221RX

Orders for Case No: 84-002221RX