STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIE TOWNS and JOHN H. SMITH )

)

Petitioner, )

)

vs. ) CASE NO. 84-4298RE

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Consistent with the agreement of the parties hereto, as formalized in an Order of the undersigned dated December 19, 1984, this Final Order is entered based on written submissions of the parties, by Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioners: Willie Towns and John H. Smith pro se

Lawtey Correctional Institution Post Office Box 229

Lawtey, Florida 32058

For the Respondent: Arden Seigendorf, Esquire

Deborah D. Hart, Esquire Assistants Attorney General 1601 The Capitol

Tallahassee, Florida 32301 BACKGROUND INFORMATION

This case arose when, on some date prior to December 6, 1984, Willie Towns and John H. Smith, both then incarcerated at the Lawtey Correctional Institution, (LCI), filed a Petition For A Permanent Injunction To Stop The Freezing Of Earned Gain Time, in reality a petition to determine the invalidity of an emergency rule of the Respondent, Department of Corrections, (DOC). The Petition seeks to have DOC Emergency Rule 33ER84-6, or any similar provision having the same effect, declared invalid.

The final hearing in this case was set for December 19, 1984 by Notice of Hearing by the undersigned on December 13, 1984. However, Respondent filed a Motion to Dismiss the Petition and upon agreement by the parties, a hearing was held by telephone conference call on December 19, 1984, at which it was agreed the parties would submit, in accordance with the schedule set out in the order, such matters as they deemed appropriate to the undersigned. Thereafter, on January 2, 1985, Petitioners submitted their Argument and Memorandum of Law. On January 16, 1985, Respondent filed its Response to Petitioner's Argument and Memorandum of Law, and on January 18, 1985, Petitioners filed their Response to Respondent's Answer. No testimony or oral argument was presented.

FINDINGS OF FACT

1. Petitioners, Willie Towns and John H. Smith, are both incarcerated in the State of Florida at the Lawtey Correctional Institution.

   
   

2. On October 12, 1984, Respondent, DOC, caused to be published in the Florida Administrative Weekly, Vol 10, No 41, a copy of Emergency Rule 33ER84-6, dealing with the freezing of incentive gain time. This emergency rule was shown to have become effective when filed with the Florida Department of State on October 4, 1984. The implementation of this rule as an emergency rule was based on a finding by Respondent that there was an immediate danger to the public health, safety, or welfare requiring it. The DOC's rationale for this finding was that a need existed for Respondent to have a definite release date set to arrange for notification to law enforcement officials from other jurisdictions who had filed detainers against inmates of their impending release sufficiently in advance of that release date so that those agencies could make arrangements for assuming custody without permitting the inmates to be released into society creating a danger to the public.

   
   

3. The rule, in summary, provides that an inmate's release date will be frozen on the 12th day of the month preceding the month of his release and that the inmate will not benefit during the frozen period from any further incentive gain time adjustments to his release date.

   
   

4. Emergency Rule 33ER84-6 is identical in language and effect to Emergency Rule 33ER84-5 which was published in the Florida Administrative Weekly, Vol 10, No 28, on July 13, 1984, which became effective on July 2, 1984, and which expired on September 29, 1984, after 90 days.

   
   

5. On or about December 6, 1984, Petitioners filed the Petition for Permanent Injunction to Stop the Freezing of Earned Gain Time. The Petition has five major thrusts. The first is that since the Respondent showed no need for an emergency rule, the rule implemented in that form is invalid. The second is that both this rule and its identical predecessor violate both State and Federal ex post facto principles. The third is that both the instant rule and its predecessor are being unlawfully enforced at LCI. The fourth is that in the promulgation of a rule such as this, the agency is required to publish an economic impact statement which was not done here. This particular issue was resolved adversely to the Petitioners at the telephone conference motion hearing held on December 18, 1984. The fifth is that the instant rule is an unlawful extension of its identical predecessor and its promulgation is an unlawful attempt to circumvent the provisions of Section 120.54 (9)(e), Florida Statutes (1983).

   
   

6. Rule 33ER84-6, which had an effective date of October 4, 1984, expired on January 2, 1985. Petitioner Towns' tentative release date is March 26, 1986. Petitioner Smith's tentative release date is March 6, 1986. Neither Petitioner would be affected by the emergency rule since their incentive gain time would not be subject to being frozen until sometime in February, 1986.

   
   

   CONCLUSIONS OF LAW

   
   

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

8. A rule challenge is not, under Florida law a proper proceeding for the maintenance of a class action. State of Florida, Department of Health and Rehabilitative Services v. Alice P., et al. 367 So.2d 1045 (Fla 1st DCA 1979). Because neither Towns nor Smith could be adversely affected by the Emergency Rule in question, neither has standing to challenge it in this forum. This does not address the propriety of a challenge to any proposed rule addressing the same subject matter.

It is, therefore, ORDERED:

That the Petition of Willey Towns and John H. Smith to have DOC Emergency Rule 33ER84-6 declared invalid be DISMISSED.

DONE and ORDERED this 19th day of February, 1985, at Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 19th day of February, 1985.

COPIES FURNISHED:

Willie Towns

Lawtey Correctional Institution Post Office Box 229

Lawtey, Florida 32058

John H. Smith

Lawtey Correctional Institution Post Office Box 229

Lawtey, Florida 32058

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

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Capitol, Suite 1802 Tallahassee, Florida 32301

Carroll Webb, Executive Director Joint Administrative Procedures

Committee

1201 Holland Building

Tallahassee, Florida 32301

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

Tallahassee, Florida 32301

Arden Seigendorf, Esquire Deborah D. Hart, Esquire Assistants Attorney General 1601 The Capitol

Tallahassee, Florida 32301

Docket for Case No: 84-004298RX

Orders for Case No: 84-004298RX