STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERVIN JAMES HORTON, )

)

Petitioner, )

)

vs. ) CASE No. 88-5485RX

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Petitioner Ervin James Horton, a prison inmate, has filed a petition pursuant to Section 120.56, Florida Statutes, challenging the validity of Rule 33-3.004(7), Florida Administrative Code. He has also filed a motion to supplement authority, which is hereby granted. The Department of Corrections has moved to dismiss the petition, and the petitioner has filed a response to the Motion to Dismiss.

The challenged rule provides that "no inmate may establish or conduct a business through the mail during his period of incarceration." In conclusory form, the petition alleges that this rule is unconstitutional and violates certain Florida and federal statutes regarding various educational programs. The petition itself contains no allegations as to how petitioner is substantially affected by the challenged rule. However, it appears from the attachments to the petition that the challenged rule was cited by prison officials in connection with petitioner's attempt to negotiate some form of student loan.

A petition seeking an administrative determination of the validity of an existing rule must state with particularity facts sufficient to show that the petitioner is substantially affected by the rule and facts sufficient to show the invalidity of the rule. Section 120.56(2), Florida Statutes. The instant petition is woefully lacking with regard to both requirements. As to the conclusory allegations regarding the constitutionality of the challenged rule, the Division of Administrative Hearings is not the proper forum for resolving challenges to the constitutionality of existing rules. Petitioner has alleged no other facts sufficient to demonstrate the invalidity of the rule. At best, petitioner seems to contest the application of the challenged rule to his particular circumstances. As petitioner is well-aware from previous rule- challenge proceedings filed in this forum, a rule challenge petition may not be used as a vehicle for relitigating his inmate grievances. See Horton v.

Department of Corrections, 9 FALR 2270 (April 24, 1987); Horton v. Department of Corrections, DOAH Case No. 872587R (Final Order of Dismissal issued June 17, 1987) Horton v. Deparment of Corrections, DOAH Case No. 87-3879R (Final Order issued October 6, 1987); and Horton v. Department of Corrections, 10 FALR 5254 (November 4, 1987). From the attachments to the petition, it appears that the petitioner has pursued the remedy provided by Rule 33-3.007, Florida Administrative Code -- the inmate grievance procedure. The outcome of that procedure may not be ;(343 2 "appealed" to the Division of Administrative

Hearings in the form of a rule-challenge proceeding brought pursuant to Section 120.56, Florida statutes.

The petitioner having failed to properly allege any cognizable grounds or facts supporting the invalidity of Rule 33-3.004(7), Florida Administrative Code, or, indeed, any facts demonstrating that he is substantially affected by that rule,

IT IS ORDERED THAT the petition filed pursuant to Section 120.56, Florida Statutes, is hereby DISMISSED.

ORDERED and ENTERED this 23rd day of November, 1988, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1988.

COPIES FURNISHED:

Ervin James Horton, #037253 Post Office Box 747

Starke, FL 32091-0747

Ann Cocheu, Esquire Assistant Attorney General Department of Legal Affairs Suite 1063, The Capitol Tallahassee, FL 32399-1050

Louis Vargas, General Counsel Department of Corrections 1311 Winewood Blvd.

Tallahassee, FL 32399-2500

Mitchell D. Franks, Director General Legal Services Department of Legal Affairs Office of Attorney General The Capitol

Tallahassee, FL 32399-1050

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, FL 32399-0250

Carroll Webb, Executive Director Administrative Procedures - Committee

120 Holland Building Tallahassee, FL 32399-1300

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED, TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 88-005485RX

Orders for Case No: 88-005485RX