STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEITH RICHARD HARRIS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3036RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

On June 5, 1989, Petitioner, Keith Richard Harris, filed a Petition to Challenge the Validity of an Existing Rule. That petition sought to challenge a portion of Rule 33-22.010, Florida Administrative Code. Petitioner alleged that a disciplinary report was issued against him in violation of the rule and that the rule, which gives an option of writing a disciplinary report either on the date of the infraction or when the institution learns of the infraction, violates the due process clause of the fourteenth amendment.

The Department of Corrections (Department) timely filed a Motion to Dismiss which was granted on July 31, 1989. Petitioner was granted leave until August 18, 1989, to file an amended petition. On August 18, 1989, Petitioner filed an amended petition to which the Department responded with a second motion to dismiss.

The hearing which had been scheduled for December 11, 1989, was cancelled by order entered November 3, 1989, and Petitioner was granted leave until November 20, 1989, to respond to the second motion to dismiss.

Section 120.56(2), Florida Statutes, requires that a Petitioner "state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the invalidity of the rule." Petitioner's first allegation is that the Department did not comply with its own rule in issuing a disciplinary report against him. Such allegations, if true, would not establish the invalidity of the rule. Further, assuming arguendo that the facts alleged are true, this forum does not have jurisdiction to compel the Department to comply with its rules.

Petitioner's second allegation is that a rule which gives the Department the option of filing a disciplinary report either on the date of the infraction or the date the institution learns of the infraction is overbroad and invalid by giving the Department unbridled discretion. This claim, reiterated from the original petition, alleges a deprivation of due process. Such claims are not appropriate in a Section 120.56, Florida Statutes, rule challenge. The Division of Administrative Hearings does not have jurisdiction to dispose of constitutional issues in a Section 120.56, Florida Statutes, proceeding. Cook

v. Florida Parole and Probation Commission, 415 So.2d 845 (Fla. 1st DCA 1982).

To challenge the invalidity of the rule Petitioner must allege facts outlining that invalidity. Those facts must set forth more than the conclusory language of the statute. Section 120.52(8), Florida Statutes, provides, in part:

(8) "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

* * *

1. The agency has exceeded its grant

   of rulemaking authority, citation to which is required by s. 120.54(7);

2. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

3. The rule is vague, fails to establish adequate standards for agency

   decisions, or vests unbridled discretion in the agency; or

4. The rule is arbitrary or capricious.

In this case, Petitioner has lost gain time based upon an alleged improper application of the rule. The Petitioner has not alleged that the rule is not reasonably related to the purposes of the enabling legislation nor has he set forth facts which, if true, would establish the Department has unbridled discretion. Consequently, the amended petition does not comply with Section 120.56, Florida Statutes.

ORDER

Based on the foregoing, it is ordered that the Amended Petition in the above-styled matter, Case No. 89-3036RX, is hereby DISMISSED.

DONE AND ENTERED this 29th day of January, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1990.

COPIES FURNISHED:

Ann Cocheu

Assistant Attorney General Administrative Law Section Suite 1602--The Capitol Tallahassee, Florida 32399-1050

Keith Richard Harris #635563 M.N. 374

DeSoto Correctional Inst. Post Office Drawer 1072 Arcadia, Florida 33821

Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Louis A. Vargas General Counsel

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Liz Cloud, Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

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: 89-003036RX

Orders for Case No: 89-003036RX