STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DARRYL JAMES McGLAMRY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2804RE

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

On May 8, 1991, the Petitioner, Darryl James McGlamry, filed a Petition for Determination of Validity of Emergency Rule. By Order of Assignment this case was assigned to Larry J. Sartin, a Hearing Officer of the Division of Administrative Hearings. The formal hearing was scheduled for May 30, 1991.

Pursuant to the Petition filed by the Petitioner, the Petitioner challenged Emergency Rule 33ER91-2, Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), pursuant to Section 120.56(4), Florida Statutes. The Petitioner alleged that the Challenged Rule was an exact duplicate of Rule 33ER91-1, Florida Administrative Code, and that the Challenged Rule had been adopted after Rule 33ER91-1, Florida Administrative Code, had expired. The Petitioner argued, therefore, that the Respondent had violated Section 120.54(9)(c), Florida Statutes.

On May 28, 1991, the Respondent filed a Motion to Dismiss. In this Motion the Respondent represented that the Challenged Rule would be repealed and that the parties had agreed that such a repeal would resolve the issue raised in this case. Therefore, the Respondent requested that the case be dismissed as moot.

On May 29, 1991, an Order of Continuance was entered after the Respondent represented that the case should not be dismissed until after the repeal of the Challenged Rule had been finalized with the Petitioner. The formal hearing was continued and the Respondent was ordered to report the status of the case on or before July 8, 1991.

On July 3, 1991, the Respondent filed a Response to Order of Continuance.

In this Response the Respondent indicated that amendments to Chapter 33-6, Florida Administrative Code, had been filed on July 1, 1991. The Respondent also represented that the amendments would supersede the Challenged Rule.

On July 15, 1991, the Petitioner filed a Motion to Reschedule Hearing. In this Motion the Petitioner pointed out that the Challenged Rule was still in force and that the Respondent's actions had done nothing to eliminate the effect of the Challenged Rule. Therefore, the Petitioner requested that a formal hearing of this case be scheduled.

On August 1, 1991, an Order to Show Cause, Denying Motion to Reschedule Hearing and Denying Motion to Dismiss was entered. In this Order the Motion to

Dismiss was denied because the Respondent had failed to repeal the Challenged Rule. The Motion to Reschedule Hearing was denied because there did not appear to be any dispute over the pertinent facts in this case. Therefore, it was indicated that the case would be disposed of without a formal hearing by allowing the parties an opportunity to file proposed final orders setting out the relevant undisputed facts and arguing the relevant law. The parties were given until August 16, 1991, to show cause why a formal hearing should be held.

After the issuance of the Order to Show Cause, its was discovered that the Petitioner had been moved to a different institution. Therefore, a Second Order to Show Cause was entered giving the parties until August 26, 1991, to show cause why a formal hearing should be held in this case.

On August 15, 1991, the Petitioner filed a Response to Order to Show Cause.

The Petitioner argued that a formal hearing was necessary but gave not reasonable reason why. On August 22, 1991, the Respondent filed a Response to Order to Show Cause and Proposed Final Order. The Respondent did not object to disposing of this matter without a formal hearing. The Respondent also included proposed findings of fact in the Proposed Final Order which the Petitioner has not objected to.

On August 30, 1991, an Order Concerning Final Order was issued. In this Order the parties were informed that a Final Order would be issued in this case on or before October 1, 1991, without conducting a formal hearing. The parties were also informed that they could file proposed final orders on or before September 9, 1991. The Petitioner was informed that additional time would be given to him if he filed a request in writing. On September 18, 1991, nine days after the deadline for filing proposed final orders, the Petitioner filed a Response to Order to Show Cause and Proposed Final Order. The Petitioner's proposed final order has not been considered.

FINDINGS OF FACT

1. Standing.

   
   

   1. The Petitioner, Darryl McGlamry, is an inmate in the custody of the Respondent, the Department of Corrections.

      
      

   2. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding.

      
      

2. The Respondent.

   
   

   1. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida.

      
      

3. The Challenged Rule, Rule 33ER91-2, Florida Administrative Code.

1. On January 23, 1991, the Respondent filed Rule 33ER91-1. This emergency rule was filed by the Respondent to alleviate problems created by a high increase in the number of close custody inmates caused by changes in the Respondent's rules during 1990.

   
   

2. Pursuant to Section 120.54(9)(c), Florida Statutes, Rule 33ER91-1 was only effective for ninety (90) days. Therefore, Rule 33ER91-1 was due to expire on or about April 24, 1991.

3. On April 23, 1991, the Respondent filed the Challenged Rule. The Challenged Rule is identical in its terms to Rule 33ER91-1.

   
   

4. The Challenged Rule should have expired on July 22, 1991.

   
   

5. The instant challenge was instituted on May 8, 1991, before the Challenged Rule expired.

   
   

6. The amendments to Chapter 33-6, Florida Administrative Code, filed by the Respondent on July 1, 1991, do not repeal the effect of the Challenged Rule prior to July 1, 1991.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

7. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56, Florida Statutes (1991).

   
   

   1. Standing.

      
      

8. The Petitioner has standing to institute the instant action. He is incarcerated by the Respondent and subject to the rules of the Respondent, including the rule at issue in this proceeding. See Department of Corrections

   v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984).

   
   

   1. Burden of Proof.

   
   

9. The burden of proof in this proceeding was on the Petitioner. Florida League of Cities, Inc. v. Department of Insurance and Treasurer, 540 So.2d 850 (Fla. 1st DCA 1989); Department of Administration, Division of Retirement v. Albanese, 455 So.2d 639 (Fla. 1st DCA 1984); and Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2d DCA 1979).

   
   

   F. The Validity of Rule 33ER91-2, Florida Administrative Code.

   
   

10. The Petitioner has alleged that the Challenged Rule is invalid because it violates Section 120.54(9)(c), Florida Statutes. Section 120.54(9)(c), Florida Statutes, provides:

    
    

    (c) An emergency rule adopted under this subsection may not be effective for a period longer than 90 days and shall not be renewable, except during the pendency of a challenge to proposed rules addressing the subject of the emergency rule. However, the agency may take identical action by normal rulemaking procedures.

    
    

11. The undisputed facts in this case proved that the Respondent, in promulgating the Challenged Rule, has attempted to renew Rule 33ER91-1 upon the expiration of the ninety day period for which Rule 33ER91-1 was in effect. The Respondent's action is contrary to the unambiguous language of Section 120.54(9)(c), Florida Statutes.

12. The Respondent has argued in it's proposed final order that the Challenged Rule is not invalid because the emergency which gave rise to the necessity for adopting it was a different emergency than the emergency that gave rise to Rule 33ER91-1. Therefore, the Respondent has argued that the adoption of the Challenged Rule was not a "renewal" of Rule 33ER91-1. This argument is rejected. The language of Section 120.54(9)(c), Florida Statutes, and other provisions authorizing the adoption of emergency rules, allows agencies to cope with emergencies for a limited period of time and requires that they resolve those emergencies through the normal rulemaking process during that limited period of time.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Rule 33ER91-2, Florida Administrative Code, is an invalid

exercise of delegated authority in violation of Section 120.56, Florida Statutes.

DONE and ENTERED this 1st day of October, 1991, in Tallahassee, Florida.

LARRY J. SARTIN

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 1st day of October, 1991.

APPENDIX TO FINAL ORDER

The Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any.

Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's proposed final order was filed after the deadline for filing proposed final orders and has not been considered.

The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1 Hereby accepted.

2 4.

1. Hereby accepted.

2. See 5-7 and hereby accepted.

3. See 8.

4. Hereby accepted.

COPIES FURNISHED:

Darryl James McGlamry #914860

South Florida Reception Center Post Office Box 02-8538

Miami, Florida 33102

Louis A. Vargas General Counsel Perri M. King

Assistant General Counsel Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Donna Malphurs Suite 439

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Richard Doran

Assistant Deputy Attorney General Division of General Legal Services Department of Legal Affairs

The Capitol

Tallahassee, Florida 32399-1050

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

Harry K. Singletary, Jr. Secretary

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

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: 91-002804RE

Orders for Case No: 91-002804RE