STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL McKENNA, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3767RP

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on December 20, 1991.

APPEARANCES

For Petitioner: Jack D. Holt, Number 091400

Qualified Representative

Avon Park Correctional Institution Post Office Box 1100, Slot 1327 Avon Park, Florida 33825-1100

For Respondent: Claire Dryfuss

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

Suite 1603, The Capitol Tallahassee, Florida 32399-1300

STATEMENT OF THE ISSUES

1. Whether the instant proceeding was instituted within the time requirements of Section 120.54(4)(b), Florida Statutes; and

   
   

2. If the first issue had been answered affirmatively, whether a proposed amendment to Rule 33-3.004(12), Florida Administrative Code, constitutes an invalid exercise of delegated authority?

PRELIMINARY STATEMENT

On June 19, 1991, the Petitioner Michael McKenna, filed a Petition for Determination of Validity of Proposed Rule with the Division of Administrative Hearings. The Petition was assigned to the undersigned by Order of Assignment entered July 3, 1991.

The formal hearing was originally set for August 5, 1991, by Notice of Hearing entered July 12, 1991. The formal hearing was continued and rescheduled, upon the request of the parties, twice.

On October 9, 1991, the Respondent filed a Motion to Dismiss for Lack of Jurisdiction. In this Motion the Respondent argued that the case should be dismissed because the Petition was not filed within the time required by Section 120.54(4)(b), Florida Statutes, for filing of challenges to proposed rules or rule amendments. On October 17, 1991, the Petitioner filed a Response to Motion to Dismiss for Lack of Jurisdiction.

On October 21, 1991, an Order to Show Cause was entered. In the Order to Show Cause, the parties were informed that the arguments as to why this case should not be dismissed were not persuasive. It was noted that the Petitioner had represented that the Petition had been placed in the custody of employees of the Respondent on June 11, 1991, three days before the date the Petition was required to be filed with the Division of Administrative Hearings. Based upon this alleged fact, the parties were informed that it might be inappropriate to grant the Respondent's Motion to Dismiss. Therefore, the Respondent was given until November 4, 1991, to show cause: "(1) why the facts alleged by the Petitioner concerning the filing of the petition in this case should not be accepted as true; (2) why any other facts should be considered; and (3) why the motion to dismiss should not be denied."

On November 1, 1991, the Respondent filed a Response to the Order to Show Cause responding to each of the questions. The Respondent questioned whether the facts asserted by the Petitioner were sufficient to justify denial of the Motion to Dismiss, suggested other facts which might be relevant and questioned whether it would be appropriate to apply the doctrine of equitable tolling in this case.

On November 12, 1991, the Petitioner filed a pleading titled "Petitioner's Traverse to the Respondent's Response to the Show Cause Order" and an affidavit in support thereof.

On November 15, 1991, an Order Concerning Motion to Dismiss was entered informing the parties that the undersigned had concluded that it would be highly inequitable and unfair to dismiss this case if the evidence proved that the Petition had not been filed within the time requirements of Section 120.54, Florida Statutes, because of unreasonable actions of the Respondent or its employees. Therefore, the parties were informed that the formal hearing of this case would be scheduled, that they would be given an opportunity to present evidence concerning the circumstances surrounding the filing of the Petition and that, thereafter, a ruling would be rendered on the question of whether this case should be dismissed for lack of jurisdiction.

The parties were also informed that they should be prepared to present evidence concerning the issues raised in the Petition in the event it was determined that the case should not be dismissed. A Fourth Notice of Hearing was entered simultaneously with the Order Concerning Motion to Dismiss scheduling the formal hearing for December 20, 1991.

The formal hearing of this case was conducted by telephone. The undersigned, the court reporter, counsel for the Department of Corrections, and Ann Cole, a witness, were located in a hearing room of the Division of Administrative Hearings in Tallahassee, Florida. The Petitioner, his qualified representative and the other witnesses who testified during the hearing were located at Avon Park Correctional Institution in Avon Park, Florida. The hearing was conducted by a telephone connection between the two locations and the use of speaker telephones.

During the formal hearing the Petitioner testified on his own behalf. Petitioner offered no exhibits. The Respondent presented the testimony of Bobbie Holliway, the Petitioner and Ann Cole. The Respondent offered two exhibits which were accepted into evidence.

After taking evidence on the jurisdictional issue, the parties were informed that the Respondent's Motion to Dismiss would be granted. It was determined that the evidence failed to prove that the Petition filed in this case had been filed within the time requirements of Section 120.54(4)(b), Florida Statutes. Accordingly, no evidence on the merits of the Petition was presented.

Subsequent to the conclusion of the formal hearing the Petitioner filed a pleading titled "Supplemental Authority" pursuant to which he argued that the recent decision of Haag v. State, 17 F.L.W. S3 (Fla. 1992), should be considered. That case is discussed, infra. A second pleading titled "Supplemental Authority" was filed by the Petitioner citing Castillo v.

Department of Administration, 17 F.L.W. D373 (Fla. 1st DCA 1992).

Although informed of their right to do so, neither of the parties filed a proposed final order.

FINDINGS OF FACT

1. Notice of a proposed amendment to Rule 33-3.004(12), Florida Administrative Code (hereinafter referred to as the "Proposed Rule"), was published by the Respondent, the Department of Corrections, in the Florida Administrative Weekly, Volume 17, Number 21, page 2318, on May 24, 1991.

   
   

2. Pursuant to Section 120.54(4)(b), Florida Statutes, challenges to proposed rule amendments "must be filed with the division within 21 days after the date of publication of the notice. "

   
   

3. Pursuant to Section 120.54(4)(b), Florida Statutes, challenges to the Proposed Rule were required to be filed with the Division of Administrative Hearings on or before June 14, 1991.

   
   

4. Notice of the existence of the Proposed Rule was placed on a library bulletin board at Avon Park Correctional Institution. The Petitioner learned of the Proposed Rule in early June, 1991. The evidence failed to prove that the exact date notice was placed on the bulletin board.

   
   

5. On June 11, 1991, the Petitioner signed a Petition for Determination of Validity of Proposed Rule (hereinafter referred to as the "Petition"), challenging the Proposed Rule.

   
   

6. The Petition was placed in a dorm mail box by the Petitioner at approximately 5:30 p.m., Tuesday, June 11, 1991. The Petition was in a sealed envelope, was marked "legal mail" and had stamps on it.

   
   

7. The usual procedure for processing mail at Avon Park Correctional Institution which would have applied to the mailing of the Petition was generally as follows:

   1. The mail placed in the dorm mail box, including the Petition, would have been picked up for processing the day it was placed there; b The mail would have been taken to the control room and processed (sorted and stamps added, if necessary);

      c. Mail placed in the mail box in which the Petition was placed and at the time it was placed there by the Petitioner would have been taken to the local United States Post Office on Wednesday, June 12, 1991.

      
      

8. No log of outgoing legal mail was kept in June, 1991.

   
   

9. In light of the procedure normally followed by Avon Park Correctional Institution, the Petitioner only allowed two days for the Petition to travel to the United States Postal service in Avon Park, Florida, and, from there, to the Division of Administrative Hearing in Tallahassee, Florida: one day from Wednesday, June 12, 1991, the date the Petition was delivered to the United States Post Office, to Thursday, June 13, 1991, and one day from Thursday, June 13, 1991, to Friday, June 14, 1991.

   
   

10. The Petition was not placed in the dorm mail box until eighteen days after notice of the Proposed Rule was published.

    
    

11. Mail received by the Division of Administrative Hearings is generally handled in the following manner:

    
    

    1. All mail is opened the day it is delivered;

    2. Once opened, the envelope is disposed of and the contents are stamped with the time

       and date delivered. This date constitutes the date of "filing" of pleadings;

    3. The contents of the mail are then processed.

       
       

12. The Petition in this case was not filed until June 19, 1991, eight days after it was placed in the custody of the Respondent.

    
    

13. The evidence failed to prove that the time the Petitioner allowed for the mailing of the Petition was reasonable: placing the Petition in the dorm mail box at 5:30 p.m., when the Petitioner should have known that the mail could not reasonably be taken to the United States Post Office until the next day, June 12, 1991, only allowed two days for the Petition to be delivered by the postal service.

    
    

14. The evidence failed to prove that the Respondent was responsible for the late filing of the Petition in this case.

    
    

15. The Petitioner failed to file the Petition within twenty-one days after the publication of notice of the Proposed Rule.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

16. As explained further in this Final Order, the Division of Administrative Hearings does not have jurisdiction of the parties to and the subject matter of this proceeding. Section 120.54, Florida Statutes (1989).

    
    

    1. Failure to File Petition Within Twenty-one Days of Notice.

    
    

17. The Petitioner instituted this proceeding pursuant to Section 120.54, Florida Statutes, challenging a proposed amendment to a rule of the Respondent. Section 120.54(4)(b), Florida Statutes, provides, in pertinent part, the following:

    
    

    (b) The request seeking a determination under this subsection shall be in writing and must be filed with the division within 21 days after the date of publication of the notice. .

    . . [Emphasis added].

    
    

    There is no dispute in this case that the Petition was not filed with the Division of Administrative Hearings in compliance with this requirement.

    
    

18. Failure to comply with time requirement of Section 120.54(4)(b), Florida Statutes, has been held to be jurisdictional; if the requirement is not complied with the Division of Administrative Hearings has no jurisdiction over the matter:

    
    

    F.S. 120.54(4)(b) requires that one seeking an administrative determination of the invalidity of a proposed rule must file his petitition of [sic] request with the Division within

    [twenty-one] days after the date of publication of the notice required by subsection (1) of the statute. That [twenty-one] day period is jurisdictional.

    Failure to file a valid petition or request within that [twenty-one] day period is grounds for dismissal upon proper motion directed to jurisdiction. . . .

    
    

    Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052-1053 (Fla. 1st DCA 1979).

    
    

19. The Respondent filed a proper motion directed to jurisdiction. The facts proved that the Petition was not filed in conformance with Section 120.54(4)(b), Florida Statutes. In an abundance of caution and in light of the control which the Respondent exercises over the Petitioner, the undersigned required the parties to present evidence concerning the manner in which the Petition was processed and mailed. Based upon that evidence, the undersigned considered whether, pursuant to the doctrine of equitable tolling, or for any other reason, the Petitioner's late filing of the Petition should be excused. The evidence failed to support the application of the doctrine of equitable tolling or to otherwise excuse the Petitioner's late filing. See Machules v. Department of Administration, 523 So. 2d 1132 (Fla. 1988). But see, New Washington Heights Community Development Conference v. Department of Community

    Affairs, 515 So. 2d 328 (Fla. 3d DCA 1987). Based upon the evidence presented by the parties, the late filing of the Petition in this case was the responsibility of the Petitioner and the Petitioner alone. He failed to meet that responsibility by waiting too late to place his Petition in the mail to expect his Petition to be timely delivered to the Division of Administrative Hearings.

    
    

20. The Petitioner's argument concerning the fact that he does not have access to the Florida Administrative Weekly is not persuasive. The evidence proved that the Petitioner had actual notice of the Proposed Rule due to notice posted on the library bulletin board. The Petitioner was, therefore, provided with more notice than many citizens of the State of Florida, who also generally do not have immediate access to the Florida Administrative Weekly, get.

    
    

21. Of greatest concern in rendering this decision is the recent decision of the Supreme Court of Florida in Haag v. State, 17 F.L.W. S3 (Fla. 1992). In Haag, the court adopted the "mailbox rule" established by the Supreme Court of the United States in Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed 2d 245 (1988), a case cited by the Petitioner. Essentially, the "mailbox rule" provides that the date that an inmate places a pleading in the hands of prison officials constitutes the date a pleading was filed. This doctrine had not been applied in Florida prior to the Haag decision.

    
    

22. The mailbox rule, as applied in Haag, will not be applied in this case because the circumstances surrounding this matter are distinguishable from the circumstances in Haag. First, the Haag case involved a writ of habeas corpus and a Rule 3.850, Florida Rules of Criminal Procedure, proceeding. The Court noted this fact and recognized that if the Haag case were dismissed, the right to a Rule 3.850 proceeding would be lost. In light of the fundamental constitutional rights at stake in Haag and the other cases specifically overturned in Haag, the Court was reluctant to strictly apply the applicable time requirements for filing in that case. That is not the case in this matter. Constitutional rights are not at issue. Nor will the Petitioner lose any substantial rights as a result of the dismissal of this case. The Petitioner will not be barred by the dismissal of this case from challenging the rule at issue in this proceeding. The Petitioner may still file a challenge pursuant to Section 120.56, Florida Statutes.

    
    

23. Secondly, there was a mail log maintained in the Haag case which established without doubt when the petition in that case was filed. No log was maintained in this case. The evidence supporting a determination that the Petition was placed in the hands of the Respondent in a timely manner consisted of the Petitioner's testimony and a date the Petitioner placed on the Petition.

    
    

24. Finally, the Court in Haag did not overturn its decision in Alice P. Therefore, although the Court has expressly provided that the mailbox rule applies in habeas corpus proceedings and on appeals from lower court proceedings, it has not been specifically provided that the doctrine should be applied in a proceeding pursuant to Section 120. 54, Florida Statutes.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petitioner's Petition for Determination of Validity of

Proposed Rule is DISMISSED.

DONE and ENTERED this 2nd day of March, 1992, 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 2nd day of March, 1992.

COPIES FURNISHED TO:

Michael McKenna #576353

Avon Park Correctional Institution Post Office Box 1100, Slot 1327 Avon Park, Florida 33825-1100

Jack D. Holt #091400

Avon Park Correctional Institution Post Office Box 1100, Slot 1327 Avon Park, Florida 33825-1100

Donna Malphurs Suite 439

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Claire Dryfuss

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

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

Liz Cloud, Chief

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

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

Louis A. Vargas General Counsel

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

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: 91-003767RP

Orders for Case No: 91-003767RP