STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DARRYL JAMES McGLAMRY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5186RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

On August 19, 1991, the Petitioner, Darryl James McGlamry, filed a Petition for Determination of Validity of Rule. The Petitioner challenged Rule 33-5.006, Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), pursuant to Section 120.56(1), Florida Statutes.

By Order of Assignment dated August 20, 1991, this case was assigned to the undersigned. The formal hearing was scheduled for September 3, 1991, by Notice of Hearing entered August 20, 1991. The hearing was subsequently rescheduled for September 16, 1991, by a Second Notice of Hearing entered August 29, 1991.

On August 27, 1991, a Motion for Abeyance was filed by the Respondent. The abeyance was requested because of two other rule challenges involving the Challenged Rule pending before the undersigned. A final order had been issued in one of those cases but the final order in the other case, Division of Administrative Hearings' case number 90-4048R, was still pending. The Petitioner filed no response in opposition to the requested abeyance. On September 9, 1991, the case was placed in abeyance pending the issuance of a final order in case number 90-4048R.

On September 24, 1991, an Order of Dismissal With Leave to Amend was entered in this case. Pursuant to the Order of Dismissal, the parties were informed that the final order in case number 90-4048R had been issued. A copy of that final order was provided to the parties. The parties were also informed that it had been determined that the Petition filed in this case failed to sufficiently allege the basis for the Petitioner's challenge or sufficient facts to show that the Challenged Rule is an invalid exercise of delegated legislative authority. Therefore, the Petitioner was informed that this case would be dismissed, sua sponte, and that he could file an amended petition on or before October 14, 1991.

No amended petition was filed by the Petitioner on or before October 14, 1991. Therefore, on October 16, 1991, an Order Concerning Final Order was entered giving the parties until October 28, 1991, to file proposed final orders and informing the parties that a Final Order would be entered on or before November 18, 1991.

On October 15, 1991, the Petitioner filed an Amended Petition. The Amended Petition did not reach the undersigned before the Order Concerning Final Order

was entered. On October 25, 1991, the Petitioner filed a Motion to Reinstate Petition in which he requested that his Amended Petition be considered. The Respondent filed a response to the Motion of October 29, 1991, indicating that the Respondent had no objection to the Petitioner's request. The Respondent also requested that a Motion to Dismiss Amended Petition which had been filed by the Respondent on October 17, 1991, be granted.

On November 1, 1991, an Order Granting Motion to Reinstate Petition and Granting Motion to Dismiss Amended Petition was entered. Pursuant to the November 1, 1991, Order the Amended Petition was accepted and reviewed. Based upon that review and consideration of the Respondent's Motion to Dismiss, the parties were informed that the Amended Petition would be dismissed. The parties were given until November 15, 1991, to file proposed final orders and were informed that this Final Order would be entered on or before December 9, 1991.

On November 14, 1991, the Petitioner filed a Motion for Leave to File Second Amended Petition. The Respondent filed a response in opposition to this motion. The Petitioner has been given amply opportunity to file an adequate petition in this case. There is no reason to believe that the Petitioner can now cure the defects of his Petition or the Amended Petition. Therefore, the Motion for Leave to File Second Amended Petition is hereby denied.

The Respondent filed Respondent's Proposed Final Order containing proposed findings of fact prior to the deadline for filing proposed final orders. A ruling on each proposed finding of fact has been made either directly or indirectly in this Final Order. See the attached Appendix. The Petitioner did not file a proposed final order. Nor did the Petitioner request any extension of time within which to file one.

FINDINGS OF FACT

1. The Petitioner, Darryl James McGlamry, is an inmate under the supervision of the Respondent. The Petitioner is incarcerated at Dade Correctional Institution.

   
   

2. The Respondent is the Department of Corrections, an agency of the State of Florida.

   
   

3. The Petitioner has challenged Rule 33-5.006(8), Florida Administrative Code.

   
   

4. The Challenged Rule governs the visitation privileges of unmarried inmates.

   
   

5. The Petitioner has alleged that the Challenged Rule "impairs the Petitioner's substantial interest in that it restricts the Petitioner's First Amendment Right of Freedom of Association, as it substantially limits the number of female visitors that the Petitioner may have."

   
   

6. The Petitioner has also alleged that the Challenged Rule is invalid because the restriction on visitation of the Challenged Rule is:

   
   

   . . . contrary to the Civil Rights Act of Florida, Chapter 760.01, Florida Statutes.

   11. As such, it is an "invalid exercise of delegated legislative authority". The Respondent does not have the authority to pass

   rules that are contrary to other statutes. This amounts to vesting unbridled discretion to the agency in violation of Section 120.52(8)(d), Florida Statutes.

   
   

7. The Amended Petition is devoid of any alleged facts which, if proven, would support a determination that the Challenged Rule is invalid under Section 120.56, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. In the Amended Petition, the Petitioner has first contended that the Challenged Rule violates the Constitution of the United States. A Hearing Office has no jurisdiction over constitutional challenges brought pursuant to Section 120.56, Florida Statutes. Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Fund, 427 So.2d 153 (Fla. 1982); Long

   v. Department of Administration, 428 So.2d 688 (Fla. 1st DCA 1983); and Cook v. Parole and Probation Commission, 415 So.2d 845 (Fla. 1st DCA 1982).

   
   

10. The only appropriate challenge to an existing rule which may be brought before the Division of Administrative Hearings is a challenge pursuant to Section 120.56, Florida Statutes. The only relief which may be sought pursuant to Section 120.56, Florida Statutes, is a determination of the invalidity of the rule on the ground that the rule is an "invalid exercise of delegated authority."

    
    

11. What constitutes an "invalid exercise of delegated authority" is defined in Section 120.52(8), Florida Statutes, as follows:

    
    

    1. "Invalid exercise of delegated 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 materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

       2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

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

       4. The rule is vague, fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency; or

       5. The rule is arbitrary or capricious.

          
          

12. In order to challenge an existing rule, the person bringing the challenge must state with particularity which portion(s) of the above definition the challenged rule violates and the facts supporting such an allegation.

13. In this case, in addition to the constitutional basis for his challenge, the Petitioner has alleged that the Challenged Rule constitutes an "invalid exercise of delegated authority" pursuant to Section 120.52(8)(d), Florida Statutes. In particular, the Petitioner has alleged that the Challenged Rule vest unbridled discretion in the Respondent because it violates "Chapter 760.01, Florida Statutes."

    
    

14. Chapter 760, Florida Statutes, is intended to prevent discrimination in Florida based on race, color, religion, sex, national origin, age, handicap, or marital status. Chapter 760, Florida Statutes, creates certain procedures and safeguards intended to prevent discrimination in the employment of individuals in this State. The Respondent is not an "employer" subject to Chapter 760, Florida Statutes. Nor do the Petitioner and Respondent have an employment relationship or any other relationship subject to the requirements of Chapter 760, Florida Statutes. Nothing in Chapter 760, Florida Statutes, pertains to, or governs, visitation of persons incarcerated in correctional institutions of this State. Therefore, Chapter 760, Florida Statutes, does not create any prohibition applicable to the Respondent concerning visitation rights of inmates. Chapter 760, Florida Statutes, consequently, cannot form the basis of a determination that the Challenged Rule is invalid pursuant to Section 120.56, Florida Statutes.

    
    

15. Additionally, even if Chapter 760, Florida Statutes, created some prohibition against the restrictions of the Challenged Rule, such a prohibition would not support a conclusion that the Challenged Rule vest "unbridled discretion" in the Respondent in violation of Section 120.52(8)(d), Florida Statutes, as alleged by the Petitioner.

    
    

16. The Amended Petitioner is devoid of any alleged facts which, if proven, would support a determination that the Challenged Rule is invalid under Section 120.56, Florida Statutes.

ORDER

Based upon the foregoing, it is

ORDERED that the Petition for Determination of Validity of Rule and the Amended Petition filed in this case are DISMISSED.

DONE and ORDERED this 5th day of December, 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 5th day of December, 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.

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

of Fact Number of Acceptance or Reason for Rejection

1 1 and conclusions of law.

2-3 6 and conclusions of law.

4 7 and conclusions of law.

COPIES FURNISHED:

Darryl James McGlamry #914860

Dade Correctional Institution #222 19000 S.W. 377th Street

Florida City, Florida 33034

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

Harry K. Singletary, Jr. Secretary

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 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: 91-005186RX

Orders for Case No: 91-005186RX