STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD EUGENE HALPIN, ) RICHARD EDWARD JACKSON and ) JEFFERY LYNN FOWLER, )

)

Petitioners, )

)

vs. ) CASE NO. 91-5328RX

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

On August 22, 1991, Donald Eugene Halpin, Richard Edward Jackson and Jeffery Lynn Fowler, filed a Petition for Administrative Review (hereinafter referred to as the "Petition"). In the Petition, the Petitioners attempted to challenge Rule 33-3.004(9), Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), pursuant to Section 120.56(1), Florida Statutes.

By Order of Assignment dated August 28, 1991, this case was assigned to the undersigned. A formal hearing was scheduled for October 3, 1991, by Notice of Hearing entered August 30, 1991. A pleading titled "Waiver of Thirty Day Hearing Requirement" was filed by Mr. Halpin on September 5, 1991. On September 9, 1991, an Order of Continuance was entered indicating that the "Waiver" had been treated as a motion for continuance. Based upon the Waiver and a representation from counsel for the Respondent, the Department of Corrections, that there was no objection to a continuance of the formal hearing of this case, the formal hearing was continued.

The hearing was subsequently rescheduled for December 17, 1991, by a Second Notice of Hearing entered September 24, 1991.

On October 10, 1991, the Respondent filed Respondent's Motion to Dismiss. In this Motion the Respondent argued that this case should be dismissed because the Petitioners had failed to allege sufficient facts to show that the Challenged Rule is an "invalid exercise of delegated legislative authority." The Respondent also argued that the Petitioners had merely challenged the Challenged Rule as arbitrary or capricious "in its application." Finally, the Respondent argued that Mr. Jackson should be dismissed because he had failed to sign the Petition. Mr. Halpin filed a pleading titled "Petitioner's Response to Respondent's Motion to Dismiss." No response was filed by Mr. Jackson or Mr.

Fowler.

On November 1, 1991, an Order Granting Motion to Dismiss with Leave to Amend was entered. Pursuant to the Order of Dismissal the parties were informed that it had been determined that the Petition failed to allege sufficient facts to show that the Challenged Rule is an "invalid exercise of delegated legislative authority". The Petitioners were also informed that they had admitted in the Petition that there was a reasonable basis for the Challenged

Rule, thus negating their allegation that the Challenged Rule is "arbitrary or capricious." Finally, the Petitioners were incorrectly informed that Mr. Fowler was being dismissed because he had failed to sign the Petition. It was actually Mr. Jackson who had failed to sign the Petition. Based upon the foregoing, the Petitioners were informed that the Motion to Dismiss was granted and that the Petitioners could filed an amended petition on or before November 11, 1991.

On November 12, 1991, Mr. Halpin filed a letter dated November 6, 1991, informing the undersigned that he had not received the Order Granting Motion to Dismiss with Leave to Amend until November 5, 1991. Therefore, Mr. Halpin requested an additional five days to file an amended petition.

On December 2, 1991, an Amended Petition for Administrative Review (hereinafter referred to as the "Amended Petition"), was filed in this case. This Amended Petition was signed by Mr. Halpin and "Blanche Moseley" as "Petitioners." Neither Mr. Fowler nor Mr. Jackson were identified as Petitioners in the Amended Petition. Nor was the Amended Petition signed by Mr. Fowler or Mr. Jackson.

In the Amended Petition, Mr. Halpin and Ms. Moseley indicated they are challenging the Challenged Rule pursuant to Sections 120.54, 120.56 and/or 120.57, Florida Statutes. Constitutional grounds for the invalidity of the Challenged Rule were also raised in the Amended Petition.

On December 3, 1991, the Respondent filed a Motion to Dismiss Amended Petition for Administrative Review. Mr. Halpin filed a pleading titled "Petitioners' [sic] Response to Respondent's Motion to Dismiss Amended Petition for Administrative Review" on December 16, 1991.

On December 10, 1991, an Order Concerning Amended Petition and Cancelling Formal Hearing was entered. In the December 10, 1991, Order the parties were informed that this case would be dismissed by Final Order. The parties were given until January 10, 1992, to file proposed final orders and were informed that a Final Order would be entered on or before January 27, 1992. None of the parties filed a proposed final order. Nor has any party requested an extension of time within which to file one.

FINDINGS OF FACT

1. The initial Petition for Administrative Review was filed on August 22, 1991.

   
   

2. The Petition was signed by Donald Eugene Halpin and Jeffery Lynn Fowler. The Petition, which was purportedly also filed by Richard Edward Jackson, was not signed by Mr. Jackson.

   
   

3. In the Petition Mr. Halpin and Mr. Fowler challenged Rule 33-3.04(9), Florida Administrative Code.

   
   

4. The Challenged Rule provides, in pertinent part:

   
   

   . . . The return address of all outgoing mail must contain the inmate's committed name, identification number and institutional address. The

   institutional name in the return address must be spelled out completely with no abbreviations.

5. It was alleged in the Petition that the Challenged Rule is "arbitrary or capricious in its application." The Petition also contained an allegation that the Challenged Rule provides "no legitimate or compelling purpose when weighed against its adverse effect on Petitioners and their family and friends."

   
   

6. Throughout the Petition it was alleged that there are "less restrictive forms the Respondent could employ to accomplish [its] goal . . . ." In this regard, the Petition contains the following allegation:

   
   

   11. Petitioners have no qualms with the Respondent informing those individuals they write that they are state correctional inmates. However, Petitioners do object to the manner in which Respondent implements this restrictive measure. There is a much less restrictive means to accomplish the same objective, i.e., letting individuals know they are receiving letters from state correctional inmates. As the rule stands now, it is arbitrary or capricious as applied to the Petitioners.

   
   

7. No facts concerning why it is believed that the Challenged Rule is an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8)(d), Florida Statutes, were included in the Petition.

   
   

8. Finally, the following relief was requested and the following statement was made in closing:

   
   

   WHEREFORE, Petitioners respectfully move the Division of Administrative Hearings to declare Chapter 33-3.04 to be arbitrary or capricious in its application.

   Furthermore, Petitioners reserve the right to proffer First and Fourteenth Amendment violations during any administrative hearings [sic] or motions for rehearing for appellate purposes.

   
   

9. On November 1, 1991, an Order Granting Motion to Dismiss with Leave to Amend was entered.

   
   

10. On December 2, 1991, a pleading titled "Amended Petition for Administrative Review" was filed by Mr. Halpin and Blanche Moseley with the case number of this case identified as the case that the pleading was being filed in. Through the Amended Petition Mr. Halpin and Ms. Moseley attempted to initiate the following challenge:

    
    

    Petitioners, Donald E. Halpin and Blanche Moseley, file their Amended Petition for Administrative Review, pursuant to Chapter [sic] 120.52(8)(d)(e), 120.56 and 120.57, Florida Statutes, to challenge Rule 33-3.004, Florida Administrative Code . . . .

    . . . .

    4. Petitioners file this action pursuant to Chapter [sic] 120.52(8)(d)(e), 120.56 (Halpin being a State Prisoner must utilize Section 120.56) and 120.57 (Ms. Moseley being a free citizen will utilize Section 120.57), Florida Statutes. Petitioners will allege Chapter [sic] 33-3.04, F.A.C., is vague, vest unbridled discretion in the agency, and is arbitrary or

    capricious in its application. Furthermore, Petitioner Moseley would allege Chapter [sic] 33-3.04, F.A.C., violates the First, Eighth and Fourteenth Amendment guarantees to the United States Constitution.

    
    

    It is further alleged under the "Conclusion" section of the Amended Petition that Ms. Moseley's challenge is based upon Section 120.54, Florida Statutes, although no proposed rule or rule amendment has been challenged in the Petition or Amended Petition.

    
    

11. In support of the allegation that the Challenged Rule is vague, it is alleged in the Amended Petition that the Challenged Rule "does not set forth why the public must be protected, e.g., the types of crimes committed by inmates, the number of inmates who violated U.S. Mail regulations, and how other crimes were committed by inmates through U.S. Mail."

    
    

12. In support of the allegation that the Challenged Rule vests unbridled discretion in the Respondent, it has been alleged in the Amended Petition that the Challenged Rule is only intended as punishment--by informing those who come in conduct with an inmate's mail that the mail is from someone who is in prison.

    
    

13. Several allegations are also included in the Amended Petition concerning how Ms. Moseley's constitutional rights are being violated by the Challenged Rule.

    
    

14. The Amended Petition is devoid of any alleged facts pertinent to the issues raised in the Petition or the Amended Petition which, if proven, would support a determination that the Challenged Rule is invalid under Sections

    120.54 or 120.56, Florida Statutes.

    
    

15. Mr. Jackson and Mr. Fowler did not file an amended petition.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. In pertinent part, Section 120.56, Florida Statutes, provides the following:

    
    

    1. Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

    2. The petition seeking an administrative determination under this section shall be in writing and shall 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. . . .

       
       

18. Rule 22I-6.003(3), Florida Administrative Code, requires that all pleadings filed with the Division of Administrative Hearings "shall contain the following: . . . (e) The signature of the person filing the pleading "

19. Challenges pursuant to Section 120.54, Florida Statutes, are generally limited to challenges to proposed rules or proposed amendments of existing rules. The only appropriate challenge to an existing rule (such as the Challenged Rule) which may be brought before the Division of Administrative Hearings is a challenge pursuant to Section 120.56, Florida Statutes.

    
    

20. 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 legislative authority."

    
    

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

    
    

    1. "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 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.

    
    

22. 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.

    
    

    The Petition

    
    

23. In the Petition, it was alleged that the Challenged Rule constitutes an "invalid exercise of delegated legislative authority" as defined in Section 120.52(8)(d) and (e), Florida Statutes.

    
    

24. No facts were alleged in the Petition in support of the allegation that the Challenged Rule comes with the definition of an "invalid exercise of delegated legislative authority" pursuant to Section 120.52(8)(d), Florida Statutes, which provides that a rule is invalid if the "rule is vague, fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency". The Petition only contained the bare assertion that the Challenged Rule comes with the definition of Section 120.52(8)(d), Florida Statutes. No facts to support this allegation were included in the Petition.

    
    

25. With regard to the allegation that the Challenged Rule comes within the definition of an "invalid exercise of delegated legislative authority" pursuant to Section 120.52(8)(e), Florida Statutes, the Petition is defective because the Petitioners admit there is a reasonable basis for the rule and

    merely argue that there are "less restrictive forms the Respondent could employ to accomplish [its] goal "

    
    

26. An arbitrary or capricious action has been defined as follows:

    
    

    A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic.

    
    

    Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2d DCA 1979). In the Petition it has been admitted that there is a reasonable basis for the goal sought to be achieved by the Respondent in the Challenged Rule. It has only been alleged in the Petition that there may be a better way to achieve the goal of the Respondent. Even if proven, the existence of a better way to achieve a legitimate agency goal cannot form the basis for declaring a rule to be arbitrary or capricious. As long as the method chosen by an agency to achieve a legitimate goal is reasonable and supported by facts and logic, the agency's action cannot be considered arbitrary or capricious merely because there may be a better way to achieve the agency's goal.

    
    

27. Based upon the foregoing, it is concluded that the Petition does not comport with the requirements of Section 120.56, Florida Statutes, and it should be dismissed.

    
    

    The Amended Petition

    
    

28. In the Amended Petition, Mr. Halpin has alleged that the Challenged Rule is an invalid exercise of delegated legislative authority pursuant to Sections 120.52(8)(d) and (e), Florida Statutes.

    
    

29. No facts were alleged in the Amended Petition sufficient to support the allegation that the Challenged Rule comes within the definition of an "invalid exercise of delegated legislative authority" pursuant to Section 120.52(8)(d), Florida Statutes.

    
    

30. A rule may be considered to be vague or to fail to establish adequate standards for agency decisions when the terms of the rule are so vague that persons of common intelligence must necessarily guess at the rules's meaning and differ as to the rule's application. State v. Cumming, 365 So.2d 153 (Fla. 1978). In City of St. Petersburg v. Pinellas County Police Benevolent Association, 414 So.2d 293 (Fla. 2d DCA 1982), the following test was applied to determine whether a rule was vague: (1) whether persons of common intelligence are required to guess at the rule's meaning; and (2) whether persons affected by the rule were properly apprised of the rule's effect on them.

    
    

31. A rule vests unbridled discretion in an agency when it fails to establish adequate standards and reserves to the agency the arbitrary power to determine private rights. Barrow v. Holland, 125 So.2d 749 (Fla. 1960).

    
    

32. The Amended Petition contains no allegations that the Challenged Rule comes within these general rules concerning what must be proved in order to conclude that the Challenged Rule comes within the definition of an "invalid exercise of delegated legislative authority" contained in Section 120.52(8)(d), Florida Statutes.

33. In support of the allegation that the Challenged Rule is vague, it was merely alleged in the Amended Petition that the Challenged Rule "does not set forth why the public must be protected, e.g., the types of crimes committed by inmates, the number of inmates who violated U.S. Mail regulations, and how other crimes were committed by inmates through U.S. Mail." In support of the allegation that the Challenged Rule vests unbridled discretion in the Respondent, it has been alleged in the Amended Petition that the Challenged Rule is only intended as punishment--by informing those who come in conduct with an inmate's mail that the mail is from someone who is in prison. These allegations cannot form the basis for a conclusion that the Challenged Rule is "vague, fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency "

    
    

34. With regard to the allegation that the Challenged Rule comes within the definition of an "invalid exercise of delegated legislative authority" pursuant to Section 120.52(8)(e), Florida Statutes, the Amended Petition is defective because it has only been alleged that the Challenged Rule is "arbitrary or capricious in its application." Such an allegation cannot support a challenge to an agency rule under Chapter 120, Florida Statutes. See Hasper

    v. Department of Administration, 459 So.2d 398 (Fla. 1st DCA 1982).

    
    

35. It has also been contended in the Amended Petition that the Challenged Rule violates the Constitution of the United States with regard to Ms. Moseley. A Hearing Officer 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).

    
    

36. More importantly, Ms. Moseley cannot be made a party in this proceeding through the filing of the Amended Petition, she cannot institute a proceeding pursuant to Section 120.57, Florida Statutes, by filing an Amended Petition with the Division of Administrative Hearings (it must be filed with the agency first) and she cannot institute a challenge pursuant to Section 120.54, Florida Statutes, to an existing rule which is not being amended. Finally, the allegations of the Amended Petition concerning Ms. Moseley's standing, even if the filing of an Amended Petition were the proper vehicle for her to file an initial rule challenge action under Chapter 120, Florida Statutes, are insufficient to conclude, even if proven, that Ms. Moseley has standing to institute a challenge to the Challenged Rule.

    
    

37. Based upon the foregoing, the Amended Petition should also be dismissed.

    
    

    Additional Ground for Dismissal of Mr. Jackson

    
    

38. The Petition filed in this case was not signed by Richard E. Jackson. Nor has Mr. Jackson filed an amended petition or any other pleading signed by him which indicates his desire to participate in this proceeding. Therefore, Mr. Jackson has not complied with the requirements of Section 120.56, Florida Statutes, or Rule 22I-6.003(3), Florida Administrative Code. Mr. Jackson should, therefore, be dismissed from participation in this proceeding even if the Petition and/or Amended Petition were adequate.

ORDER

Based upon the foregoing, it is

ORDERED that the Petition for Administrative Review and the Amended Petition for Administrative Review filed in this case are DISMISSED.

DONE and ORDERED this 17th day of January, 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 17th day of January, 1992.

COPIES FURNISHED:

Donald E. Halpin Claire Dryfuss

#076151, D-108 Assistant Attorney General Martin Correctional Institution Department of Legal Affairs 1150 S.W. Allapattah Road The Capitol, Suite 1603 Indiantown, FL 34956 Tallahassee, FL 32399-1050

Richard E. Jackson Donna Malphurs

#054990 Department of Corrections Martin Correctional Institution Suite 439

1150 S.W. Allapattah Road 2601 Blairstone Road Indiantown, FL 33456 Tallahassee, FL 32399-2500

Jeffery L. Fowler Harry K. Singletary, Jr.

#073219, D-71 Secretary

Glades Correctional Institution Department of Corrections

500 Orange Avenue Circle 2601 Blairstone Road

Belle Glade, Florida 33430 Tallahassee, FL 32399-2500

Blanche Moseley Carroll Webb

Route 3, 57 Ralph Smith Road Executive Director Wauchula, Florida 33873 Admin. Procedures Comm.

Holland Building, Room 120 Tallahassee, FL 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: 91-005328RX

Orders for Case No: 91-005328RX