STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioners, )

)

vs. ) CASE NO. 91-5348RX

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

On August 23, 1991, the Petitioners, Donald E. Halpin, Richard E. Jackson and Jeffery L. Fowler, filed a Petition for Administrative Review. The Petitioners challenged Rules 33-6.003, 33-6.0045 and 33-6.009, Florida Administrative Code (hereinafter referred to collectively as the "Challenged Rules"), pursuant to "Chapter 120.54(9)(c), Florida Statutes, and under 120.52(8)(a), Florida Statutes."

By Order of Assignment dated August 28, 1991, this case was assigned to Larry J. Sartin, a Hearing Officer of the Division of Administrative Hearings.

On September 11, 1991, an Order of Partial Dismissal and to Show Cause was entered. Pursuant to this Order, the parties were informed that the portion of the Petition challenging the application of the Challenged Rules to the Petitioners was being dismissed, sua sponte.

The parties were also informed that there did not appear to be any reason to conduct a formal hearing on the remaining issue raised in the Petition: whether the Challenged Rules violated Section 120.54(9)(c), Florida Statutes. The parties were informed that there are essentially two reasons for holding a formal hearing: (1) to take evidence concerning disputed issues of fact; and (2) to allow the parties an opportunity to argue the applicable law. Based upon the remaining issue in the Petition filed in this case, the parties were informed that it did not

appear there were any disputed issues of material fact concerning the validity of the Challenged Rules.

The parties were informed, therefore, that there was no need to conduct a formal hearing just to give the parties an opportunity to argue the law; that they could argue the law in writing by filing proposed final orders.

Based upon the foregoing, the parties were informed in the Order of Partial Dismissal that this case would be resolved in the following manner:

1. It will be assumed that the relevant facts alleged in the Petition are correct;

2. The parties will be given an opportunity to file proposed final orders setting out the relevant facts and arguing the law; and

3. A final order will be issued after the parties have filed their proposed final orders.

The parties were given until September 30, 1991, to show cause in writing why the procedure proposed by the undersigned should not be followed. No response was received from the parties on or before September 30, 1991.

On September 27, 1991, Donald E. Halpin, filed "Petitioners' Written Objection to Order of Partial Dismissal and to Show Cause." On October 2, 1991, an Order Overruling Objection and Establishing Dates for Filing Proposed Final Orders and a Final Order was entered. Petitioner Halpin's objection was overruled and the parties were given until October 22, 1991, to file proposed final orders.

On October 23, 1991, Petitioner Halpin filed Petitioners' Proposed Final Order. Petitioner Halpin indicated that he had filed the proposed final order late because of illness and requested that his Proposed Final Order be accepted for review even though it was filed after the established deadline for filing proposed final orders. That request is hereby granted. On October 24, 1991, Petitioner Halpin filed a pleading titled Petitioners' Supplemental Authority to Proposed Final Order.

The Respondent filed Respondent's Proposed Final Order. The proposed final orders filed by Petitioner Halpin and the Respondent contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or

indirectly in this Final Order or the proposed finding of fact has been accepted in the Appendix which is attached hereto.

Petitioners Jackson and Fowler did not file a proposed final order.

FINDINGS OF FACT

1. The Petitioners, Donald Eugene Halpin, Richard Edward Jackson and Jeffery Lynn Fowler, are inmates under the supervision of the Respondent. Petitioners Halpin and Fowler are incarcerated at Glades Correctional Institution. Petitioner Jackson is incarcerated at Martin Correctional Institution.

   
   

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

   
   

3. The Petitioners have challenged Rules 33-6.003, 33-6.0045 and 33-6.009, Florida Administrative Code.

   
   

4. The Challenged Rules govern transfers of inmates and custody classification of inmates.

   
   

5. The Challenged Rules were amended by the Respondent after the Respondent enacted and applied several emergency rules governing inmate transfers and custody classification of inmates. These emergency rules were adopted during 1990 and 1991.

   
   

6. The Petitioners have alleged that the Challenged Rules are "arbitrary and capricious as applied to the Petitioners . . .

   ."

   
   

7. The Petitioners have also alleged that the Challenged Rules are invalid because they were amended "through prohibited acts as defined in Chapter 120.54(9)(c), Fla. Stat., when the Respondent ran two emergency rules (33ER91-1 & 33ER91-2) back-to- back so that Amended Chapter 33-6, etc. (1991) could be implemented."

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.54, Florida Statutes.

   
   

9. In the Petition filed by the Petitioners, the Petitioners have contended that the Challenged Rules are arbitrary and capricious "as applied to the Petitioners." The application of an

   agency rule in a particular incident or to any individual(s) does not create a basis for determining that the rule is invalid pursuant to Sections 120.54 or 120.56, Florida Statutes. See Hasper v. Department of Administration, 459 So.2d 398 (Fla. 1st DCA 1984). Therefore, the portion of the Petition filed in this case challenged the application of the Challenged Rules to the Petitioners should be dismissed.

   
   

10. One avenue for redress of the improper application of an agency's rules would normally be through a Section 120.57, Florida Statutes, proceeding. Such proceedings are not available, however, to inmates. Section 120.52(12), Florida Statutes. The proper avenue for redress of any improper application of the Respondent's rules might, therefore, lie in the Respondent's grievance procedure. It does not lie, however, in a Section

    120.54 or Section 120.56, Florida Statutes, proceeding.

    
    

11. The Petitioners have also alleged that the Challenged Rules are invalid because Challenged Rules were amended "through prohibited acts as defined in Chapter 120.54(9)(c), Fla. Stat., when the Respondent ran two emergency rules (33ER91-1 & 33ER91-2) back-to-back so that Amended Chapter 33-6, etc. (1991) could be implemented."

    
    

12. Section 120.54(9)(c), Florida Statutes, provides the following:

    
    

    (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.

    
    

13. The procedural requirements of Section 120.54(9)(c), Florida Statutes, only apply to emergency rules. None of the Challenged Rules are emergency rules. Nor have the Petitioners challenged any emergency rules in this proceeding. Therefore, to the extent that the Petitioners have alleged that the Challenge Rules violate Section 120.54(9)(c), Florida Statutes, their Petition should be dismissed.

    
    

14. The Petitioners' position in this case is essentially that the series of emergency rules dealing with transfers of inmates and custody classifications of inmates during 1990 and 1991 were invalid and, therefore, any amendment of the permanent

    rules of the Respondent governing transfers of inmates and custody classifications of inmates promulgated subsequent to those emergency rules are also invalid. In particular, it appears that it is the Petitioners' position that because 33ER91-2, which amended Chapter 33-6, Florida Administrative Code, was enacted in violation of Section 120.54(9)(c), Florida Statutes, any subsequent amendment to Chapter 33-6, Florida Administrative Code, is also in violation of Section 120.54(9)(c), Florida Statutes.

    
    

15. It is true that 33ER91-2 has been determined to have been enacted in violation of Section 120.54(9)(c), Florida Statutes. See Darryl James McGlamry v. Department of Corrections, Final Order in DOAH Case Number 91-2804R, October 1, 1991; and Donald Eugene Halpin v. Department of Corrections, Final Order in Case Number 91-1656R, October 16, 1991. There is not authority, however, which supports the Petitioners' argument that subsequent amendments to Chapter 33-6, Florida Administrative Code, is, therefore, also invalid under Section 120.54(9)(c), Florida Statutes. Section 120.54(9)(c), Florida Statutes, Florida Statutes, establishes procedural requirements which must be met by agencies when they adopt emergency rules. Those requirements have no application whatsoever to the permanent, non-emergency rules of an agency.

ORDER

Based upon the foregoing, it is

ORDERED that the Petition for Administrative Review is DISMISSED.

DONE and ORDERED this 4th 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 4th day of December, 1991.

APPENDIX

The Petitioner Halpin and the Respondent have 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. Petitioners Jackson and Fowler did not file any proposed findings of fact.

Petitioner Halpin's Proposed Findings of Fact:

Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1 1.

1. The Challenged Rules govern transfers of inmates and custody classifications of inmates in the custody of the Respondent. The Petitioners have alleged that they are in the custody of the Respondent. Therefore, they are subject to the Respondent's rules governing transfers of inmates and custody classification and, therefore, have standing to institute this proceeding.

2. Not relevant.

3. See 3, 6-7. Most of this paragraph is argument or not relevant.

4. Argument.

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.

1. The Challenged Rules govern transfers of inmates and custody classifications of inmates in the custody of the Respondent. The Petitioners have alleged that they are in the custody of the Respondent. Therefore, they are subject to the Respondent's rules governing transfers of inmates and custody classification and, therefore, have standing to institute this proceeding.

2. Hereby accepted.

4 6.

5 The Petitioners have alleged that the Challenged Rules violate Section 120.54(9)(c), Florida Statutes. 6 7.

COPIES FURNISHED:

Donald E. Halpin #076151, D-108

Glades Correctional Institution

500 Orange Avenue Circle Belle Glade, Florida 33430

Richard E. Jackson #054990

Martin Correctional Institution 1150 Southwest Allapattah Road Indiantown, Florida 33456

Jeffery L. Fowler #073219, D-71

Glades Correctional Institution

500 Orange Avenue Circle Belle Glade, Florida 33430

Claire Dryfuss

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1603

Tallahassee, Florida 32399-1050

Donna Malphurs Suite 439

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

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: 91-005348RX

Orders for Case No: 91-005348RX