STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ERVIN JAMES HORTON, )
)
Petitioner, )
)
vs. ) CASE NOS. 91-6345RX
) 91-6346RX
DEPARTMENT OF CORRECTIONS, )
)
Respondent. )
)
FINAL ORDER OF DISMISSAL
On October 4, 1991, the Petitioner, Ervin James Horton, filed two Petitions for Administrative Hearing (hereinafter referred to as the "Petitions"). In the Petitions, the Petitioner attempted to challenge Rules 33-3.005, 33-3.0051, and 33-3.0083(5)(i), and Chapter 33-22, Florida Administrative Code (hereinafter referred to as the "Challenged Rules"), Internal Operating Procedures P13.91.34 and P14.91.23 (hereinafter referred to as the "I.O.P's"), and "Post Order Number 46" pursuant to Section 120.56(1), Florida Statutes.
By Orders of Assignment dated October 7, 1991, both Petitions were assigned to the undersigned. On October 17, 1991, an Order Granting Motion for Consolidation was entered consolidating these cases.
A formal hearing was scheduled for November 18, 1991, by Notice of Hearing entered November 9, 1991. On November 1, 1991, an Order Denying Motion to Reschedule Final Hearing and Motion for Continuance was entered. The November 1, 1991, Order denied the Respondent's motions requesting that the final hearing be scheduled within thirty days of the date of assignment of these cases and the Petitioner's motions requesting a further delay of the final hearing.
On October 17, 1991, the Respondent filed a Motion to Dismiss in both cases. In these Motions the Respondent argued that these cases should be dismissed for the following reasons: (1) the Petitioner had failed to allege sufficient facts to show that the Challenged Rules are an "invalid exercise of delegated legislative authority"; (2) the Petitioner is apparently attacking the actions of certain individuals in applying and implementing the Challenged Rules which cannot constitute a basis of an action brought pursuant to Section 120.56, Florida Statutes; (3) I.O.P's and Post Orders are not rules subject to challenge pursuant to Section 120.56, Florida Statutes; (4) the undersigned has no jurisdiction to decide the constitutional issues raised by the Petitioner; (5) a final order dismissing a challenge by the Petitioner to Rule 33-3.005, Florida Administrative Code, bars the Petitioner's challenge to this rule pursuant to the doctrine of res judicata; and (6) the validity of Rules 33-3.0051, 33- 22.001, 33-22.003, 33-22.012, Florida Administrative Code, was upheld in final orders issued by the Division of Administrative Hearings and therefore the Petitioner's challenge to these rules is barred by the doctrine of collateral estoppel.
On October 24, 1991, the Petitioner filed a response to the Respondent's Motions to Dismiss.
On November 14, 1991, an Order Granting Motions to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. Pursuant to the November 14, 1991, Order, the parties were informed: (1) the Petitions failed to allege sufficient facts to show that the Challenged Rules constitute an "invalid exercise of delegated legislative authority"; (2) it appeared that the Petitioner was merely challenging the actions of several employees of the Respondent and that the undersigned had no jurisdiction to determine if the actions of employees of the Respondent were proper or consistent with the Respondent's rules, Florida Statutes or constitutional law; (3) the undersigned did not have jurisdiction to entertain the Petitioner's constitutional challenges; (4) the Petitioner's challenge to Rule 33-3.005, Florida Administrative Code, in case number 91-6345R, was barred by the doctrine of res judicata; (5) the doctrine of collateral estoppel does not bar the Petitioner's challenge to Rules 33-3.0051, 33-22.001, 33-22.003 or 33-22.012, Florida Administrative Code; and (5) challenges to internal operating procedures and post orders are not the proper subjects of a rule challenge pursuant to Section 120.56, Florida Statutes.
Based upon the foregoing, the Petitioner was informed that the Motions to Dismiss were granted. The Petitioner was granted leave to file amended petitions on or before December 2, 1991.
On November 21, 1991, the Petitioner filed a Motion for Enlargement of Time to Comply to Order to Amend. The Petitioner, however, also filed an Amended Petition in these cases on the same day. On November 26, 1991, the Respondent filed a Motion to Dismiss Amended Petition.
On December 9, 1991, an Order Concerning Motion for Enlargement of Time and Granting Motion to Dismiss Amended Petition was entered. Pursuant to this Order the parties were informed that the Petitioner's Motion for Enlargement of Time to Comply to Order to Amend appeared to be moot in light of the fact that the Petitioner had filed an Amended Petition. The parties were also informed that the Amended Petition did not correct the problems associated with the Petitions and that, therefore, the Motion to Dismiss Amended Petition was granted. The parties were informed that a Final Order dismissing these cases would be entered on or before February 10, 1992. The parties were given until January 20, 1992, to file proposed final orders. Neither party has filed a proposed final order.
On December 11, 1991, the Petitioner filed Petitioner's Motion to File a [sic] Amended Petition or Second Amendmet [sic]. This motion was denied by Order entered December 18, 1991. On December 13, 1991, the Petitioner filed a Motion to Correct Order and, or Alternative Relief. This motion was denied by Order entered December 16, 1991.
FINDINGS OF FACT
The initial Petitions for Administrative Hearing were filed on October 4, 1991.
The Petitions were filed by Ervin James Horton.
In the Petition filed in case number 91-6345R, Rules 33-3.005, 33- 3.0051, 33-3.0083(5)(i), Florida Administrative Code, I.O.P. P13.91.34, I.O.P. P14.91.25 and Post Order 46 were challenged.
In the Petition filed in case number 91-6346R, Rules 33-22.001, 33- 22.002, 33-22.003, 33-22.008, 33-22.012, and 33-3.005, Florida Administrative Code, were challenged.
The rules challenged by the Petitioner are titled "Legal Documents and Legal and Privileged Mail" (Rule 33-3.005), and "Copying Services for Inmates" (Rule 33-3.0051). Chapter 33-22, Florida Administrative Code, provides rules governing "Inmate Discipline." Rule 33-3.0083(5)(i), Florida Administrative Code, does not exist.
The I.O.P's apparently deal with the same general subjects as the Challenged Rules.
The Petitions include the use of legal terms and phrases with little in the way of factual explanation. Although the Petitions contain some "legalize", they do not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge.
Apparently, the Petitioner is complaining of the actions of several employees of the Respondent relating to a variety of alleged incidents involving the Petitioner.
In case number 91-6345R, the Petitioner complained of alleged incidents involving denial of his copying and mail privileges. The Petitioner argued that his access to the courts and his ability to carry out contracts have been impaired by the actions of employees of the Respondent in enforcing the Challenged Rules.
In case number 91-6346R, the Petitioner complained of several alleged incidents involving disciplinary actions taken against him pursuant to Chapter 33-22, Florida Administrative Code. The Petitioner argued that the application of Chapter 33-22, Florida Administrative Code, was improper.
The incidents complained of by the Petitioner have allegedly been the subject of unsuccessful grievance proceedings. Having failed to obtain a favorable response to his grievances, the Petitioner is seeking through this process to have the incidents reviewed. The Petitioner's allegations concerning the alleged incidents are not merely allegations intended to prove the Petitioner's standing to institute this proceeding. The Petitioner is complaining about, and seeking review of, alleged actions of the Respondent.
The Petitioner has also attempted to raise constitutional arguments to support his challenges. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rules are unconstitutional.
Insufficient alleged facts concerning why it is believed that the specific requirements or provisions of the Challenged Rules are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petitions and the Amended Petition.
On November 14, 1991, an Order Granting Motions to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered.
On November 21, 1991, the Petitioner filed a Motion for Enlargement of Time to Comply to Order to Amend. The Petitioner, however, also filed an Amended Petition in these cases on the same day.
The Amended Petition is very similar to the Petitions and suffers from the same deficiencies.
The Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petitions which, if proven, would support a determination that the Challenged Rules are invalid under Section 120.56, Florida Statutes.
On December 9, 1991, an Order Concerning Motion for Enlargement of Time and Granting Motion to Dismiss Amended Petition was entered. Pursuant to this Order the parties were informed the Amended Petition was dismissed and were given an opportunity to file proposed final orders.
On December 11, 1991, the Petitioner filed Petitioner's Motion to File a [sic] Amended Petition or Second Amendmet [sic]. This motion was denied by Order entered December 18, 1991. On December 13, 1991, the Petitioner filed a Motion to Correct Order and, or Alternative Relief. This motion was denied by Order entered December 16, 1991.
The Petitioner has challenged Rules 33-3.005, 33-22.001 and 33-22.003, Florida Administrative Code. See Horton v. Department of Corrections, 9
F.A.L.R. 2270 (DOAH Case No. 86-4515R 1987) and Horton v. Department of Corrections, 10 F.A.L.R. 5254 (DOAH Case No. 87-2908R 1988).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56, Florida Statutes.
In pertinent part, Section 120.56, Florida Statutes, provides the following:
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.
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. . . .
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."
What constitutes an "invalid exercise of delegated legislative authority" is defined in Section 120.52(8), Florida Statutes, as follows:
"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:
The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);
The rule is vague, fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency; or
The rule is arbitrary or capricious.
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.
In the Petitions and the Amended Petition it was alleged that the Challenged Rules, the I.O.P's and the Post Order constitute an "invalid exercise of delegated legislative authority". It has also been alleged that the Challenged Rules, the I.O.P's and the Post Order are invalid pursuant to some of the specific provisions of Section 120.52(8), Florida Statutes. These allegations are, however, no more than restatements of the language contained in Sections 120.52(8) and 120.56, Florida Statutes.
No sufficient statement of the particular facts which the Petitioner believes support his challenge were alleged in the Petition or the Amended Petition. The Petition and Amended Petition essentially contain bare assertions that the Challenged Rules, the I.O.P's and the Post Order come within the definitions of Section 120.52(8), Florida Statutes, and are, therefore, invalid pursuant to Section 120.56, Florida Statutes.
In reality the Petitions and the Amended Petition constitute an attempt by the Petitioner to challenge the alleged actions of certain employees of the Respondent involving disciplinary actions taken against the Petitioner and the loss of certain privileges as a result of those disciplinary actions. These allegations, if true, might support a conclusion that the Challenged Rules, the I.O.P's and/or the Post Order have not been applied properly or have not been followed by some employees of the Respondent. Misapplication of, or the failure to follow, an agency rule cannot, however, support a challenge to that agency rule under Chapter 120, Florida Statutes. See Hasper v. Department of Administration, 459 So.2d 398 (Fla. 1st DCA 1982). The allegations concerning disciplinary actions taken against the Petitioner and the loss of privileges cannot support a challenge to the Challenged Rules pursuant to Section 120.56, Florida Statutes.
It has also been contended in the Petition and the Amended Petition that the Challenged Rules violate constitutional provisions. 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).
The Petitioner has attempted to challenge internal operating procedures and a Post Order of the Respondent. Internal operating procedures and post orders are not the proper subject of a challenge pursuant to Section 120.56, Florida Statutes. See Hendrix v. Department of Corrections, 16 F.L.W. D282 (Fla. 1st DCA 1991); and Adams v. Barton, 507 So.2d 665 (Fla. 1st DCA 1987).
Finally, the Petitioner has previously unsuccessfully challenged Rule 33-3.005, Florida Administrative Code. Horton v. Department of Corrections, 10
F.A.L.R. 5254 (DOAH Case No. 87-2908R 1987). The Petitioner is barred from bringing a second challenge to this rule. See Marell v. Hardy, 450 So.2d 1207 (Fla. 4th DCA 1984).
The Respondent's argument that the challenge to Rule 33-3.0051, Florida Administrative Code, is barred by the doctrine of collateral estoppel, because the validity of this rule was upheld in Cribbs v. Department of Corrections, 10 F.A.L.R. (DOAH Case No. 98-4678R 1987), is rejected. The Respondent's argument that the challenge to Rules 33-22.001 and 33-22.003, Florida Administrative Code, is barred by the dismissal of a challenge to those rules which was dismissed by Final Order in Horton v. Department of Corrections,
9 F.A.L.R. 2270 (DOAH Case No. 86-4515R 1986), is also rejected. Finally, the Respondent's argument that the challenge to Rule 33-22.012, Florida Administrative Code, should be dismissed because the validity of this rule was upheld in Piccirillo v. Department of Corrections, (DOAH Case No. 84-2218R 1984), is rejected.
Based upon the foregoing, it is concluded that the Petitions and the Amended Petition do not comport with the requirements of Section 120.56, Florida Statutes, and these cases should be dismissed.
ORDER
Based upon the foregoing, it is
ORDERED that the Petitions for Administrative Hearing and the Amended Petition filed in these cases are DISMISSED.
DONE and ORDERED this 25th day of February, 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 25th day of February, 1992.
COPIES FURNISHED:
Ervin James Horton Number 037253 Florida State Prison Post Office Box 747
Starke, Florida 32091-0747
Claire Dryfuss
Assistant Attorney General Division of General Legal Services Department of Legal Affairs
Suite 1603, The Capitol 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
Louis A. Vargas General Counsel
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.
| Issue Date | Proceedings |
|---|---|
| Jun. 26, 1992 | Index, Record, Certificate of Record sent out. |
| May 11, 1992 | Index & Statement of Service sent out. |
| Mar. 25, 1992 | Order Certifying Indigency sent out. |
| Mar. 25, 1992 | Order Certifying Indigency sent out. |
| Mar. 23, 1992 | Certificate of Notice of Appeal sent out. |
| Mar. 23, 1992 | Motion for Leave to proceed on appeal on forma pauperis filed. |
| Mar. 23, 1992 | Notice of Appeal filed. |
| Feb. 25, 1992 | CASE CLOSED. Final Order of Dismissal sent out. |
| Dec. 18, 1991 | Order Denying Petitioner`s Motion to File A [SIC] Amended Petition or Second Amendment sent out. |
| Dec. 17, 1991 | Order Concerning Date of Certificate of Service sent out. |
| Dec. 16, 1991 | Order Denying Motion to Supplement Facts and Motion to Correct Order and, or Alternative Relief sent out. |
| Dec. 13, 1991 | Motion to Correct Order and, Or Alternative Relief; Motion to Supplement Facts and Authority In Light of Conflict of Interest & No Relief on F. S. P. Administrative Level Pursuant to 38-29.004 (B) filed. (From Ervin Horton) |
| Dec. 13, 1991 | Witness and Request for Subpoenas filed. (From Ervin Horton) |
| Dec. 11, 1991 | Petitioner`s Motion to File A Amended Petition or Second Amendment filed. |
| Dec. 09, 1991 | Order Concerning Motion for Enlargement of Time and Granting Motion to Dismiss Amended Petition sent out. |
| Nov. 26, 1991 | Motion to Dismiss Amended Petition filed. |
| Nov. 21, 1991 | (Petitioner) Motion for Enlargement of Time to Comply to Order to Amend; Amended Petition filed. |
| Nov. 14, 1991 | Order Granting Motions to Dismiss With Leave to Amend and Cancelling Formal Hearing sent out. |
| Nov. 01, 1991 | Order Denying Motion to Reschedule Final Hearing and Motion for Continuance sent out. |
| Nov. 01, 1991 | Order Denying Motion to Supplement Petition with Exhibits Listed in the Petition and Denying Motion of Acknowledging and, Supplement Exhibit to Petitions sent out. |
| Oct. 24, 1991 | (Petitioner) Motion to Supplement Petition With Exhibit Listed in the Petition; Motion for Continuance filed. |
| Oct. 24, 1991 | Petitioner`s Response to Motion to Dismiss filed. |
| Oct. 24, 1991 | (Respondent) Response to Motion for Continuance; Response to Motion to Supplement Petition with Exhibit`s (SIC) Listed in the Petition filed. |
| Oct. 24, 1991 | (Respondent) Response to Motion of Acknowledging and, Supplement Exhibit to Petition`s (SIC) ; Notice of Failure to Serve Motion filed. |
| Oct. 23, 1991 | Order sent out. (RE: Petitioner`s request to forward petitions, denied). |
| Oct. 21, 1991 | Letter to MHL from Ervin J. Horton (re: displaying major points to Cynthia M. Chestnut) filed. |
| Oct. 17, 1991 | Respondent`s Motion to Dismiss filed. |
| Oct. 17, 1991 | Order Granting Motion for Consolidation sent out. 91-6345R & 91-6346 Reconsolidated. |
| Oct. 15, 1991 | (Respondent) Motion to Reschedule Final Hearing filed. |
| Oct. 09, 1991 | Notice of Hearing sent out. (hearing set for 11/18/91; at 9:00am; BY TELEPHONE) |
| Oct. 08, 1991 | Pre-hearing Order sent out. |
| Oct. 07, 1991 | Letter to Liz Cloud & Carroll Webb from Marguerite Lockard |
| Oct. 07, 1991 | Order of Assignment sent out. |
| Oct. 04, 1991 | Petition for Administrative Hearing; Motion for Leave To Proceed Informa Pauperis and Affidavit of Insolvency; Motion for Consolidation filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 25, 1992 | DOAH Final Order | Petition of inmate challenging DOC rules did not allege sufficient basis for rule challenge proceeding. |
