STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERVIN JAMES HORTON, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7189RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

On November 8, 1991, the Petitioner, Ervin James Horton, filed a Petition for Administrative Hearing (hereinafter referred to as the "Petition"). In the Petition, the Petitioner attempted to challenge Rules "33-3.001, 33-3.006, 33- 3.0025, 33-22.004(3)(A), 33-22.0012 Code 3, s. 3-12, 33-29 and 33-4.001, 33-

1. " (hereinafter referred to as the "Challenged Rules"), and Internal Operating Procedure Number AG-91.51 (hereinafter referred to as the "IOP"), pursuant to Section 120.56(1), Florida Statutes.

   
   

   By Order of Assignment dated November 12, 1991, this case was assigned to the undersigned. A formal hearing was scheduled for December 9, 1991, by Notice of Hearing entered November 13, 1991.

   
   

   On November 18, 1991, the Respondent filed a Motion to Dismiss. In this Motion the Respondent argued that this case should be dismissed because the Petitioner had failed to allege sufficient facts to show that the Challenged Rules constitute an "invalid exercise of delegated legislative authority." The Respondent also argued that the Petitioner was apparently attacking the actions of certain individuals in applying and implementing the Challenged Rules and the IOP which cannot constitute the basis of an action brought pursuant to Section 120.56, Florida Statutes. Finally, the Respondent argued that the undersigned has no jurisdiction to decide the constitutional issues raised by the Petitioner. The Petitioner did not file a response to the Respondent's Motion to Dismiss.

   
   

   On December 4, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. Pursuant to the December 4, 1991, Order, the parties were informed that it had been determined that the grounds for dismissal stated in the Motion to dismiss were correct. The Petitioner was also informed that his Petition was inadequate for essentially the same reason his petitions filed in five other cases (91-5818R, 91-5915R, 91- 6345R and 91-6346R) had been dismissed.

   
   

   Based upon the foregoing, the Petitioner was informed that the Motion to Dismiss was granted and that the Petitioner could filed an amended petition on or before January 3, 1992.

   
   

   On December 23, 1991, a single Amended Petition was filed in this case and in case number 91-7190R by the Petitioner. In the Amended Petition the Petitioner added the Department of Legal Affairs and the State Attorney of the

   Eighth Judicial Circuit as Respondents (they were named as the Respondents in case number 91-7190R).

   
   

   On December 23, 1991, the Petitioner also filed a Motion for Enlargement of Time to Respond to Motion to Dismiss. On January 6, 1992, an order was entered noting that the request for additional time was moot in light of the fact that the Petitioner had filed an Amended Petition.

   
   

   On December 16, 1991, the Respondent filed a Motion for Consolidation requesting that this case be consolidated with case number 91-7190R. This motion was denied by Order entered January 6, 1992.

   
   

   On January 14, 1992, an Order Concerning Amended Petition was entered. In the January 14, 1992, Order the parties were informed that this case would be dismissed by Final Order. The parties were given until February 10, 1992, to file proposed final orders and were informed that a Final Order would be entered on or before March 6, 1992. Neither party has filed a proposed final order.

   
   

   FINDINGS OF FACT

   
   

   1. The initial Petition for Administrative Hearing was filed on November 8, 1991.

      
      

   2. The Petition was filed by Ervin James Horton.

3. In the Petition Rules "33-3.001, 33-3.006, 33-3.0025, 33-22.004(3)(A),

33-22.0012 Code 3, s. 3-12, 33-29 and 33-4.001, 33-4.002" and Internal Operating Procedure Number AG-91.51 were challenged.

1. Most of the Challenged Rules are lengthy and deal with a number of subjects. The common thread of the Challenged Rules and IOP concerns the possession of contraband and punishment therefor.

   
   

2. The Petition is, to say the least, confusing. This confusion is caused by the Petitioners frequent use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 2, State of the Case and Facts, provides the following:

   
   

   2. That the (Respondents) Rules as 33-29 et. seq. 33- 3.006, 33-3.0025, 33-22.0012 Code 3, s 3-12 is [sic] invalid, arbitrary, capricious, vague, delegation to exceed, modify, contravenes, the specific provisions of laws [sic] implemented, citation required by 120.54(7),

   1. Florida Statutes and 944.09(1)(A).

      
      

      This paragraph is fairly typical of most of the Petition. Although it contains some "legalese", it does 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.

      
      

3. Apparently, the Petitioner is complaining of the actions of employees of the Respondent in punishing the Petitioner for having contraband in his possession.

   
   

4. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rules and the IOP. 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 or the IOP are unconstitutional.

   
   

5. Insufficient alleged facts concerning why it is believed that the Challenged Rules and the IOP are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition.

   
   

6. On December 4, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered.

   
   

7. On December 23, 1991, an Amended Petition was filed by the Petitioner. The Amended Petition consolidated the Petitioner's challenges in this case and case number 90-7190R.

   
   

8. The Amended Petition is very similar to the Petition and suffers from the same deficiencies. Additionally, the Petitioner includes the Department of Legal Affairs, and the State Attorney of the Eighth Judicial Circuit, the Respondents in case number 91-7190R as Respondents and addresses his challenge to other rules, internal operating procedures and directives of the other named Respondents challenged in case number 91-7190R.

   
   

9. The Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the Amended Petition which, if proven, would support a determination that the Challenged Rules, the IOP or the other matters challenged in the Amended Petition are invalid under Section 120.56, Florida Statutes.

   
   

10. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.

    
    

    CONCLUSIONS OF LAW

    
    

11. 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.

    
    

12. 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. . . .

       
       

13. 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."

14. 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.

    
    

15. 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.

    
    

16. In the Petition and the Amended Petition it was alleged that the Challenged Rules, the IOP and other materials constitute an "invalid exercise of delegated legislative authority". It has also been alleged that the Challenged Rules, the IOP and the other materials 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 some of the language contained in Section 120.52(8), Florida Statutes.

    
    

17. 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 IOP and the other materials come within the definitions of Section 120.52(8), Florida Statutes.

    
    

18. The Petition and Amended Petition attempt to challenge the alleged actions of certain employees of the Respondent. These allegations, if true, might support a conclusion that the Challenged Rules, the IOP and/or the other materials 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).

    
    

19. It has also been contended in the Petition and the Amended Petition that the Challenged Rules, the IOP and the other materials violate the Constitutions of the United States and the State of Florida. 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).

    
    

20. Based upon the foregoing, it is concluded that the Petition and the Amended Petition do not comport with the requirements of Section 120.56, Florida Statutes, and this case should be dismissed.

ORDER

Based upon the foregoing, it is

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

DONE and ORDERED this 10th 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 10th day of March, 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

Louis A. Vargas General Counsel

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Harry K. Singletary, Jr., Secretary 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.

Docket for Case No: 91-007189RX

Orders for Case No: 91-007189RX