STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS ADAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7782RX

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

On December 3, 1991, the Petitioner, Douglas Adams, filed a pleading titled "Petition to Determine the Invalidity of an Existing Rule" (hereinafter referred to as the "Petition") challenging the validity of Rule 33-22.012, Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), pursuant to Section 120.56, Florida Statutes. On December 6, 1991, an Order of Assignment was entered assigning this case to the undersigned.

On December 10, 1991, the Respondent, the Department of Corrections, filed a Motion to Dismiss. In the motion the Respondent argued that the Petitioner lacked standing to institute the instant proceeding, that the Petitioner was raising constitutional issues over which the undersigned has no jurisdiction, that the Petitioner's arguments concerning the Challenged Rule are incorrect on the face of the Challenged Rule and that the Petitioner appears to be challenging the application of the Challenged Rule. The Respondent requested, therefore, that the Petition be dismissed. The Petitioner filed Petitioner's Opposition to Respondent's Motion to Dismiss.

On January 6, 1992, an Order Granting Motion to Dismiss With Leave to Amend was entered. In the January 6, 1992, Order the Petitioner was informed that it appeared that the Petitioner had failed to state with particularity the facts upon which his Petition was based and that based upon the plain language of the Challenged Rule, the Petitioner's challenge was incorrect. Therefore, the parties were informed that the motion to dismiss was granted and that the Petitioner had until January 17, 1992, to filed an amended petition.

No amended petition was filed prior to January 17, 1992, by the Petitioner.

Therefore, on January 21, 1992, an Order Concerning Failure to File Amended Petition was entered informing the parties that they could file proposed final orders on or before February 10, 1992, and that a final order would be entered on or before March 9, 1992.

On January 21, 1992, the Petitioner filed an Amended Petition to Determine the Invalidity of an Existing Rule (hereinafter referred to as the "Amended Petition"). On January 22, 1992, the Respondent filed a Motion to Dismiss Amended Petition, arguing that the Amended Petition did not correct the deficiencies of the Petition. No response to the Motion to Dismiss Amended Petition was filed by the Respondent.

On February 4, 1992, an Order Concerning Motion to Dismiss Amended Petition was entered. The parties were informed that this case would be disposed of by summary final order. The parties were informed that it would be assumed that the Petitioner has standing to institute this proceeding. The parties were also informed that they could file proposed final orders on or before February 24, 1992, and that this Final Order would be entered on or before March 16, 1992.

The parties have filed proposed final orders containing 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 or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. On December 3, 1991, the Petitioner, Douglas Adams, filed a Petition to Determine the Invalidity of an Existing Rule.

   
   

2. In the Petition, the Petitioner challenged Rule 33-22.012, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes.

   
   

3. The Petitioner is an inmate in the custody of the Respondent, the Department of Corrections.

   
   

4. The Petitioner is subject to the rules of the Respondent, including the Challenged Rule.

   
   

5. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida.

   
   

6. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida.

   
   

7. Chapter 33-22, Florida Administrative Code, contains rules governing "inmate discipline." Those rules provide the general policy of the Respondent concerning inmate discipline (Rule 33-22.001), terminology and definitions (Rule 33-22.002), the procedures for taking disciplinary action against inmates (Rules 33-22.003-33-22.010), and the "Rules of Prohibited Conduct and Penalties for Infractions (the Challenged Rule).

   
   

8. Rule 33-22.012, Florida Administrative Code, provides, in pertinent part, the following:

   
   

   33-22.012 Rules of Prohibited Conduct and Penalties for Infractions. The following table shows established maximum penalties for the indicated offenses. As used in the table, "DC" means the maximum number of days of disciplinary confinement that may be imposed and "GT" means the maximum number of days of gain time that may be taken. Any portion of either penalty may be applied. "All GT" includes both earned and unearned gain time. In addition to the penalties listed below,

   inmates may be required to pay for damaged, destroyed or misappropriated property under the provisions of rule 33-22.008(2)(b)13.

   . . . .

   
   

9. Rule 33-22.012, Florida Administrative Code, includes a table listing of various offenses for which disciplinary action may be taken and the maximum penalty for such offenses.

   
   

10. The Petitioner has alleged, in part, that the Challenged Rule is invalid because it:

    
    

    provides maximum penalties for major violations, but fails to designate, or define minor infractions, or provide sufficient guidelines to guide the agency in exercise of its discretion to designate minor infractions as opposed to major infraction listed by the rule. More particularly, the rule provides in part that "any portion of either penalty may be applied." Applying either penalty listed in this rule, which provides for loss of gaintime or disciplinary confinement, is definitionally a major violation. . . .

    
    

11. The Petition and the Amended Petition do not included any alleged facts supporting the Petitioner's assertion that the Challenged Rules are "arbitrary and capricious."

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56, Florida Statutes (1991).

    
    

13. The burden of proof in this proceeding was on the Petitioner. Florida League of Cities, Inc. v. Department of Insurance and Treasurer, 540 So.2d 850 (Fla. 1st DCA 1989); Department of Administration, Division of Retirement v. Albanese, 455 So.2d 639 (Fla. 1st DCA 1984); and Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2d DCA 1979).

    
    

14. 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. . . .

       
       

15. The only relief which may be sought pursuant to Section 120.56, Florida Statutes, is a determination of the invalidity of a rule on the ground that the rule is an "invalid exercise of delegated legislative authority."

    
    

16. 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.

    
    

17. 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 specific facts supporting such an allegation.

    
    

18. In the Petition and the Amended Petition filed in this case it was alleged that the Challenged Rule constitutes an "invalid exercise of delegated legislative authority". It was also alleged that the Challenged Rule is invalid because it is vague and vest unbridled discretion in the Respondent, and that the Challenged Rule is arbitrary and capricious.

    
    

19. Based upon the plain language of the Challenged Rule, read in pari materia with all of Chapter 33-22, Florida Administrative Code, the Challenged Rule does not vest unbridled discretion in the Respondent as argued by the Petitioner. Nor is the Challenged Rule vague in the manner alleged by the Petitioner.

    
    

20. The Challenged Rule simply lists the types of offenses which may result in disciplinary action and the maximum penalty which may be imposed for each infraction. As the Petitioner recognizes, the Challenged Rule also

    specifically provides that "[a]ny portion of either penalty (loss of gain time or disciplinary confinement) may be applied." What the Petitioner does not seem to understand is that this quoted portion of the Challenged Rule allows the imposition of from 0 days up to the maximum number of days provided for disciplinary confinement and/or gain time. In other words, the Challenged Rule specifically allows, as an example, the imposition of some part of a day of disciplinary confinement up to a maximum of 60 days and/or the loss of some part of a day up to all days of gain time if an inmate commits the offence of assault. In doing so, the Challenged Rule allows the imposition of a penalty commensurate with the severity of the infraction being punished. The Challenged Rule also allows the imposition of restitution where appropriate.

    
    

21. The Challenged Rule, although it does not specifically mention a "minor" or "major" offense, allows, and when read in conjunction with all of Chapter 33-22, Florida Administrative Code, requires, that the Respondent taken into account whether the offense for which punishment is being imposed is "minor" or "major". What constitutes a "minor" or "major" offense is defined in Rule 33-22.002(6) and (7), Florida Administrative Code. These definitions, along with the other requirements of Chapter 33-22, Florida Administrative Code, require a consideration of the severity of the offense in determining the degree of penalty to be imposed under the Challenged Rule. The Challenged Rule allows the imposition of a penalty to fit this determination of severity.

    
    

22. No sufficient statement of the particular facts which the Petitioner believes support his allegation that the Challenged Rule is arbitrary and capacious were alleged in the Petition or Amended Petition other than alleged facts concerning the application of the Challenged Rule to the Petitioner. Those facts do not support a conclusion, even if true, that the Challenged Rule is arbitrary and capricious.

    
    

23. To the extent that the Petitioner has alleged that the Challenged Rule has been improperly applied to him by the Respondent, those contentions have not been addressed. The application of the rule cannot be raised as an issue in a proceeding brought pursuant to Section 120.56, Florida Statutes. Hasper v. Department of Administration, 459 So.2d 398 (Fla. 1st DCA 1984).

    
    

24. To the extent that the Petitioner is alleging that the Challenged Rule violates constitutional provisions, those contentions may not be addressed by the undersigned. 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).

ORDER

Based upon the foregoing, it is

ORDERED that the Petitioner has failed to prove that Rule 33-22.012, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority in violation of Section 120.56, Florida Statutes.

Accordingly, the Petition to Determine the Invalidity of an Existing Rule and the Amended Petition to Determine the Invalidity of an Existing Rule filed in this case are DISMISSED.

DONE and ENTERED this 24th 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 24th day of March, 1992.

APPENDIX TO FINAL ORDER, CASE NO. 91-7782RX

The parties 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.

The Petitioner's Proposed Findings of Fact.

Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1 2.

2 Not supported by the weight of the evidence.

The Respondent's Proposed Findings of Fact.

Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1 3.

2 5.

3 1.

4 11.

COPIES FURNISHED:

Douglas Adams #031200

Liberty Correctional Institution Post Office Box 999

Bristol, Florida 32321

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

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 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: 91-007782RX

Orders for Case No: 91-007782RX