STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TIMOTHY DON WELBORN )

)

Petitioner, )

)

vs. ) CASE NO. 92-2339RP

)

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DEPARTMENT OF CORRECTIONS, )

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Respondent. )

)

ORDER DISMISSING PETITION

This cause came on for consideration of Respondent's Motion To Dismiss the Petition filed in this case to challenge proposed Rule 33-4.010(3), Florida Administrative Code. As grounds for the Motion to Dismiss, Respondent has alleged Petitioner has failed to demonstrate standing.

In Agrico-Chemical Co. v. DER, et al., 406 So.2d 478 (Fla. 2nd DCA 1981), the court held that before one can be considered to have a substantial interest in the outcome of the administrative proceedings and thus be entitled to appear as a party, he must show that he will suffer injury in fact which is of sufficient immediacy to entitle him to a hearing under the Administrative Procedures Act and that his substantial injury is of the type or nature which the proceedings is designed to protect. accord North Ridge General Hospital v. NME Hospital, 478 So.2d 1138 (Fla. 1st DCA 1985).

A Petitioner can satisfy the injury-in-fact standard set forth in Agrico by demonstrating in his petition either: (1) that he had sustained actual injury in fact at the time of filing his petition; or (2) that he is immediately in danger of sustaining some direct injury as a result of the challenged agency's action.

DHRS v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979), involved a challenge to a rule restricting the use of public funds for abortions. This case held that since the Petitioners were not pregnant they did not have standing to challenge the rule and the Hearing Officer's ruling that all women of child bearing age had standing to challenge the proposed rule was clearly erroneous.

It is noted that in his petition Petitioner alleges he is substantially affected by the proposed rule "in that anytime in the future I could be in this exact situation." This is not an allegation that Petitioner will suffer injury in fact or is in immediate danger of sustaining some direct injury as a result of the proposed rule. Accordingly, it is

ORDERED:

The Petition of Timothy Don Welborn challenging proposed Rule 33-4.010(3), Florida Administrative Code, be dismissed without prejudice.

DONE and ORDERED this 28th day of April, 1992, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1992.

ENDNOTES

1/ Since all Petitioners submitted joint (identical) proposed findings of fact in Paragraphs 1-67, rulings on those proposed findings were collectively made. Proposed findings which are unique to each Petitioner were substantially adopted in the Final Order, except as specifically ruled upon herein.

COPIES FURNISHED:

Timothy Don Welborn

27 Mango Avenue

Belle Glade, FL 33430

Carroll Webb Executive Director

Administrative Procedures Committee Holland Building, Room 120 Tallahassee, FL 32399-1300

Louis A. Vargas, Esquire Department of Corrections 2601 Blairstone Road

Tallahassee, FL 32399-2500

Claire D. Dryfuss, Esquire Department of Legal Affairs The Capitol, Suite 1603 Tallahassee, FL 32399-1050

Donna Malphurse Department of Corrections 2601 Blairstone Road

Tallahassee, FL 32399-2500

Docket for Case No: 92-002339RP

Orders for Case No: 92-002339RP