STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER B. DOLINGER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3471RX

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to an Order of Assignment entered June 11, 1992, this case was assigned to Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Peter B. Dolinger, pro se

c/o Florida Prisoner Legal Research and Representation Services

35246 U.S. Highway 19 North,

Suite 111

Palm Harbor, Florida 34684

For Respondent: Claire Dryfuss

Assistant Attorney General Division of General Legal Services Department of Legal Affairs

Suite 1603, The Capitol Tallahassee, Florida 32399-1300

STATEMENT OF THE ISSUES

Whether Rule 33-6.006(9), Florida Administrative Code, constitutes an invalid exercise of delegated authority?

PRELIMINARY STATEMENT

On June 10, 1992, the Petitioner, Peter B. Dolinger, filed a Petition for Determination of the Invalidity of an Existing Rule challenging the validity of Rule 33-6.006(9), Florida Administrative Code (the Petitioner incorrectly referred to the challenged rule as Rule 33-3.006(9) in the petition). By Order of Assignment entered June 11, 1992, the case was assigned to the undersigned. The final hearing of this case was scheduled for July 14, 1992.

On June 18, 1992, the Respondent, the Department of Corrections, filed a Motion to Dismiss or, Alternatively, for Summary Final Order. The Petitioner filed a response in opposition to the motion on June 29, 1992. On July 2, 1992, an order was entered informing the parties that certain new allegations of fact

contained in the Petitioner's response to the motion would be treated as part of his petition and that, based upon the alleged facts contained in the petition and the Petitioner's response, the motion to dismiss would be denied.

As to the Respondent's alternative motion that this case be disposed of by summary final order, the parties were informed that it appeared that the Petitioner was only challenging the facial validity of the rule at issue.

Therefore, the parties were informed that the undersigned intended to accept the alleged facts concerning standing, although not the conclusions of law based thereon, as being true and enter a final order in this case without a formal administrative hearing.

The parties were given until July 13, 1992, to file proposed final orders and were informed that this Final Order would be entered on or before August 3, 1992. The Respondent filed a proposed final order 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. The Petitioner did not file a proposed final order.

FINDINGS OF FACT

A. Standing.

1. The Petitioner, Peter B. Dolinger, is not incarcerated by the Respondent, the Department of Corrections. The Petitioner is, therefore, not subject to the rules of the Respondent, including the rule at issue in this proceeding.

   
   

2. The Petitioner is an independent paralegal who owns and operates a sole proprietorship specializing in prisoner related issues. The intended scope of the Petitioner's business is to include research and pleading preparation for licensed members of the Florida Bar; agency representation before state agencies, in a qualified non-attorney representative status.

   
   

3. The Petitioner, while representing an inmate in an unrelated administrative proceeding before the Division of Administrative Hearings, Archie

   1. White v. Parole and Probation Commission, DOAH Case No. 92-2392RXP, sought the release of the inmate's records from the Respondent. The request was denied by the Respondent pursuant to Rule 33-6.006(9), Florida Administrative Code.

      
      

4. Archie D. White v. Parole and Probation Commission, DOAH Case No. 92- 2392RXP, is no longer pending before the Division of Administrative Hearings. A Final Order was entered in that case in June, 1992.

   
   

   1. The Respondent.

      
      

5. The Respondent is the state agency required to adopt rules governing the administration of the correctional system in Florida.

   
   

   1. Rule 33-6.006(9), Florida Administrative Code.

   
   

6. Rule 33-6.006(9), Florida Administrative Code, provides:

   
   

   (9) When it is reasonably believed that a party may divulge information contained in the files of the department to an

   offender, the department shall restrict release of any information to that party.

   
   

7. The Petitioner has alleged that Rule 33-6.006(9), Florida Administrative Code, "facially fails to establish an adeqaute [sic] standard for agency decisions. In other words, a person of common intelligence may imply the utilization of a 'reasonable' etst [sic] or standard thstb [sic] differs in totality from thst [sic] of another, most notably in the absence of definition, guidelines or policy on the standard to be applied."

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

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

   
   

   1. Standing.

   
   

9. The Petitioner has failed to allege sufficient facts to prove that he has standing to institute the instant action. He is not incarcerated by the Respondent and, therefore, is not generally subject to the rules of the Respondent. Although persons other than inmates may be subject to the rule at issue in this case, the Petitioner has failed to allege facts sufficient to prove that he is currently affected by the challenged rule.

   
   

10. The Petitioner has attempted to show standing in this case based upon his business of representing inmates as a non-attorney qualified representative. Rule 22I-6.008, Florida Administrative Code, a rule of the Division of Administrative Hearings, authorizes such representation. Effective July 1, 1992, however, inmates may no longer institute any proceeding before the Division of Administrative Hearings. Therefore, the Petitioner can no longer act as a representative for inmates pursuant to the Division of Administrative Hearings' rules. The Petitioner has cited no other authority by which he may represent inmates. Consequently, the Petitioner has failed to allege any facts which would support a conclusion that he would have the right to obtain access to inmate records.

    
    

11. The Petitioner has alleged that he has attempted to utilize Rule 33- 6.006(9), Florida Administrative Code, in conjunction with one particular case. Although the Petitioner has alleged that he was denied access to the records of the inmate involved in that case, thus creating a possible immediate injury in support of his standing, that case is no longer before the Division of Administrative Hearings. A Final Order was entered in June, 1992, however, in that case. The actions of the Respondent in that case, at least with regard to the issue of whether the Petitioner has standing in this case, are moot.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petitioner has failed to allege sufficient fact to prove

that he has standing to challenge Rule 33-6.006(9), Florida Administrative Code,

and the Petitioner's Petition for Determination of the Invalidity of an Existing Rule is DISMISSED.

DONE and ENTERED this 3 day of August, 1992, in Tallahassee, Florida.

Case Number 92-3471RX

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 3 day of August, 1992.

APPENDIX

The Respondent has 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 Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1 1.

2 See 3 and 4. The Petitioner failed to prove that, after July 1, 1992, he is authorized to represent inmates and to obtain access to inmate records from the Respondent.

3 5.

4 7.

COPIES FURNISHED:

Peter B. Dolinger

c/o Florida Prisoner Legal Research and Representation Services

35246 U.S. Highway 19 North, Suite 111 Palm Harbor, Florida 34684

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

Harry K. Singletary, Jr., Sec. 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.

Docket for Case No: 92-003471RX

Orders for Case No: 92-003471RX