STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE PUBLIC DEFENDER FOR THE ELEVENTH ) JUDICIAL CIRCUIT OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3144RP

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

This order documents the ruling of the undersigned issued pursuant to telephone conference had with counsel for the parties in the above-styled cause on July 30, 1996, with regard to Respondent's Motion To Dismiss and Petitioner's Memorandum In Opposition To Motion To Dismiss.

Counsel participating in the telephone conference were Warren S. Schwartz, Esquire, and John E. Morrison, Esquire, of the Office of the Public Defender Eleventh Judicial Circuit, Miami, Florida; and Claire Dryfuss, Esquire, of the Office of the Attorney General, Tallahassee, Florida.

FINDINGS OF FACT

1. By Petition To Determine The Invalidity Of A Proposed Rule, filed July 3, 1996, Petitioner sought to challenge Respondent's adoption of Proposed Rule 33-20.008, relating to establishment of certification standards of "Batterer's Intervention Programs" in the area of domestic violence.

   
   

2. Petitioner's alleged affectuation of substantial interests, on which standing to bring this proceeding is premised, is set forth in paragraphs 4 and

   5 of the Petition and read as follows:

   
   

   1. Petitioner's substantial interests are affected by the proposed rule because, by statute,

      it provides legal representation for many indigents subject to the legal requirements established by the proposed rules. Petitioner has an interest

      in assuring that the guidelines adopted here are available, reflect participation, are clear and are fair to its clients. As proposed, the guide- lines are not available. The attempt to adopt

      the guidelines by reference only deprives petitioner of written notice in the Florida Administrative Weekly, to which it subscribes, of the proposed guidelines and of any changes to the proposed guidelines as they are proposed and adopted.

      It also make the proposed guidelines unavailable as adopted rules, because they will not be

      available in the Florida Administrative Code. As proposed, the guidelines will not reflect participation, because the only issue in the rulemaking proceeding is whether or not the guidelines should be incorporated as rules

      of the department. The substance of the guidelines has already been established.

      The guidelines are not clear, especially

      in the area of assessment. Greater clarity

      is needed to prevent difficulties from arising on a case by case basis that petitioner will have to resolve by expending scarce resources. The guidelines are not fair to petitioner's clients, in the area of cost to indigents and in other areas. As counsel to those subject to the guidelines, petitioner's substantial interests will be affected by the proposed rule because it will be hampered in executing its responsibilities to its clients by the failings in the proposed rule just identified. Unless it takes this opportunity to resolve problems with the proposed rule here and now, petitioner will have to spend scarce resources during its representation of clients subject to the rule, case by case, to assure that each client's rights are fully protected.

      
      

   2. Petitioner also seeks to represent interests of its indigent clients in these proceedings. As indigents, its clients do not have the resources to protect themselves from the flaws in the proposed rule as that rule is applied to them.

      As counsel to a steady stream of indigents who face legal problems subject to the proposed rule, petitioner is uniquely suited to become familiar with, and to advance, its clients objections to the proposed rule. Just as associations have been given standing to seek relief on behalf of their members in rule challenge proceedings, petitioner should be permitted to seek relief

      on behalf of its statutorily defined client base.

      
      

      CONCLUSIONS OF LAW

      
      

3. The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Section 120.54(4), and Section 120.57(1), Florida Statutes.

   
   

4. In order to demonstrate standing, a petitioner must show injury in fact of sufficient immediacy to provide entitlement to a formal administrative hearing pursuant to Section 120.57, Florida Statutes, and that such substantial injury is of a type or nature for which the proceeding has been designed to protect. Agrico Chem. Co. v Dept of Environ. Reg., 406 So. 2d 478 (Fla. 2nd DCA 1981), rev.den., 415 So.2d 1359 (Fla. 1982).

   
   

5. In the instant case, Petitioner is not acting in a representative capacity for a specific client or clients in this rule challenge. Notably,

Petitioner's asserted interests are personal only to unknown individuals who may be prospectively subject to the challenged rule. Such indirect and secondary effects are insufficient to provide Petitioner the requisite standing to maintain this proceeding and, absent constitutional or statutory authority to bring such a rule challenge, Petitioner's alleged injury is not of a nature which can be considered in this forum.

CONCLUSION

Based upon the findings of fact and the conclusions of law, the Petition To Determine The Invalidity Of A Proposed Rule is DISMISSED.

DONE and ORDERED this day of 31st July, 1996, in Tallahassee, Leon County, Florida.

DON W. DAVIS, 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 31st day of July, 1996.

COPIES FURNISHED:

Stephen T. Maher, Esquire Suite 1500

201 South Biscayne Boulevard Miami, Florida 33131

Claire D. Dryfuss, Esquire

M. Catherine Lannon, Esquire Susan P. Stephens, Esquire Office of the Attorney General The Capitol Plaza Level 01 Tallahassee, Florida 32399-1050

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

Tallahassee, Florida 32399-2500

Warren S. Schwartz, Esquire John E. Morrison, Esquire

Public Defender Eleventh Judicial Circuit 1500 Northwest 12th Avenue, Number 803

Miami, Florida 33136

Harry K. Singletary, Jr., Secretary Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

Liz Cloud, Chief

Bureau of Administrative Code The Elliott Building Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO APPEAL

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 the 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: 96-003144RP

Orders for Case No: 96-003144RP