00-004316RU Teresa A. Burns vs. Department Of Corrections Status: Closed DOAH Final Order on Tuesday, February 27, 2001.

Summary: Agency voluntarily commenced rule making regarding challenged policies; challenge to policies was moot. Sanctions denied because not applicable to actual hearings. Costs awarded to Petitioner; Agency withdrew policies and commenced rule making.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERESA A. BURNS, )

)

Petitioner, )

)

vs. ) Case Nos. 00-1687RU

) 00-4316RU

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

_______________________________)

ORDER GRANTING MOTION FOR FINAL SUMMARY JUDGEMENT

AND DENYING MOTION FOR SANCTIONS

Respondent moved for final summary judgement in this

cause. Petitioner moved for sanctions based upon denial of

access for Petitioner to the hearing site at Lake Correctional

Institution. Testimony was taken on Respondent's motion. A

record of the circumstances surrounding Petitioner's exclusion

from hearing are contained in the transcript of the first

day's proceeding.

I find that the policies being challenged were being

applied as unpromulgated rules, and are now in the process of

being adopted as duly promulgated rules.

Respondent's motion for summary judgement was based upon

the Secretary of the Department of Corrections having

withdrawn the policies which were challenged by Petitioner,

and initiating the rule-making process with regard to them.

The record reveals that some of these policies have been

withdrawn and others of the policies have been incorporated in

Institutional Operating Procedures (IOP) developed at the

individual institutions. Therefore, the challenge to the

policies which the Department has withdrawn is moot, and the

portions of the challenged policies which are retained in

IOPs, are valid pursuant to the authority contained in the

existing rules 1 authorizing warden's to adopt local policies.

Pursuant to Rule 120.54(1)(a)1.C., Florida Statutes, the

adoption of these policies by the wardens, who are authorized

to adopt procedures locally, would not be an impediment to

their adoption as a duly promulgated rule. Respondent's

motion for summary judgement is granted.

Petitioner's Motion for Sanctions was based upon the

denial of access to the proceedings on the first day of the

scheduled hearing. Petitioner's motion is denied because the

costs incurred by the Petitioner were related to the actual

proceeding, not discovery. While sanctions maybe imposed upon

proper motion for violation of the discovery rules, imposition

of costs in actual proceedings is limited to those cases in

which the Petitioner is the prevailing party. However,

Petitioner's motion will be treated as a motion for taxing

costs, for although inartfully phrases, Petitioner seeks

relief for her expenses.

Notwithstanding the withdrawal of these policies

voluntarily, I conclude that Petitioner successfully

challenged policies causing them to be withdrawn until

properly adopted. 2

Although attorneys' fees and lost wages are not

applicable, Petitioner may recover the costs of copying and

service of process and subpoenas. Petitioner may present

these costs by affidavit to be filed within 30 days.

Petitioner's petition is dismissed; jurisdiction to award

costs as outlined above is retained; and all other relief is

denied.

DONE AND ORDERED this 27th day of February, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of February, 2001.

ENDNOTES

1 / Chapter 33-601.701 Visiting--Authority of the Secretary

(1) The Secretary has authorized each warden to adopt

policies stating the conditions and circumstances under which

visits may be conducted, including:

(a) The regular visiting hours of the institution;

(b) The items which visitors may take in or out of an

institution, and what items are contraband;

(c) What persons or groups may visit, and in what

numbers; and

(d) The specific standards of conduct which shall prevail

during such visits.

(2) Wardens are authorized to make exceptions to any

provision of this rule on an individual, case-by-case basis,

based on the vested interests of the inmate, the security and

welfare of the Department or both. The exceptions shall not

be more restrictive than the provisions of these rules.

(3) All visiting policies promulgated by the wardens

shall be subject to approval by the Secretary or designee.

2 / One of the issues of concern to Petitioner is the future

effect of disciplinary actions taken under the challenged

procedures prior to their withdrawal. Although these are

properly the subject of a formal hearing pursuant to Section

120.57, Florida Statutes, if they become an issue, counsel for

the Department of Corrections represented at hearing that

those actions had been set aside, and would not be considered

a past violation in any future proceedings.

COPIES FURNISHED:

Bob Posey

DC No. 046087

Lake Correctional Institution

19225 U.S. Highway 27

Clermont, Florida 34711-9025

Edward A. Tellechea, Esquire

Office of the Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Louis A. Vargas, General Counsel

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-6563

Liz Cloud, Chief

Bureau of Administrative Code

Department of State

The Elliott Building, Room 201

Tallahassee, Florida 32399-0250

Carroll Webb

Executive Director and General Counsel

Joint Administrative Procedures Committee

Holland B uilding, Room 120

Tallahassee, Florida 32399-1300

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 coy, accompanied by filing fees prescribed by law, with

the District Court of Appeal, First District, or in 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.