05-000422RU Teresa Burns Posey And Florida Prisoners` Legal Aid Organization, Inc. vs. Division Of Administrative Hearings Status: Closed DOAH Final Order on Tuesday, May 22, 2012.

Summary: Prisoner was ruled precluded from serving as a qualified representative in a challenge to a proposed rule in Case No. 04-4094RP. Challenge to the ruling on the basis that it constituted an un-promulgated rule was dismissed for lack of prosecution.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERESA BURNS POSEY,

Chairman, Board of Directors,

and

FLORIDA PRISONERS' LEGAL

AID ORGANIZATION, INC.,

Petitioners, Case No. 05-0422RU

vs.

DIVISION OF ADMINISTRATIVE

HEARINGS,

Respondent.

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FDtAL ORDER

1. On November 12, 2004, Petitioner Teresa Burns Posey, as

Chair of Florida Prisoners' Legal Aid Organization, Inc., filed a

petition with DOAH seeking the determination of the invalidity of

a proposed Department of Correction (hereinafter "DOC") rule

(Florida Prisoners' Legal Aid Organization, Inc.'s v. Department

of Corrections, Case No. 04-4094RP (January 26, 2005)). The

Petitioner also filed a Notice of Appearance of Authorized

Representative wherein the Petitioners asserted that Bob Posey

had been appointed to act as the corporation's (Florida

Prisoners' Legal Aid Organization, Inc.'s) authorized

representative in Case No. 04-4094RP.

2. Bob Posey, inmate # 046087 (now deceased), was at that

time incarcerated in a Department of Corrections facility within

the State of Florida.

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3. In response to the above-outlined circumstances, the

Respondent filed an objection to Mr. Posey's representation of

Florida Prisoners' Legal Aid Organization, Inc. on December 21,

2004. The objection was heard by telephonic conference calIon

January 13, 2005.

4. The administrative law judge assigned to preside over

Case No. 04-4094RP, Susan B. Harrell, ruled in favor of

Respondent as follows:

Bob Posey is incarcerated in one of Respondent's

facilities. He is a prisoner as that term is defined

in Section 944.02, Florida Statutes (2004). As a

prisoner, he is prohibited from being a party in an

administrative proceeding other than those authorized

by Subsections 120.54(3) (c) and 120.54(7), Florida

Statutes (2004). Mr. Posey, as a prisoner, cannot

bring a rule challenge.

Florida Administrative Code Rule 33-102.202

prohibits prisoners from acting as qualified

representatives in administrative proceedings. Thus,

Mr. Posey is prohibited from representing a party in an

administrative proceeding as a qualified

representative.

Petitioner cites Magnolias Nursing and

Convalescent Center v. Department of Health and st

Rehabilitative Services, 488 So. 2d 103 (Fla. 1 DCA

1986), as authority for allowing Mr. Posey to appear as

an authorized representative of Petitioner, a

corporation. In the Magnolias case, the person seeking

to represent the corporation as authorized

representative was not a prisoner, and he and his wife

were the sole owners of the capital stock of the

cooperation he was seeking to represent. Such is not

the situation in the instant case.

Mr. Posey is a prisoner who is prohibited by

statute from being a party in a rule challenge and who

is prohibited by administrative rule from representing

a party in an administrative proceeding. It is clear

that the intent of the statute and the rule is to

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· .

prohibit prisoners from participating in rule

challenges. It is

ORDERED that:

1. Petitioner's Notice of Appearance of

Authorized Representative is stricken. Bob Posey shall

not represent Petitioner in this proceeding.

2. All pleadings filed by Bob Posey in the

instant case are stricken.

3. Teresa Burns Posey filed the action for

Petitioner and is deemed to be authorized

representative until such time as Petitioner authorizes

another person to represent it.

5. On February 2, 2005 Petitioners filed a Petition seeking

the invalidity of Judge Harrell's ruling in Case No. 04-4094RP

that precluded Bob Posey from serving as a qualified

representative in Florida Prisoners' Legal Aid Organization,

Inc.'s v. Department of Corrections, Case No. 04-4094RP, as a

non-rule policy and as an invalid exercise of delegated

legislative authority.

6. On March 24, 2005 an amended Petition was filed by

Petitioners that did not change the allegations or claims made in

the February 2, 2005 Petition in a substantive manner.

7. On March 17, 2005 Respondent filed a motion to dismiss

the matter in question wherein it sought dismissal on multiple

grounds. On October 24, 2006 an amended motion to dismiss citing

additional grounds for dismissal and supporting authority.

8. The Motion to Dismiss and the Amended Motion to Dismiss

were heard by the undersigned on via teleconference hearing on

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March 14, 2012 at 2:00 P.M. All parties were notified of the

hearing via Notice of Hearing that was issued on February 23,

2012, and sent to all the parties at their addresses of record.

Edward A. Tellechea, Senior Assistant Attorney General, made an

appearance on behalf of Respondent. Petitioners did not make an

appearance nor did anyone appear on their behalf.

9. At the hearing Respondent noted that despite the facts

that Petitioners had been properly noticed of the hearing,

Petitioners had not made an appearance and it had been almost six

(6) years since the amended motion for dismissal was filed with

no action taken on this matter by Petitioner. Based on such

facts, Respondent's counsel made an ore tenus motion to dismiss

this for lack of prosecution.

Based on the foregoing, it is therefore ordered that this

matter is DISMISSED for failure to prosecute.

DONE AND ORDERED this _----::::-=----- day of _/JIl __ tV-- ,

L

2012.

Judge

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The Honorable Robert Cohen

Chief Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

Teresa Burns Posey

Chair, FPLAO

1532 E. Colonial Drive

Orlando, Florida 32826-5134

Claudia Llado, Clerk

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

Edward A. Tellechea

Chief Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, Florida 32399-1050

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