11-003853RP Jaylin Figueroa vs. Department Of Corrections
 Status: Closed
DOAH Final Order on Thursday, September 22, 2011.


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Summary: The allegations in the petitions, taken as true, were insufficient to establish standing, and the petitions were dismised.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ALBERT FIGUEROA, JAYLIN )

12FIGUEROA, AND MARTIN L. GLICK, )

18)

19Petitioners, )

21) Case Nos. 11 - 3852RP

27vs. ) 11 - 3853RP

32) 11 - 3854RP

36DEPARTMENT OF CORRECTIONS, )

40)

41Respondent. )

43)

44FINAL ORDER OF DISMISSAL

48This matter came before the undersigned on RespondentÓs

56Motion to Dismiss Rule Challenge Petitions for Lack of Standing.

66The petitions and amended petition seeking an administrative

74deter mination of the invalidity of Proposed Rule 33 - 601.731 are

86dismissed, as they contain insufficient factual allegations to

94establish PetitionersÓ standing to bring the rule challenges.

102PRELIMINARY STATEMENT

104Petitioners Albert Figueroa, Jaylin Figueroa, an d Martin L.

113Glick filed separate rule challenges to proposed amendments to

122Florida Administrative Code Rule 33 - 601.731 on August 1, 2011.

133The rule amendments would change the circumstances under which

142visiting privileges may be suspended in the state corr ections

152system. The challenges were consolidated and hearing was set

161for August 26, 2011. On August 19, 2011, Respondent filed a

172Motion to Dismiss for lack of standing. Petitioners Albert

181Figueroa and Jaylin Figueroa did not participate in the August

19126 th hearing, either in person or through counsel. Petitioner

201Glick did not attend the hearing, but filed a Motion for

212Extension on that date requesting additional time to prepare and

222to seek assistance of counsel. Orders granting continuance and

231setting a telephonic hearing for September 15, 2011, on the

241Motion to Dismiss were issued on August 26, 2011.

250Petitioner Glick filed an Amended Petition Seeking an

258Administrative Determination of the Invalidity of Proposed Rule

266F.A.C. 33 - 601.731 on September 12, 20 11. The Amended Petition

278added additional language related to standing, as set forth

287below, and added a statement that provisions suspending visiting

296privileges based upon conduct of the visitor provided no process

306or guidelines to allow for those privile ges to be reinstated.

317Petitioner Glick and Respondent Department of Corrections

324participated in the telephonic hearing on the M otion to D ismiss

336held on September 15, 2011, but Petitioners Albert Figueroa and

346Jaylin Figueroa again did not participate. At the hearing,

355Respondent did not object to Petitioner GlickÓs Amended

363Petition. The undersigned finds no prejudice to the Respondent

372and hereby accepts the Amended Petition.

378In its Motion to Dismiss filed August 19, 2011 , Respondent

388asserts that t he petitions do not meet either prong of the two -

402part standing test developed in applicable case law, and moves

412for the entry of a final order dismissing the petitions.

422FINDINGS OF FACT

425For purposes of the Motion, the following allegations

433contained in t he petitions are accepted as true:

4421. Albert Figueroa is an approved visitor for a n i nmat e in

456the custody of the Florida Department of Corrections .

4652. Albert Figueroa regularly visit s a n i nmat e under the

478custody of the F lorida Department of Corrections.

4863. Jaylin Figueroa has a brother in the custody of the

497Florida Department of Corrections.

5014. Jaylin Figueroa regularly vis i ts with this brother.

5115. Martin Glick is on the F lorida D epartment of

522Corrections approved visitor list for a n i nmat e in its custo dy.

5366. Imposition of visitation restrictions upon a n inmate ,

545including indefinite suspension of these privileges, w ould

553affect the Petitioner s Ó visit ation of that inmate .

564CONCLUSIONS OF LAW

5677 . The Di vision of Administrative Hearings has

576jurisdiction o ver the parties and subject matter of this

586proceeding. §§ 120.56(1) and (2), 120.569(1), and 120.57(1),

594Fla. Stat. (2011).

5978 . In considering a Motion to Dismiss, the trier of fact

609accepts the factual allegations of the petition as true and

619considers th e allegations in the light most favorable to the

630nonmoving party. Florida Bar v. Greene , 926 So. 2d 1195 (Fla.

6412006).

6429 . Section 120.56(1)(b) requires a rule challenge petition

651to state with particularity facts sufficient to show that the

661person challeng ing a proposed rule would be substantially

670affected by it.

67310 . In order to meet the substantially affected test, a

684Petitioner must establish: (1) that the Petitioner would suffer

693a real and sufficiently immediate injury in fact; and (2) that

704the alleged interest is within the zone of interest to be

715protected or regulated. Lanoue v. Fl a. DepÓt of Law Enf . , 751

728So. 2d 94 (Fla. 1st DCA 1999).

73511 . In order to constitute a real and immediate injury in

747fact, "the injury must not be based on pure speculatio n or

759conjecture." See Ward v. Bd . of Tr s. of the Int . Imp . Trust

775Fund , 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995).

78512 . In Florida Department of Offender Rehabilitation v.

794Jerry , 353 So. 2d 1230 (Fla. 1st DCA 1978), the court held that

807Jerry, who had com pleted his disciplinary confinement imposed

816under a rule, no longer had standing to challenge that rule

827because there was no immediate injury unless and until it was

838again applied to him. The court was unwilling to presume that

849Jerry would commit another assault or engage in other misconduct

859while in custody that would result in application of the rule

870once again, even though he was at all times subject to the rule.

883Later cases have followed th e Jerry rationale . See , e.g. , Dep Ó t

897of Corr . v. Van Poyck , 61 0 So. 2d 1333 (Fla. 1st DCA 1992) rev .

914den ., 620 So. 2d 763 (Fla. 1993).

92213. T he injury to Petitioners here is equally speculative ,

932is not immediate , and is governed by Jerry . The effectiveness

943of the rule itself would create no injury to Petitioners u nless

955and until the inmate they seek to visit commits a Ðmajor

966violationÑ subjecting him to suspension of visiting privileges.

974Such possible injury at some later date does not meet the

985Ðimmediate injuryÑ prong of the standing test. See also Burns

995v. Dep Ó t . of Corr . , Case No. 97 - 4538RP (Fla. DOAH Dec. 8, 1997)

1013(final order of dismissal issued where allegations contained in

1022the original petition and amended petition failed to establish

1031petitioner's standing to challenge existing rule and proposed

1039amendment to rule).

104214 . As to the second prong of the standing test, "the

1054general rule regarding the zone of interest element of the

1064substantially affected test is that such element is met where a

1075party asserts that a statute, or a rule implementing such

1085statute, encroaches upon an interest protected by a statute or

1095in the constitution." Ward , supra at 1238. In applying the zone

1106of interest test, analysis centers on whether the legislation

1115being implemented by the agency was intended to protect that

1125partyÓs intere st.

112815 . Careful review of the statutes being implemented by

1138the proposed amendments to r ule 33 - 601.731 reveals some passing

1150concerns with the interests of visitors, but in context these

1160are clearly subsidiary to the primary interests in reducing

1169recidiv ism and providing incentives to modify inmate behavior.

117816. While section 944.23, Florida Statutes (2011), refers

1186to rights of certain elected officials and others concerned with

1196the operation of the state corrections system to visit ation , and

1207section 9 44.09 refers to rights of children in special

1217visitation situations involving inmates with convictions for

1224certain sex offenses, nothing in the pleadings asserts either of

1234these interests , and Petitioners have not established standing

1242under either of these provisions. Further, there was no

1251suggestion at the hearing that such interests were involved,

1260even if the petitions were to be amended further.

126917 . The statutory authority of the Department of

1278Corrections in developing its visitation rules is substan tially

1287predicated upon its responsibilities to modify inmate behavior,

1295control contraband, and reduce recidivism.

13001 8. The asserted injur ies to PetitionersÓ visitation

1309privileges resulting from the rule, taken as true, do not fall

1320within the zone of inte rest protected by the laws governing the

1332state correctional system.

1335CONCLUSION

1336The allegations contained in the Petitions and the Amended

1345Petition, taken as true, are insufficient to satisfy either

1354prong of the "substantially affected" test. Petitio ners

1362therefore lack standing to challenge the proposed amendments to

1371Florida Administrative Code Rule 33 - 601.731, and this case must

1382be dismissed.

1384It is , therefore ,

1387ORDERED:

13881. RespondentÓs Motion to Dismiss Rule Challenge Petitions

1396for Lack of Sta nding is GRANTED.

14032. The Petition Seeking an Administrative Determination of

1411the Invalidity of Proposed Rule 33 - 601.731 filed by Petitioner

1422Albert Figueroa, the Petition Seeking an Administrative

1429Determination of the Invalidity of Proposed Rule 33 - 601.73 1

1440filed by Petitioner Jaylin Figueroa, and the Petition Seeking an

1450Administrative Determination of the Invalidity of Proposed Rule

1458F.A.C. 33 - 601.731 filed by Petitioner Martin L. Glick as amended

1470on September 12, 2011, are DISMISSED.

1476DONE AND ORDERED thi s 22nd day of September , 2011 , in

1487Tallahassee, Leon County, Florida.

1491S

1492F. SCOTT BOYD

1495Administrative Law Judge

1498Division of Administrative Hearings

1502The DeSoto Building

15051230 Apalachee Parkway

1508Tallahassee, Florida 32399 - 306 0

1514(850) 488 - 9675

1518Fax Filing (850) 921 - 6847

1524www.doah.state.fl.us

1525Filed with the Clerk of the

1531Division of Administrative Hearings

1535t his 22nd day of September, 2011 .

1543COPIES FURNISHED:

1545Albert Figueroa

1547Post Office Box 235

1551Sparr, Florida 32192 - 0235

1556Jaylin F igueroa

1559Post Office Box 235

1563Sparr, Florida 32192 - 0235

1568Martin L. Glick

15716735 15th Street North

1575St. Petersburg, Florida 33702

1579Deborah B. Loucks, Esquire

1583Michael Todd Flury, Esquire

1587Dror Lewy, Esquire

1590Office of the Attorney General

1595The Capitol, Plaza Level 01

1600Tallahassee, Florida 32399

1603Liz Cloud, Program Administrator

1607Administrative Code

1609Department of State

1612R. A. Gray Building, Suite 101

1618Tallahassee, Florida 32399

1621Jesslyn Krouskroup, Acting Coordinator

1625Joint Administrative Procedures Committee

1629Room 6 80, Pepper Building

1634111 West Madison Street

1638Tallahassee, Florida 32399 - 1400

1643Ken Tucker, Secretary

1646Department of Corrections

1649Office of General Counsel

1653501 South Calhoun Street

1657Tallahassee, Florida 32399 - 2500

1662Kendra Jowers, Assistant General Counsel

1667Depa rtment of Corrections

1671Office of General Counsel

1675501 South Calhoun Street

1679Tallahassee, Florida 32399 - 2500

1684NOTICE OF RIGHT TO JUDICIAL REVIEW

1690A party who is adversely affected by this Final Order is

1701entitled to judicial review pursuant to Section 120.68, Florida

1710Statutes. Review proceedings are governed by the Florida Rules

1719of Appellate Procedure. Such proceedings are commenced by

1727filing one copy of a Notice of Administrative Appeal with the

1738agency clerk of the Division of Administrative Hearings and a

1748s econd copy, accompanied by filing fees prescribed by law, with

1759the District Court of Appeal, First District, or with the

1769District Court of Appeal in the appellate district where the

1779party resides. The Notice of Administrative Appeal must be

1788filed within 3 0 days of rendition of the order to be reviewed.

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PDF
Date
Proceedings
PDF:
Date: 09/22/2011
Proceedings: DOAH Final Order
PDF:
Date: 09/22/2011
Proceedings: Final Order Order of Dismissal. CASE CLOSED.
Date: 09/15/2011
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 09/13/2011
Proceedings: Status Report filed.
PDF:
Date: 09/12/2011
Proceedings: Amended Petition Seeking an Administrativee Determination of the Invalidity of Proposed Rule F.A.C.,33-601.731 filed.
Date: 08/26/2011
Proceedings: CASE STATUS: Motion Hearing Partially Held; continued to September 15, 2011; 9:30 a.m.; Tallahassee, FL.
PDF:
Date: 08/26/2011
Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for September 15, 2011; 9:30 a.m.).
PDF:
Date: 08/26/2011
Proceedings: Order Granting Continuance (parties to advise status by September 13, 2011).
PDF:
Date: 08/26/2011
Proceedings: Notice of Filing Corrected Respondent's Motion to Dismiss Rule Challenge for Lack of Standing filed.
PDF:
Date: 08/26/2011
Proceedings: Petitioners Motion for Extension of Time filed.
PDF:
Date: 08/25/2011
Proceedings: Respondent's Unilateral Pre-hearing Statement filed.
PDF:
Date: 08/19/2011
Proceedings: Respondent's Motion to Dismiss Rule Challenge Petitions for Lack of Standing filed.
PDF:
Date: 08/09/2011
Proceedings: Notice of Appearance (Michael Flury) (filed in Case No. 11-003854RP).
PDF:
Date: 08/09/2011
Proceedings: Notice of Appearance (Michael Flury) (filed in Case No. 11-003853RP).
PDF:
Date: 08/09/2011
Proceedings: Notice of Appearance (Deborah Loucks, and Dror Lewy) filed.
PDF:
Date: 08/09/2011
Proceedings: Notice of Appearance (Michael Flury) filed.
PDF:
Date: 08/03/2011
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/03/2011
Proceedings: Notice of Hearing (hearing set for August 26, 2011; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 08/03/2011
Proceedings: Order of Consolidation (DOAH Case Nos. 11-3852RP, 11-3853RP, and 11-3854RP).
PDF:
Date: 08/02/2011
Proceedings: Order of Assignment.
PDF:
Date: 08/01/2011
Proceedings: Rule Challenge transmittal letter to Liz Cloud from Claudia Llado copying Jesslyn Krouskroup and the Agency General Counsel.
PDF:
Date: 08/01/2011
Proceedings: Petition Seeking an Administrative Determination of the Invalidity of Proposed Rule 33-601.731 filed.

Case Information

Judge:
F. SCOTT BOYD
Date Filed:
08/01/2011
Date Assignment:
08/02/2011
Last Docket Entry:
09/22/2011
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Corrections
Suffix:
RP
 

Counsels

Related Florida Statute(s) (7):