11-003853RP
Jaylin Figueroa vs.
Department Of Corrections
Status: Closed
DOAH Final Order on Thursday, September 22, 2011.
DOAH Final Order on Thursday, September 22, 2011.
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.
- Date
- Proceedings
- Date: 09/15/2011
- Proceedings: CASE STATUS: Motion Hearing Held.
- 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: 08/19/2011
- 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: 08/03/2011
- 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).
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
-
Jaylin Figueroa
Address of Record -
Michael Todd Flury, Esquire
Address of Record -
Jennifer Parker, General Counsel
Address of Record