11-003854RP Martin L. Glick vs. Department Of Corrections Status: Closed DOAH Final Order on Thursday, September 22, 2011.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERT FIGUEROA, JAYLIN )

FIGUEROA, AND MARTIN L. GLICK, )

)

Petitioners, )

) Case Nos. 11 - 3852RP

vs. ) 11 - 3853RP

) 11 - 3854RP

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

This matter came before the undersigned on RespondentÓs

Motion to Dismiss Rule Challenge Petitions for Lack of Standing.

The petitions and amended petition seeking an administrative

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

dismissed, as they contain insufficient factual allegations to

establish PetitionersÓ standing to bring the rule challenges.

PRELIMINARY STATEMENT

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

Glick filed separate rule challenges to proposed amendments to

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

The rule amendments would change the circumstances under which

visiting privileges may be suspended in the state corr ections

system. The challenges were consolidated and hearing was set

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

Motion to Dismiss for lack of standing. Petitioners Albert

Figueroa and Jaylin Figueroa did not participate in the August

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

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

Extension on that date requesting additional time to prepare and

to seek assistance of counsel. Orders granting continuance and

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

Motion to Dismiss were issued on August 26, 2011.

Petitioner Glick filed an Amended Petition Seeking an

Administrative Determination of the Invalidity of Proposed Rule

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

added additional language related to standing, as set forth

below, and added a statement that provisions suspending visiting

privileges based upon conduct of the visitor provided no process

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

Petitioner Glick and Respondent Department of Corrections

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

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

Jaylin Figueroa again did not participate. At the hearing,

Respondent did not object to Petitioner GlickÓs Amended

Petition. The undersigned finds no prejudice to the Respondent

and hereby accepts the Amended Petition.

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

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

part standing test developed in applicable case law, and moves

for the entry of a final order dismissing the petitions.

FINDINGS OF FACT

For purposes of the Motion, the following allegations

contained in t he petitions are accepted as true:

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

the custody of the Florida Department of Corrections .

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

custody of the F lorida Department of Corrections.

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

Florida Department of Corrections.

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

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

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

6. Imposition of visitation restrictions upon a n inmate ,

including indefinite suspension of these privileges, w ould

affect the Petitioner s Ó visit ation of that inmate .

CONCLUSIONS OF LAW

7 . The Di vision of Administrative Hearings has

jurisdiction o ver the parties and subject matter of this

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

Fla. Stat. (2011).

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

accepts the factual allegations of the petition as true and

considers th e allegations in the light most favorable to the

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

2006).

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

to state with particularity facts sufficient to show that the

person challeng ing a proposed rule would be substantially

affected by it.

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

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

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

the alleged interest is within the zone of interest to be

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

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

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

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

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

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

12 . In Florida Department of Offender Rehabilitation v.

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

Jerry, who had com pleted his disciplinary confinement imposed

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

because there was no immediate injury unless and until it was

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

Jerry would commit another assault or engage in other misconduct

while in custody that would result in application of the rule

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

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

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

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

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

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

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

and until the inmate they seek to visit commits a Ðmajor

violationÑ subjecting him to suspension of visiting privileges.

Such possible injury at some later date does not meet the

Ðimmediate injuryÑ prong of the standing test. See also Burns

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

(final order of dismissal issued where allegations contained in

the original petition and amended petition failed to establish

petitioner's standing to challenge existing rule and proposed

amendment to rule).

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

general rule regarding the zone of interest element of the

substantially affected test is that such element is met where a

party asserts that a statute, or a rule implementing such

statute, encroaches upon an interest protected by a statute or

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

of interest test, analysis centers on whether the legislation

being implemented by the agency was intended to protect that

partyÓs intere st.

15 . Careful review of the statutes being implemented by

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

concerns with the interests of visitors, but in context these

are clearly subsidiary to the primary interests in reducing

recidiv ism and providing incentives to modify inmate behavior.

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

to rights of certain elected officials and others concerned with

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

section 9 44.09 refers to rights of children in special

visitation situations involving inmates with convictions for

certain sex offenses, nothing in the pleadings asserts either of

these interests , and Petitioners have not established standing

under either of these provisions. Further, there was no

suggestion at the hearing that such interests were involved,

even if the petitions were to be amended further.

17 . The statutory authority of the Department of

Corrections in developing its visitation rules is substan tially

predicated upon its responsibilities to modify inmate behavior,

control contraband, and reduce recidivism.

1 8. The asserted injur ies to PetitionersÓ visitation

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

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

state correctional system.

CONCLUSION

The allegations contained in the Petitions and the Amended

Petition, taken as true, are insufficient to satisfy either

prong of the "substantially affected" test. Petitio ners

therefore lack standing to challenge the proposed amendments to

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

be dismissed.

It is , therefore ,

ORDERED:

1. RespondentÓs Motion to Dismiss Rule Challenge Petitions

for Lack of Sta nding is GRANTED.

2. The Petition Seeking an Administrative Determination of

the Invalidity of Proposed Rule 33 - 601.731 filed by Petitioner

Albert Figueroa, the Petition Seeking an Administrative

Determination of the Invalidity of Proposed Rule 33 - 601.73 1

filed by Petitioner Jaylin Figueroa, and the Petition Seeking an

Administrative Determination of the Invalidity of Proposed Rule

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

on September 12, 2011, are DISMISSED.

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

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 306 0

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 22nd day of September, 2011 .

COPIES FURNISHED:

Albert Figueroa

Post Office Box 235

Sparr, Florida 32192 - 0235

Jaylin F igueroa

Post Office Box 235

Sparr, Florida 32192 - 0235

Martin L. Glick

6735 15th Street North

St. Petersburg, Florida 33702

Deborah B. Loucks, Esquire

Michael Todd Flury, Esquire

Dror Lewy, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

Jesslyn Krouskroup, Acting Coordinator

Joint Administrative Procedures Committee

Room 6 80, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

Ken Tucker, Secretary

Department of Corrections

Office of General Counsel

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

Kendra Jowers, Assistant General Counsel

Depa rtment of Corrections

Office of General Counsel

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

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 Administrative Appeal with the

agency clerk of the Division of Administrative Hearings and a

s econd 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 Administrative Appeal must be

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