11-004166RX Helen Peek vs. Florida Parole Commission Status: Closed DOAH Final Order on Wednesday, September 7, 2011.

Summary: Challenge of existing rule dismissed where allegations contained in Petition and Amended Petition failed to establish Petitioner's standing to initiate proceeding.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELEN PEEK , )

)

Petitioner, )

)

vs. ) Case No. 11 - 4166RX

)

FLORIDA PAROLE COMMISSION , )

)

Respondent. )

_________________________________)

FINAL ORDER OF DISMISSAL

This matter came befor e the undersigned on Petitioner's

" A mended Petition Requesting Rulemaking Challenge of Ru le 23 -

21.0155 Fla. Admin. Code," filed September 1, 2011. For the

reasons detailed below, the Amended Petition must be dismissed,

as it contains insufficient factual alle gations to establish

Petitioner' s standing to bring the instant challenge.

I. Background

Petitioner initiated this proceeding on August 16, 2011,

with the filing of her "Petition Requesting Rule Challenge of

Rule 23 - 21.0 1 55 Fla. Admin. Code." The gravam en of the Petition

is that Flo rida Administrative Code Rule 23 - 21.0155 ÏÏ which

provides that if the Parole Commission declines to authorize the

e ffective parole release date of an inmate referred for

extraordinary review, the Commission must suspend the

established presumptive parole re lease date until the inmate is

found to be a good candidate for parole r elease ÏÏ constitutes an

invalid exercise of de legated legislative authority.

In an apparent effort to establish standing to bring this

chal lenge, Petitioner merely asserted in her ori ginal Petition

that the rule is causing "a class of inmates to be illegally

detained in the Florida Department of Corrections

indefinitely . . . at great expense to [her ] as a tax paying

resident in the State of Florida." Significa ntly, Petitioner

did n ot contend that she has ever been an inmate in the Florida

D epartment Corrections, nor did she allege any other facts that

would tend to show that she possesses standing to initiate this

proceeding.

On August 23, 2011, the undersigned entered an Order to

Show Cause, 1 which obser ved, quoting the First District' s opinion

in Abbott Laboratories v. Mylan Pharmaceuticals, Inc. , 15 So. 3d

642, 651 n.2 (Fla. 1st DCA 2009), that " standing in the

administrative context is a matter of subject matter

jurisdiction and cannot be conferred by consent of the part ies. "

The undersigned further noted, again citing Abbott , that where a

petitioner lacks standing to initiate a rule challenge, an order

on the merits by an Administrative Law Judge would constitute a

nullity. The Order to Show cause concluded by providing:

Petitioner' s bare allegation that the

challenged rule ÏÏ which deals with the Parole

Commission's handling of inmates referred

for parole release ÏÏ generally impacts her as

a taxpaying Florida resident appears

insufficient to satisfy the "substantially

affected" standard. Accordingly, it is

ORDERED that Petitioner shall show cause no

later than September 1, 2011, why her

Petition should not be dismissed for failure

to allege facts sufficient to establish her

standing as a person "substantially

affected" by Rule 23 - 21.0155. In the

alternative, Petitioner shall file an

amended petition by the same date that

includes sufficient factual allegations of

standing.

Subsequently, on Septemb er 1, 2011, Petitioner responded to

the Order of Show Cause by filing an " Amended Petition

Requesting Rulemaking Challenge of Ru le 23 - 21.0155 Fla. Admin.

Code." With respect to the issue of standing, the Amended

Petition alleges, in relevant part:

Petitioner avers here in the a ffirmative,

that Rule 23 - 21.0155 has, and continues to

annually cause an ongoing prima facie direct

injury in fact to Petitioner as a Florida

taxpayer, and to all taxpaying Floridians

whereas:

1. The rule illegally gives the Commission

the undelegated le gislative authority to

suspend parole eligible inmates [sic] parole

dates indefinitely, contrary to the

provisions of s. 947.18, F.S., the law

implemented.

2. The rule factually costs the Petitioner

as a taxpayer, and all Floridian taxpayers

collectively , a basic annual cost to the

Corrections budget at approximately

$20,000.00 annually per inmate per year,

multiplied by approximately 500 similarly

situated parole eligible inmates, whose

parole dates are presently suspended, which

amounts to approximately $10,000,000.00

dollars a year. This conservative number in

annual costs to Petitioner as a taxpayer of

the Corrections budget, does not include the

cost of medical expenses that are associated

with the aging segment of parole eligible

inmates with suspen ded parole dates . . . .

* * *

3. Petitioner contends . . . that the

substantial affect [sic] of this segment of

parole eligible inmates . . . whose parole

status . . . has been illegally suspended

indefinitely pursuant to Rule 23 - 21.0155

(which the Pe titioner duly challenges here

as invalid, pursuant to the provisions of s.

120.52(8) F.S., where it was not amended in

2006 pursuant to the provisions of s.

120.536(1) and 120.54(3)(a)1. F.S.), clearly

demo nstrates with record evidence, " a direct

injury in fact," of sufficient reality to

the Petitioner as a taxpayer, which is not

based on speculation or conjecture, and

which clearly satisfys [sic] and meets the

substantially affected test for PetitionerÓs

standing to challenge rule 23 - 21.0155 as

unauthorize d and as an invalid exercise of

delegated legislative authority.

* * *

Petitioner further avers in the affirmative,

that she is cle arly affected by the

Commission' s 2006 amendment of Rule 23 -

21.0155, and Petitioner' s specific (interest

injured) by the C ommission' s invalid rule

challenged h erein, is therefore within the

" zo ne of interest to be protected," where

the rule improperly cites s. 947.18 F.S. as

the law implemen ted, encroaches upon

Petitioner' s zone of interest, where the

commission failed to com ply with the

essential requirements of the non -

discretional rulemaking procedures . . . .

(Pet. Amended Petition, pp. 3 - 5).

II. Analysis

Standing to challenge proposed or existing administrative

rules is governed by section 120.56(1)(a), Florida Stat utes ,

which provides that "any person substantially affected by a rule

or a proposed rule may seek an administrative determination of

the invalidity of the rule on the ground that the rule is an

invalid exercise of delegated legislative authority." In ord er

to meet the substantially affected test, a petitioner must

establish: (1) a real and sufficiently immediate injury in fact;

and (2) that the alleged interest is arguably within the zone of

interest to be protected or regulated. Lanoue v. Fla. Dep't of

Law Enf. , 751 So. 2d 94, 96 (Fla. 1st DCA 1999). To satisfy the

real and immed iate injury in fact element, " the injury must not

be based on pure speculation or conjecture." Ward v. Bd. of

Trs. of the Int. Impust Fund , 651 So. 2d 1236, 1237 (Fla.

4th DCA 1995). 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, encr oaches upon an interest protected by a statute or

in the constitution." Id. at 1238.

In light of Petitioner' s atte mpt to ut ilize her status as a

"Florida t axpayer" to establish standing, a useful application

of the substantially affected sta ndard is provided by Hilliard

v. Department of Transportation , Case No. 97 - 971 RP, 1998 Fla.

Div. Adm. Hear. LEXIS 5448 (Fla. DOAH Apr. 3, 1998), aff 'd , 728

So. 2d 209 (Fla. 1st DCA Dec. 22, 1998)(table decision) . In

Hilliard , several p etitione rs, based up on their status as

"Florida taxpayers," attempted to challen ge proposed rules

relating to nonconforming outdoor advertising signs. The

Administrative Law Judge dism issed the rule challenge,

concluding that neither p etitioner had demonstrate d a real and

su fficiently immediate injury in fact or that their alleged

interests were arguably within the zone of interest to be

regulated :

Both Petitioners asserted standing based on

each being a Florida taxpayer . . . .

Neither Petitioner owns an y outdoor

advertising signs. Nor do they own any land

upon which such signs are located . . .

Petitioners like all motorist s in Florida,

simply drive down roads on which these signs

may be located. Neither Petitioner is

significantly impacted by these proposed

rules or impac ted differently than the

general population . . . .

* * *

The record in this case demonstrates that

neither Petitioner's interest in outdoor

advertising signs is significantly different

from the interests of the general

population . Similarly, neither P etitioner

demonstrates any sufficiently immediate

impact on them different from the general

population . . . . Therefore the Petitions

. . . should be dismissed.

Id. at *7 - 10 (emphasis added); see also Fla. Soc'y of

Ophthalmology v. State Bd. of Optometry , 532 So. 2d 1279, 1284

(Fla. 1st DCA 1988)("We initially observe that not everyone

having an interest in the outcome of a particular dispute . . .

is entitled to participate as a party in an administrative

proceeding to resolve that dispute. We re that not so, each

interested citizen could, merely by expressing an interest,

participate in the agency's efforts to govern, a result t hat

would unquestionably impede the ability of the agency to

function efficiently and inevitably cause an increase in the

number of litigated disputes . . . . ").

Although the undersigned has been unable to locate any

Florida appellate decision s addressing a taxpayer' s standing to

challenge a proposed or existing rule (where the taxpayer is no

differently affected than a member of the general population),

it is well - settled in ot her jurisdictions that " a petitioner

making a general attack on . . . administrative action or

inaction must demonstrate special damages distinct from that

s uffered by the public at large." Matte r of Abrams v. New York

City Transit Auth . , 368 N.Y.S.2d 165, 166 (N.Y. App. Div. 1975 );

Lesczynski v. Bloomberg , 2005 N.Y. Misc. LEXIS 3532 , *5 - 6 (N.Y.

Gen. Term 2005) (granting m otion to dismiss where taxpayer' s

allegations failed to establish an injury i n fact or that the

injury fell within the zone of interests protecte d; " [A]ny tax

consequences from the act is an injury suffer ed by all

taxpayers, not just by Lesczynski. A private citizen who does

not show any special rights or interests in the matter i n

controversy, other than those common to all taxpayers and

citizens , has no standing to sue" )(internal quotation and

citation omitted); Allan v. Univ. of Wash. , 959 P.2d 1184, 1186 -

87 (Wash. Ct. App. 1998)(holding petitioner , the wife of a

University of W ashington professor, lacked standing to cha llenge

amendments to university' s administrative rules, where

petitioner could not demonstrate the injury in fact or zone of

interest prongs o f the adversely affected test; " We agree with

the University that in pa ssing the APA, the Legislature did not

confer standing on simply anyone who is dissatisfied with the

outcome of the rule - maki ng process . . . . [Petitioner' s]

claimed i njury stems from the University' s failure to comply

with the APA rule - making procedures. Failure to comply with the

procedural requirements, however, is not a sufficient injury to

confer standing . . . . [Petitioner's] relationships with

others, who may or may not have standing, do not confer standing

upon her . . . . Rather [petitioner's] i nterest is merely one

that she holds in common with all other citizens" )(internal

citations omitted); see also Lujan v. Defenders of Wildlife , 504

U.S. 555, 560, 573 - 74 (1992)(holding plaintiffs failed to

demonstrate injury in fact necessary for st anding; " We have

consistently held that a plaintiff raising only a generally

available grievance about government ÏÏ claiming only harm to his

and every citizen ' s interest in the application of the

Constitution and laws, and seeking relief that no more directly

and tangibly benefits him than it does the public at large ÏÏ does

not state an A rticle III case or controversy." ) .

Applying the foregoing authority to the instant case, the

allegations contained in the Amended Petition, taken as true,

are insufficient to satisfy either prong of the "substantially

affected" test. Simply pu t, Petitioner fails to allege how the

financial effects of the challenged rule impact her differently

than any other Florida taxpayer, nor does she explain how h er

interest in addressing the rule's p rocedural infirmities ÏÏ as

described in the Amended Petition ÏÏ is any different than the

interest she holds in common with all other citizens. See

Hilliard , 1998 Fla. Div. Adm. Hear. LEXIS 5448 at *10; Alla n ,

959 P.2d at 1186 - 87; Lesczynski , 20 05 N.Y. Misc. LEXIS 3532 at

*5 - 6; Abrams , 368 N.Y.S.2d at 166 . Accordingly, Petitioner

lacks standing to challenge Florida Administrative Code Rule 23 -

21.0155, and the instant proceeding must be dismissed. See

Burns v. Dep't of Corr. , Case No. 97 - 4538RP, 1997 Fla. Div. Adm.

Hear. LEXIS 5705 (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 amend ment to

rule). 2

III. Conclusion

For the reasons detailed above, it is ORDERED:

1. The "Petition Requesting Rule Challenge of Rule 23 -

21.0155 Fla. Admin . Code" and the "Amended Petition Requesting

Rulemaking Challenge of R ule 23 - 21.0155 Fla. Admin. Cod e" are

DISMISSED.

2. The final hearing scheduled for September 9, 2011, is

cancelled.

DONE AND ORDERED this 7th day of September , 20 11 , in

Tallahassee, Leon County, Florida.

S

___________________ ________________

Edward T. Bauer

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of September , 20 1 1 .

ENDNOTE S

1 On the same date, Respondent file d a Motion to Dismiss on the

grounds that Petitioner's status as a taxpayer "does not give

her standing to challenge a rule applicable only to parole -

eligible inmates." (Resp. Mot. to Dismiss at 1).

2 Immediately prior to the issuance of this Final Or der of

Dismissal, the parties filed a Pre - Hearing Joint Stipulation,

the contents of which establish that Petitioner is the wife of a

parole eligible inmate. However, as this fact was not alleged

in either of the petitions, it will not be considered by th e

undersigned. See § 120.56(1)(b), Fla. Stat. (2010)(requiring

petitioner to state "with particularity" facts sufficient to

demonstrate standing). In any event, Petitioner's status as the

spouse of a parole eligible inmate does not provide her with

stand ing. See Allan , 959 P.2d at 1187 ("[Petitioner's]

relationships with others, who may or may not have standing, do

not confer standing upon her . "). Further, to permit Petitioner

to litigate the validity of the challenged rule in her husband's

stead would undermine section 120.81(3), Florida Statutes, which

prohibits inmates from initiating rule challenges. See Burns v.

Dep't of Corr. , Case No. 97 - 4538RP, 1997 Fla. Div. Adm. Hear.

LEXIS 5705 (Fla. DOAH Dec. 8, 1997)(issuing final order of

dismissal where p etitioner, the spouse of an inmate, lacked

standing to challenge an existing rule governing prison

visitation; concluding that to allow petitioner to challenge the

rule in the place of her husband would circumvent section

120.81(3)); see also Tungate v. Fl orida Dep't of Corr. , 742 So.

2d 803, 803 - 04 (Fla. 1st DCA 1998)(holding that pursuant to

section 120.82(3), inmate lacked standing to challenge the

adoption of Florida Administrative Code Rule 33 - 3.0055); Green

v. Dep't of Corr. , Case No. 02 - 4723RP, 2003 Fla. Div. Adm. Hear.

LEXIS 1064 (Fla. DOAH May 23, 2003)(noting that "prisoners do

not have a right to file a rule challenge pursuant to section

120.56").

COPIES FURNISHED :

Helen Peek

1808 Southwest 67th Terrace

Gainesville, Florida 32607

Sarah J . Rumph, Esquire

Florida Parole Commission

4070 Esplanade Way

Tallahassee, Florida 32399

Jesslyn Krouskroup, Esquire

Acting Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 3239 9 - 1400

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. S uch proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, First District, or with the Distric t 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.