12-001503RX Helen Peek vs. Florida Parole Commission Status: Closed DOAH Final Order on Thursday, May 17, 2012.

Summary: Petitioner, the wife of an inmate, did not have standing to challenge a rule regarding the establishment of an inmate parole date, and was precluded from bringing such a challenge as a surrogate for an inmate pursuant to section 120.81(3).

STATEMENT OF THE ISSUE

Whether Petitioner, the spouse of an inmate of the Florida

correctional system, has standing to challenge Florida

Administrative Code Rule 23 - 21.0155, which provides that if the

Commission declines to authorize the effective parole release

date of an inmate referred for extraordinary review, the

Commi ssion must suspend the established presumptive parole

release date until the inmate is found to be a good candidate

for parole release.

PRELIMINARY STATEMENT

On April 19, 2012, Petitioner filed a Petition Requesting

Rule Challenge of Florida Administrativ e Code Rule 23 - 21.0155.

The basis for standing alleged by Petitioner is that the

CommissionÓs adoption and application of the rule has infringed

upon her marital right to intimate association and cohabitation

with her husband.

On April 24, 2012, the Commi ssion filed a Motion to

Dismiss, seeking dismissal of this proceeding on three grounds.

The grounds asserted were:

a) that Petitioner previously challenged r ule 23 -

21.0155 in DOAH Case 11 - 4166RX, and unsuccessfully alleged

standing in that case as a tax payer of the S tate of Florida,

based on the cost of continuing to house inmates that had

reached their established parole date but were determined to be

ineligible for parole;

b) that PetitionerÓs marriage to an inmate is

insufficient to confer standing to challenge a rule pertaining

to the release date of an inmate; and

c) that s ection 120.81, Florida Statutes, precludes a

challenge of the type at issue here.

On April 26, 2012, the undersigned entered an Order to Show

Cause requiring Petitioner to exp lain how her expectation of

having her husband live with her was sufficient to confer

standing on her to challenge the rule, and why s ect ion 120.81(3)

did not serve to prevent her, as a surrogate of the person

directly affected by the rule, from challengin g the rule. The

Order to Show Cause required a response by May 7, 2012.

On May 3, 2012, Petitioner filed a Motion for Extension of

Time to File Response to Show Cause Order, in which she requested

an extension to allow the response to be filed on or be fore

May 14, 2012. The Motion was granted.

On May 11, 2012, Petitioner filed her Response to Show Cause

Order.

The undersigned has carefully reviewed the Petition, the

Motion to Dismiss, the Response to Show Cause Order, the cases

cited therein, and th e file of this proceeding. The facts

alleged by Petitioner have been accepted as true, and the

undersigned has applied every reasonable inference in

PetitionerÓs favor. Curd v. Mosaic Fertilizer, LLC , 39 So. 3d

1216, 1222 (Fla. 2010) ; Fla. Bar v. Greene , 926 So. 2d 1195, 1199

(Fla. 2006); Dep't of HRS v. S.A.P. , 835 So. 2d 1091, 1094 (Fla.

2002); Ralph v. City of Daytona Beach , 471 So. 2d 1, 2 (Fla.

1983).

FINDINGS OF FACT

1. On October 10, 1995, Petitioner married Anthony Ray

Peek, an inmate housed in a Department of Corrections facility.

Mr. Peek is serving a parole - eligible sentence pursuant to

chapter 987, Florida Statutes.

2. On September 1, 2010, Petitioner appeared and spoke at

a Commission hearing convened to determine whether to authorize

Mr. PeekÓs presumptive parole date of September 29, 2010. By

order dated September 2, 2010, the Commission decided not to

authorize Mr. PeekÓs presumptive parole date, and referred the

case for extraordinary review pursuant to r ule 23 - 21.0155.

3. On Novembe r 9, 2010, the Commission entered an order by

which it determined that it would not authorize an effective

parole date for Mr. Peek, that his presumptive parole release

date remained suspended, and established May, 2017, as the date

for Mr. PeekÓs next ext raordinary review interview. The

CommissionÓs action applied the standards for placing an inmate

on parole established in s ection 947.18, Florida Statutes. In

taking its action, the Commission utilized the procedures for

extraordinary review established in rule 23 - 21.0155, which

provides, in its entirety, that:

23 - 21.0155 Extraordinary Review Procedures.

(1) When an inmateÓs case is referred for

extraordinary review by the Commission, an

order shall be prepared outlining the

reason(s) for the Commission Ós decision.

The order shall be acted upon by the

Commission within 60 days of the decision

declining to authorize the effective parole

release date. The CommissionÓs order shall

specifically state the reasons for finding

the inmate to be a poor candidat e for parole

release pursuant to Section 947.18, F.S.,

and shall identify the information relied

upon in reaching this conclusion.

Additionally, the order shall suspend the

established presumptive parole release date

until such time that the inmate is fou nd to

be a good candidate for parole release. The

determination, on extraordinary review, that

an inmate is not a good candidate for parole

release shall have the effect of overriding

his presumptive parole release date however,

the inmate shall continue to receive

extraordinary interviews, which shall be

scheduled pursuant to Rule 23 - 21.013, F.A.C.

(2) If upon extraordinary review, a

majority of the Commission finds the inmate

to be a good candidate for parole release

pursuant to Section 947.18, F.S., t he

Commission shall enter a written order

authorizing the effective parole release

date and outlining the term and conditions

of parole.

Specific Authority 947.002, 947.07 FS. Law

Implemented 947.002, 947.07, 947.18 FS.

History Î New 8 - 1 - 83, Formerly 23 - 21. 155,

Amended 8 - 17 - 06.

4. Had he been released from prison on parole, Mr. Peek

would have had the opportunity to live with Petitioner. As a

result of the CommissionÓs action, Petitioner is not able to

live and cohabitate with Mr. Peek as a married couple .

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

over this matter. §§ 120.56(1)(c), 120.569, and 120.57(1), Fla.

Stat.

Standing

6. Section 120.56(1)(a) provides that:

Any person substantially affected by a rule

or a pro posed 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.

7. The DivisionÓs jurisdiction to reach the merits of a

challenge to an agency rule depends upon an initial determination

that the person challenging the rule as an invalid exercise of

delegated legislative authority is substantially affected by the

rule so as to meet the elements of standing.

8. A determination of whether a person i s substantially

affected exists independently of whether the person has alleged

sufficient facts to prevail on the merits. Peace River/Manasota

Reg'l Water Supply Auth. v. IMC Phosphates Co. , 18 So. 3d 1079,

1082 - 85 (Fla. 2d DCA 2009); Palm Beach Cnty. En vtl. Coal. v.

Dep't of Envtl. Prot. , 14 So. 3d 1076 (Fla. 4th DCA 2009).

9. PetitionerÓs allegation as to her standing to challenge

rule 23 - 21.0155 is that the rule infringes with the legitimate

expectation of her husband being released on parole . . . to

enjoy her marital right to an intimate association with her

husband by associating with him as a family.Ñ Petitioner does

not allege any other basis for her standing to initiate this

proceeding.

10. In the context of a rule challenge proceeding, Ð[i ]n

order to meet the substantially affected test . . . , the

petitioner must establish: (1) a real and sufficiently immediate

injury in fact; and (2) Òthat the alleged interest is arguably

within the zone of interest to be protected or regulated.ÓÑ

(citat ions omitted) Lanoue v. Fla. Dep't of Law Enf. , 751 So. 2d

94, 96 (Fla. 1st DCA 1999).

11. The issue of standing to challenge a rule affecting

inmate rights and privileges based on the status of being the

spouse of an inmate appears to have been squarel y addressed by

the Final Orders in Theresa Burns v. DepÓt of Corr. , Case No.

97 - 4538RP (Fla. DOAH Dec. 8, 1997), and Albert Figueroa v. DepÓt

of Corr. , Case No. 11 - 3852RP (Fla. DOAH Sept. 22, 2011). As

stated by Judge Arrington in the Final Order in Case No. 97 -

4538RP, "it is the inmate's privilege to receive the visitor,

not the visitor's right to see the inmate. If, for example,

Petitioner's husband did not care to visit with her, Petitioner

would have no legal right to force a visit." Likewise, in thi s

case it is the inmate's privilege to receive parole, and if

paroled, he could go where he pleased, subject to the conditions

of his parole. Petitioner could not force Mr. Peek to engage in

an "intimate association," or to cohabitate with her upon his

re lease. The undersigned can find no distinction in Judge

ArringtonÓs or Judge BoydÓs reasoning in those cases and the

case at issue.

12. Furtherm ore, Petitioner's interests in r ule 23 - 21.0155

are not within the "zone of interest to be protected or

regu lated" by the rule. The purpose of the rule is establish

procedures by which the Commission determines whether an inmate

is or is not a good candidate for parole release. Pursuant to

the law implemented, s ection 947.18, that determination includes

a find ing of whether " if the person is placed on parole, he or

she will live and conduct himself or herself as a respectable and

law - abiding person , and that the personÓs release will be

compatible with his or her own welfare and the welfare of

society." Thus, the Ðzone of interestÑ of r ule 23 - 21.0155 is to

protect society from the actions and consequences resulting from

an inmateÓs premature release. The "zone of interest" of the

rule is not to facilitate PetitionerÓs "intimate association," or

cohabitation wi th the inmate.

13. Petitioner's allegation that the challenged rule

affects her expectation of having her husband live with her is

insufficient to meet either of the two prongs for standing. For

the reasons set forth herein, Petition er lacks standing to

challenge r ule 23 - 21.0155.

120.81(3), Florida Statutes

14. Section 120.81(3), Florida Statutes, provides that:

(3) PRISONERS AND PAROLEES. Ï

(a) Notwithstanding s. 120.52(13),

prisoners, as defined by s. 944.02, shall

not be considered parties in any proceedings

other than those under s. 120.54(3)(c) or

(7), and may not seek judicial review under

s. 120.68 of any other agency action.

Prisoners are not eligible to seek an

administrative determination of an agency

statement under s. 120.56(4). Paro lees

shall not be considered parties for purposes

of agency action or judicial review when the

proceedings relate to the rescission or

revocation of parole.

15. Through her challenge to the Commission's rule

regarding conditions of parole for inmates, P etitioner is

effectively circumventing that act of the legislature by acting

as a surrogate for her husbandÓs interest in his parole date.

Again, Judge Arrington squarely addressed the issue when he held

that:

the intent of the Legislature should not be

e roded by permitting others to litigate in

the stead of a prisoner:

However, there are a myriad of

circumstances in which the direct

regulation of prisoners in the custody

of the Respondent might indirectly

affect Petitioners. The geographic

assignment of prisoners, visitation

times, disciplinary actions for

prisoner infractions, even personal

property prisoners are permitted to

possess are issues that might

indirectly affect the relatives of

inmates. However, the Legislature has

clearly defined limits on standing to

challenge the DOC rules regarding the

regulation of prisoners and to permit

such challenges in the manner

Petitioners seek to do would circumvent

this legislative intent.

Theresa Burns v. DepÓt of Corr. , Case No. 97 - 4538RP (Fla. DOAH

Dec. 8, 1997), citing Fla. PrisonerÓs Legal Aid Org., Inc. and

Theresa Burns v. DepÓt of Corr. , Case No. 96 - 2943RX (Fla. DOAH

Sept. 19, 1996). The reasoning expressed by Judge Arrington and

Judge York is directly applicable to this case, and is accepted

by the un dersign ed. Petitioner's challenge to r ule 23 - 21.0155 is

preclude d by reasonable application of s ection 120.81(3), Florida

Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the petition initiating this case is

hereby DISMISSED.

DONE AND ORDERED this 17th day of May , 2012 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

T he DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of May , 2012 .

COPIES FURNISHED:

Helen Peek

1808 Southwest 67th Terrace

Gainesville, Florida 32607

Sarah J. Rumph, General Counsel

Florida Parole Commission

4070 Esplanade Way

Tallahassee, Florida 32399 - 2450

[e-mail]

Liz Cloud, Program Administrator

Administrative Code

De partment of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 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. Such proceedings are commenced by

fili ng one copy of a Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a second copy,

accompanied by filing fees prescribed by law, with the District

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

Appeal in t he appellate district where the party resides. The

Notice of Appeal must be filed within 30 days of rendition of

the order to be reviewed.