96-002943RX Florida Prisoners` Legal Aid Organization, Inc., And Teresa Burns vs. Department Of Corrections Status: Closed DOAH Final Order on Thursday, September 19, 1996.

Summary: Petitioners do not have standing to challenge gain time rules. Rule limiting discretionary gain time held not to violate sections 120.54 or 120.56, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA PRISONERS' LEGAL AID )

ORGANIZATION, INC., a non profit )

Florida Corporation, and TERESA )

BURNS, a private citizen, )

)

Petitioners, )

)

vs. ) CASE NO. 96-2943RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

_____________________________________)

FINAL ORDER

Pursuant to notice, this cause was heard by James W. York, the assigned

Hearing Officer of the Division of Administrative Hearings, on August 5, 1996,

in Tallahassee, Florida.

APPEARANCES

For Petitioners: Teresa Burns, pro se, Chairman

Florida Prisoners' Legal Aid

Organization, Inc.

14365 East Colonial Drive, Suite 1A

Orlando, Florida 32826

For Respondent: Judy Bone, Esquire

Assistant General Counsel

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

STATEMENT OF THE ISSUE

At issue in this proceeding is the validity of Rule 33-11.0065(1)(a)6.,

Florida Administrative Code.

Petitioners allege that (1) Respondent materially failed to follow the

applicable rulemaking procedures required by Section 120.54, Florida Statutes;

(2) Respondent violated Section 120.54(2)(b)2., Florida Statutes, by denying one

of the Petitioners an opportunity to file a written request for an economic

impact statement regarding the challenged rule; (3) that the rule enlarges,

modifies, or contravenes the specific provisions of law purported to be

implemented and in violation of Section 120.56, Florida Statutes; and (4) that

the adopted rule violates provisions of the United States Constitution.

Respondent disputes the standing of Petitioners to maintain the challenge

to the rule in question.

PRELIMINARY STATEMENT

On June 19, 1996, Petitioners filed an original Petition for Determination

of the Invalidity of an Existing rule pursuant to Section 120.56, Florida

Statutes. On July 2, 1996, Petitioners filed a Motion to Voluntarily Withdraw

Petition and/or to Submit Amended Petition. On July 5, 1996, Petitioners filed

an Amended Petition and the Motion to Amend was granted on July 15, 1996.

On July 9, 1996, a Notice of Hearing was issued, scheduling the final

hearing for August 5, 1996, in Tallahassee, Florida. Also on July 9, 1996, an

Order to Show Cause was issued, ordering Petitioners to Show Cause as to why the

petition should not be dismissed on the basis of lack of standing for

Petitioners to challenge the disputed rule. On July 30, 1996, Petitioners filed

a timely response to the Order to Show Cause. On July 31, 1996, an Order on

Standing was issued, determining that Petitioners had shown cause as to why the

amended petition should not be dismissed prior to hearing and ordering that the

final hearing would take place as originally scheduled. This order did not, of

course, relieve Petitioners from their burden to prove standing at the final

hearing.

On August 2, 1996, Petitioners indicated that they wished to have the date

for final hearing in this cause continued to a later date. Due to the short

time remaining until the scheduled hearing, a hearing was set up by telephone

conference call so that Petitioner could make an oral motion for continuance. A

hearing reporter was present during the telephone hearing and a transcript of

the hearing has been filed. Petitioners made the motion to continue the final

hearing and Respondent objected on the basis that Petitioners had not shown good

cause. Ms. Burns suggested that she could attend the final hearing on August 5,

1996 by telephone. Based upon Ms. Burns' assertion that she would not present

witness testimony, the hearing date was not continued and the hearing remained

scheduled on August 5, 1996 in Tallahassee, with Ms. Burns attending and

participating by telephone.

At the hearing, Petitioners renewed an oral motion for continuance of the

final hearing based primarily on the assertion that Petitioners had not had the

time or opportunity to file exhibits. Ms. Burns, upon being afforded the

opportunity to file the exhibits post-hearing, withdrew the motion for

continuance.

Petitioners presented no witnesses at the hearing and tendered five post-

hearing exhibits as well as an affidavit executed by Ms. Burns to indicate that

she was present by telephone at the hearing, did take an oath to give truthful

testimony, and did provide testimony during the hearing. Petitioners also filed

a post-hearing motion for sanctions against Respondent.

Respondent presented the testimony of Cheryl Dula and Petitioner Burns at

the hearing. Respondent also filed a post- hearing objection to Petitioners'

exhibits and a response to Petitioners' motion for sanctions.

Rulings on all post-hearing evidentiary submissions and other motions by

the parties are contained in the conclusions of law portion of this Final Order.

Official notice is taken of Florida Attorney General Opinion 96-22.

All parties submitted post-hearing proposed findings of fact and

conclusions of law. A ruling on each proposed finding of fact can be found in

the Appendix to this Final Order.

FINDINGS OF FACT

1. Petitioners have filed a petition seeking to invalidate Department of

Corrections (DOC) Rule 33-11.0065(1)(a)6., Florida Administrative Code. The

disputed rule relates to "gain time" provisions for inmates of the DOC and

provides, in the portion at issue in this proceeding:

33-11.0065 Incentive Gain Time

(1) Ineligibility

(a) No inmate shall receive or accumulate

incentive gain time:

6. If convicted of any of the following

offenses committed before October 1, 1995

and has 85 percent or less of any sentence

remaining to be served. The provisions of

(1)(a)6. shall also apply to work, extra and

constructive gain time for inmates convicted

of offenses committed between July 1, 1978

and June 14, 1983. The provisions of (1)(a)6.

shall not apply to educational gain time under

s. 944.801, F.S., or to meritorious or

educational achievement gain time.

Interests of the Petitioners

2. Petitioner Teresa Burns (Burns) is not an inmate of the DOC but is the

wife of Bobby Posey (Posey) who is incarcerated in the custody of Respondent.

Posey is serving three consecutive 99 year sentences. Pursuant to the

Respondent's adoption and implementation of the disputed rule provision, Posey

will not be eligible to earn gain time to reduce his sentences. If Posey earned

all gain time theoretically possible, without application of the challenged

rule, his tentative release date from the DOC would be in the year 2079.

3. Also at issue in this proceeding is the application of Section

120.54(2)(b)2., Florida Statutes, which provides, in pertinent part, as follows:

(b) Prior to the adoption, amendment, or

repeal of any rule ..., an agency may provide

information on its proposed action by

preparing an economic impact statement, and

must prepare an economic statement if:

2. ...within 21 days after the notice

required by paragraphs (1)(a) and (b) a

written request for preparation of an

economic impact statement is filed with the

appropriate agency by the Governor, a body

corporate and politic, at least 100 people

signing a request, or an organization repre-

senting at least 100 persons, or any domestic

nonprofit corporation or association.

4. Petitioner Florida Prisoners' Legal Aid Organization, Inc. (FPLAO) is,

according to the petition and other submissions filed in this proceeding, a

corporation registered with the Florida Department of State as a non-profit

corporation.

5. Petitioners have offered no evidence to establish that FPLAO is, in

fact, a registered Florida corporation (other than Burns' testimony at the

hearing wherein she referred to "Florida Prisoners' Legal Aid Organization,

Inc."). Respondent has not, however, disputed the corporate status of the

FPLAO. In any event, Petitioners did establish, through the unrefuted testimony

of Burns, that FPLAO is an organization of "several hundred members."

6. Petitioners have established on the record that the FPLAO is an

organization contemplated by the language of Section 120.54(2)(b)2., Florida

Statutes. Therefore, FPLAO was entitled to file with DOC, within 21 days of the

published notice of the proposed rule, a written request for a statement of the

economic impact of the proposed rule.

7. FPLAO and its Chairman, Burns, were on notice of the proposed rule as

the proposal was originally published in the Florida Administrative Law Weekly.

Further, the Petitioners were aware that the rule, as originally proposed,

affected gain time for inmates of the DOC by placing limitations on the amount

of gain time that inmates convicted after October 1, 1995, could earn.

8. Petitioners did not make any request for a public hearing relative to

the proposed rule nor did either Petitioner make a request to be noticed of any

changes in the proposed rule. Petitioners, and specifically the FPLAO, did not

make a request for an economic impact statement within 21 days of publication of

notice of the proposed rule.

9. Petitioners failed to request a public hearing, notice of changes to

the proposed rule, or an economic impact statement, because the rule, as

originally proposed, did not affect inmates (including Burns' husband, Posey)

convicted prior to October 1, 1995.

10. The only evidence presented to establish what the specific goals or

purposes of the FPLAO are consists of Burns' testimony that the purpose of the

organization is "for information and support to friends, family, loved ones or

information that can be dealt with on the law" in reference to "prison issues."

11. Burns testified that prisoners are members of the FPLAO but was unable

to provide a percentage of prisoners vis a vis non-prisoners in the make up of

members. There is no evidence in the record to establish the sentences of

inmates who belong to the FPLAO.

12. There is no evidence in the record to indicate what specific

activities the Florida Prisoners' Legal Aid Organization, Inc. is, or is not,

authorized to engage in.

13. Based upon the record in this proceeding, the avowed interests of the

FPLAO are not limited to matters affecting the DOC inmates convicted before

October 1, 1995. FPLAO received proper notice that the proposed rule would

limit incentive gain time for some, if not all, DOC inmates.

14. Petitioners also challenge the rule at issue pursuant to Section

120.54, Florida Statutes, alleging that the rule was not properly promulgated as

required by that statute, contending that the rule, as originally noticed, was

substantially changed after the initial notice and prior to final adoption

without proper notice of the change.

15. Petitioners also seek to challenge the substance of the rule as an

invalid exercise of delegated legislative authority pursuant to Section 120.56,

Florida Statutes.

Promulgation of the Challenged Rule

16. Petitioners submitted a DOC draft of a proposal to amend Sections 33-

11.0035 and 33-11.065, Florida Administrative Code. This document indicates

that a proposal to amend these rules was approved by DOC Deputy Secretary, Bill

Thurber, on January 12, 1996. There is nothing on the face of the document or

in its contents to indicate whether the document is a copy of the proposed rule

approved on January 12, 1996 or is a later draft with a notation that the

original proposed rule was approved on the prior date. Included in this

document is the following provision pertinent to this proceeding:

33-11.0065 Incentive Gain Time.

(1) Ineligibility.

(a) No inmate shall receive or accumulate

incentive gain time:

1. through 4. No change.

(5. If convicted of offenses committed on

or after October 1, 1995 and has 85 percent

or less of the sentence remaining to be

served.)

(6. If convicted of any of the following

offenses committed before October 1, 1995

and has 85 percent or less of any sentence

remaining to be served. The provisions of

(1)(a)6. shall also apply to work, extra and

constructive gain time for inmates convicted

of offenses committed between July 1, 1978

and June 14, 1983. The provisions of (1)(a)6.

shall not apply to educational gain time under

s. 944.801, F.S., or to meritorious or

educational achievement incentive gain time.)

(Emphasis added.)

17. Respondent submitted a document dated January 9, 1996 which indicates

that the document is "a proposed final draft" of the rule at issue. This

document does not include the provision making the rule applicable to inmates

convicted prior to October 1, 1995. Petitioners have failed to establish that

their exhibit constitutes proof that the agency intended all along to adopt the

rule provision at issue but intentionally made the published proposal

"innocuous" so as to deny Petitioners a "point of entry."

18. On March 1, 1996, the DOC published a Notice of Proposed Rule Making

in the Florida Administrative Law Weekly. This notice contained the agency's

proposal to amend Rules 33-11.0035 and 33-11.0065, Florida Administrative Code,

which govern Incentive Gain Time for inmates of DOC. This proposal is

summarized in the notice as follows:

PURPOSE AND EFFECT: The proposed amendments

are needed in order to implement legislative

changes made in 1995 to statutory gain time

provisions.

SUMMARY: (Proposed amendments to 33-11.0035

provide a requirement that inmates convicted

of offenses on or after October 1, 1995)

serve no less than 85 percent of the sentence

imposed, and revise the performance ratings

for incentive gain time to delete the

"outstanding" category and redefine "satis-

factory" and "above satisfactory" perfor-

mance. (Proposed amendments to 33-11.0065

provide for a restructuring of the procedures

for crediting inmates with incentive gain

time, incorporating the changes provided for

in 33-11.0035).

SPECIFIC AUTHORITY: 20.315, 944.09, 944.275

FS

LAW IMPLEMENTED: 20.315, 944.09, 944.275 FS

(Emphasis supplied.)

Therefore, the proposed rule, as noticed on March 1, 1996, did not purport to

affect the incentive gain time of inmates convicted prior to October 1, 1995.

19. On March 20, 1996, the Florida Attorney General issued Attorney

General Opinion 96-22 to the Secretary of the Department of Corrections. This

opinion was issued to the DOC in response to the following question previously

asked by the Secretary:

May the Department of Corrections, in the

exercise of its statutory grant of

discretion, adopt a rule that denies an

award of work, extra, and incentive gain-

time to certain classes of inmates when such

rule will be applied prospectively and will

not affect such gain-time already awarded?

20. In AGO 96-22, the Attorney General expressed the opinion, in sum:

The Department of Corrections, in the

exercise of its statutory grant of

discretion, may adopt a rule that denies an

award of work, extra, and incentive gain-

time to such classes of inmates it deems

appropriate when such rule will be applied

prospectively and will not affect such

discretionary gain-time already awarded.

21. In this response to the DOC Secretary, the Attorney General indicates

the opinion that the DOC has the statutory discretion to properly change rules

related to discretionary gain time of inmates convicted prior to October 1,

1995, so long as the rule does not affect discretionary gain time already

awarded.

22. After March 20, 1996, and prior to the final enactment of the rule at

issue, the DOC added the provision that appeared in the January 12, 1996,

internal DOC proposal approved by Deputy Secretary Thurber which applied the

limitation on earning gain time to inmates convicted prior to October 1, 1995.

23. On March 25, 1996, the DOC notified the Joint Administrative

Procedures Committee of the change in the proposed rule but did not otherwise

publish notice of the change.

24. The challenged rule, as finally adopted by the Respondent, contained

the provision at issue, Section 33-11.0065(1)(a)6., Florida Administrative Code.

Petitioners' Challenge to the Substance of the Rule

25. Petitioners have presented no evidence in support of the allegations

contained in the Amended Petition that the challenged rule enlarges, modifies,

or contravenes the provisions of law sought to be implemented in this case.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has jurisdiction over the

subject matter of and the parties to this proceeding. Sections 120.56 and

120.57(1), Florida Statutes.

Post-Hearing Submissions

27. Pursuant to a post-hearing order issued on August 6, 1996,

Petitioners submitted their Exhibits A, B, C, D, and E on August 15, 1996. Also

pursuant to the post-hearing order, Respondent filed a timely written objection

to Petitioners' Exhibit A. After due consideration of Respondent's objection to

Petitioners' Exhibit A, the objection is overruled and the exhibit is accepted.

Respondent's comments within the objection are considered argument going to the

weight to be accorded the exhibit.

28. The affidavit of Perri King Dale and attached January 9, 1996 proposed

final draft of the rule at issue is accepted without objection.

29. On August 15, 1996, Petitioners filed an "Objection, Motion for

Sanctions, and Request for Official Recognition." In this submission,

Petitioners object to Respondent's actions which allegedly involved the

disruption of a telephone conversation between Petitioner Burns and inmate Posey

immediately prior to the final hearing in this case, and the placing of Posey in

confinement on the date of the final hearing. Among other things, Petitioners

assert that this conduct on the part of Respondent was improper and an attempt

to intimidate and distract Petitioner Burns before the hearing and to negatively

influence her testimony. The Division of Administrative Hearings has no

jurisdiction over the conduct of Respondent as alleged in the motion, the motion

does not state grounds for relief, and the Petitioners' motion is denied.

Respondent's response to the motion was received and duly considered.

Standing

30. Respondent challenges the standing of both Petitioners to maintain a

challenge to the disputed rule pursuant to Sections 120.54 and 120.56, Florida

Statutes.

31. A party challenging the validity of an existing or proposed rule bears

the burden of proving standing to maintain such a challenge where, as in this

proceeding, standing is made an issue. Department of Health and Rehabilitative

Services v. Alice, 367 So.2d 1045 (Fla. 1st DCA 1979).

32. Petitioner Burns seeks to demonstrate standing to challenge the

disputed rule based upon her contention that "her associational rights with her

spouse will be terminated or significantly delayed by application of the rule."

33. The test for standing to maintain an action pursuant to Chapter 120,

Florida Statutes, is whether the party (1) will suffer injury in fact which is

of sufficient immediacy to entitle the party to an administrative hearing and

(2) that the injury is of a type or nature which the proceeding is designed to

protect. Florida Society of Ophthalmology v. State of Florida Board of

Optometry, 532 So.2d 1279, 1285 (Fla. 1st DCA 1988) (citing Agrico Chemical Co.

v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981).

34. Petitioners contend that the Agrico test for standing is not

applicable in this proceeding because this case is a rule challenge brought

pursuant to Sections 120.54 and 120.56, Florida Statutes. The test for standing

in a rule challenge case has been held to be distinguishable from that applied

in Section 120.57 proceedings, given appropriate facts. In a rule challenge

proceeding petitioners are not required to prove that the injury complained of

is solely within the "zone of interest" protected by the statute relied upon by

the agency as authority for the rule. Florida Medical Association v. Department

of Professional Regulation, 426 So.2d 1112, 1117 (Fla. 1st DCA 1983). In rule

cases, it is appropriate for the Hearing Officer to consider the effect of other

statutes in determining standing. Id. However, in this case, Petitioners have

failed to establish that they meet either the Agrico test or the more expanded

test for standing outlined in the Florida Medical Association case.

35. Petitioners contend that the challenged rule substantially affects

Burn's rights to familial association with her husband, Posey. The rule would

appear to affect the members of the FPLAO who are relatives of affected inmates

to the same extent that it would affect Burns.

36. Section 944.275, Florida Statutes, provides the DOC with the statutory

discretion to award gain time to inmates in their custody. The purpose of gain

time would appear to be to provide the DOC with a mechanism to encourage certain

inmate activities and to discourage others. Petitioners have not proved that

Section 944.75, Florida Statutes, is designed to protect their asserted

interests and the Petitioners have not cited any other statutory or regulatory

provisions in Florida law which are designed to do so. Petitioners' reliance on

federal case law regarding rights of familial association involve child custody

and are distinguishable from the facts presented in this case.

37. Effective July 1, 1992, the Division of Administrative Hearings no

longer has jurisdiction over rule challenges brought by individuals who are

prisoners as defined in Section 120.52(12)(d), Florida Statutes. The

Legislature has therefore placed limitations on the standing of inmates who are

directly affected by the disputed rule to challenge the rule in an

administrative proceeding. Therefore, prisoners who are members of the FPLAO

have no standing to challenge the disputed rule in this proceeding as a matter

of law.

38. Both Petitioners have established that the challenged rule has some

effect on their interests. 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.

39. Not everyone having an interest in the outcome of a dispute over an

agency's rule that determines the rights and interests of others is entitled to

participate as a party in an administrative proceeding to resolve that dispute.

Florida Society of Opthalmology, supra, 532 So.2d at 1284.

Were that not so, each interested citizen

could, merely by expressing an interest,

participate in the agency's efforts to

govern, a result that would unquestionably

impede the ability of the agency to function

efficiently and inevitably cause an increase

in the number of litigated disputes well

above the number administrative and appellate

judges are capable of handling. Therefore

the legislature must define and the courts

must enforce certain limits on the public's

rights to participate in administrative

proceedings. Id.

40. Based upon the evidence of record in this case, neither Petitioner has

met the burden to prove standing based on the applicable law.

41. Petitioners have established that the FPLAO is an organization

entitled to request an economic impact statement pursuant to Section

120.54(2)(b)2., Florida Statutes.

42. Petitioners contend that the FPLAO failed to request the economic

impact statement within the 21 days provided by law because the challenged

rule, as originally noticed in the Florida Administrative Law Weekly, did not

affect prisoners convicted prior to October 1, 1995, therefore, did not affect

the interests of the organization. This argument is not persuasive. The avowed

interests of the FPLAO, as indicated in the record in this case, is not limited

to prisoners convicted in any specified time period. Petitioners have failed to

establish a logical basis for the failure of the FPLAO to request an economic

impact statement within the time specified by statute and have therefore failed

to prove that the group was denied a point of entry to do so.

43. Petitioners have also established that, after the original published

notice of the proposed rule, Respondent made a substantial amendment to the

proposal and did not publish notice of the amendment prior to adopting the rule.

44. Section 120.54(13)(b), Florida Statutes, provides in pertinent part:

(b) After the notice required in subsection

(1) and prior to adoption, the agency may

withdraw the rule in whole or in part or may

make changes in the rule as are supported by

the record of public hearings held on the

rule, technical changes which do not affect

the substance of the rule, changes in

response to written material relating to the

rule received by the agency within 21 days

after the notice and made a part of the

record of the proceeding, or changes in

response to a proposed objection by the

[Administrative Procedures] committee.

45. Petitioners argue that the substantive change in the rule violated

Section 120.54(13)(b). However, the record of the rule adoption proceeding was

not placed in evidence in this case and Petitioners failed to meet their burden

to establish that the proposed rule was changed in a manner not otherwise

permitted by the statute. Petitioners present a logical argument in this regard

but failed to provide the proof necessary to support it.

The Challenge to the Substance of the Rule

46. Petitioners also challenge the rule pursuant to Section 120.56,

Florida Statutes, alleging that the rule enlarges, modifies, or contravenes the

provisions of law which it is intended to implement.

47. Respondent relies on Section 944.275, Florida Statutes, as the

specific authority to promulgate the rule at issue. Petitioners argue that this

statute does not authorize the Respondent to deny incentive gain time on the

basis of anything other than the inmate's conduct. In addition, Petitioners

contend that the statute does not convey the authority to the agency to impose

gain time restrictions on any inmate convicted before October 1, 1995.

48. On March 20, 1996, at the request of the Secretary of the Department

of Corrections, the Attorney General of Florida issued his opinion number 96-22

relative to the authority of the agency to promulgate the challenged rule

pursuant to Section 944.275. In this opinion, the Attorney General analyzed the

history of the gain time statute and directly addressed the issue raised by

Petitioners as follows:

The awarding of incentive gain-time in

section 944.275, Florida Statutes, was

amended in 1993 and again in 1995. Among

the amendments to the statute was a provision

making inmates who were sentenced for offenses

committed on or after October 1, 1995,

ineligible to earn any type of gain-time in

an amount that would cause the sentence to

expire or terminate prior to the inmate

having served a minimum of 85 percent of the

sentence imposed. While the 1993 and 1995

amendments altered the amount of gain-time

DOC was authorized to award, its discretion

whether to award such gain-time was not

altered.

Thus, since 1979 section 944.275, Florida

Statutes, has recognized the discretion of

DOC in awarding incentive gain-time, even

though the statute in effect at the time

the offense was committed would control

the maximum amount of gain-time the depart-

ment could award. In recognition thereof,

the Supreme Court of Florida in Waldrup v.

Dugger stated:

Nothing in this opinion, however, shall be

read as restricting the discretion accorded

DOC under the earlier incentive gain-time

statutes. This discretion remains intact.

If DOC withholds all or some of the

incentive gain-time available to Waldrup or

similarly situated inmates under the earlier

statutes, then DOC's actions cannot be

challenged unless they constitute an abuse

of discretion.

In Waldrup the Court recognized that the

statutory language amending the gain-time

statute in 1983 "discloses that the total

number of days granted by DOC was discret-

ionary, provided the award never exceeded

twenty." Thus, while the 1983 reforms

limited DOC's discretion by decreasing the

largest possible incentive gain-time award

from 37 to 20 days a month, DOC still

retained substantial discretion in deciding

whether to award such incentive gain-time.

Op. Attorney Gen. 96-22 March 20, 1996, at page 3 (footnotes omitted). This

Attorney General's opinion is dispositive, and on that authority it is concluded

that the Respondent acted within the authority conveyed by the Legislature in

Section 944.275, Florida Statutes, in adopting the challenged rule.

49. Petitioners bear a stringent burden in challenging an agency rule.

Agrico Chemical Co. v. State Department of Environmental Regulation, supra. If

the rule does not exceed the agency's statutory authority and is reasonably

related to an appropriate purpose of the statute, it should be sustained. State

Marine Fisheries Commission v. Organized Fishermen of Florida, 503 So.2d 74

(Fla. 1st DCA 1987). Assuming, therefore, that the Petitioners in this case had

established standing to proceed, based upon the foregoing, Petitioners failed to

prove that the rule in question is invalid pursuant to either Section 120.54 or

Section 120.56, Florida Statutes.

Constitutional Issues

50. Finally, Petitioners in this case challenge the disputed rule on

constitutional grounds. This issue was also addressed by the Attorney General

in opinion 96-22. The Attorney General concluded, in sum:

The Department of Corrections, in the

exercise of its statutory grant of

discretion, may adopt a rule that denies an

award of work, extra, and incentive gain-

time to such classes of inmates it deems

appropriate when such rule will be applied

prospectively and will not affect such

discretionary gain-time already awarded.

Op. Attorney Gen. 96-22, supra, at page 2. Petitioners do not allege that the

rule retroactively affects the gain time accumulated by inmates.

51. This opinion of the Attorney General also concludes that the rule does

not offend the equal protection clause of the United States Constitution. Id.,

at page 5.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED:

That petitions filed in this proceeding, challenging the validity of Rule

33-11.0065(1)(a)6., Florida Administrative Code, pursuant to Sections 120.54 and

120.56, Florida Statutes, are dismissed.

DONE and ENTERED this 19th day of September, 1996, in Tallahassee, Florida.

___________________________________

JAMES W. YORK, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of September, 1996.

APPENDIX TO FINAL ORDER DOAH CASE NO. 96-2943RX

Rulings on Petitioners' Proposed Findings of Fact:

1. Adopted in paragraph 1 of the Final Order.

2. Rejected. Respondent is not required to file such

responses.

3. Adopted in paragraphs 5 and 6 of the Final Order.

4. Adopted in substance in paragraph 2 of the Final

Order.

5. Rejected, not material or relevant.

6. Rejected, not material or relevant and not

supported by the record.

7. Adopted in material part in paragraphs 4-6 of the

Final Order. Petitioners' standing involves a

conclusion of law and is addressed in that portion

of the Final Order.

8. Rejected as argument and conclusions not supported

by the record. Burns' standing is addressed in the

Conclusions of Law portion of the Final Order.

9. Adopted to the extent relevant in paragraph 16.

The remainder of this proposed finding is rejected

as argumentative, conclusory and not supported by

the evidence.

10. Adopted in material part in paragraph 18 of the

Final Order.

11. Rejected, not necessary to conclusions reached and

immaterial.

12. Adopted in material part in paragraph 19 of the

Final Order.

13. Adopted in material part in paragraphs 22-24 of the

Final Order. Petitioners failed to prove

Subsection 33-11.0065(1)(a)6. was "re-added."

Whether Respondent acted in a manner "required by

law" or not is a legal conclusion and is rejected.

14. Adopted in material part in paragraph 24 of the

Final Order.

Rulings on Respondent's Proposed Findings of Fact:

1-2. Adopted in substance in paragraph 18 of the Final

Order.

3. Adopted in substance in paragraph 24 of the Final

Order.

4. Adopted in substance in paragraph 1 of the Final

Order.

5-7. Adopted in substance in paragraph 2 of the Final

Order.

8-9. Rejected. Not necessary to conclusions reached.

10. Adopted in substance in paragraph 2 of the Final

Order.

11. Not necessary to the conclusions reached.

12. Adopted in substance in paragraphs 10-11 of the

Final Order.

13-14. Adopted in substance in paragraphs 7 and 13 of the

Final Order.

15-17. Adopted in substance in paragraph 9 of the Final

Order.

COPIES FURNISHED:

Teresa Burns, Chairman

Florida Prisoners' Legal Aid

Organization, Inc.

14365 East Colonial Drive, Suite 1A

Orlando, Florida 32826

Judy Bone, Esquire

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

Harry K. Singletary, Jr., Secretary

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

Liz Cloud, Chief

Bureau of Administrative Code

The Elliott Building

Tallahassee, Florida 32399-0250

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 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 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.