STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1892

)

ALFRED PERRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, an Administrative Hearing was held before DONALD R. ALEXANDER, Hearing Officer for the Division of Administrative Hearings, in Okeechobee, Florida, on December 16, 1980.

K. C. Collette, Esquire, 111 Georgia Avenue, West Palm Beach, Florida 33401, appeared on behalf of Petitioner, Department of Health and Rehabilitative Services. Shirley M. Steele, Esquire, Assistant Public Defender, 111 Atlantic Avenue, Ft. Pierce, Florida 33450, appeared on behalf of Respondent, Alfred Perry.

Petitioner, pursuant to Rule 10H-9.04, Florida Administrative Code, and Section 959.011(3), Florida Statutes, seeks to revoke the furlough of Respondent on the grounds Perry has knowingly violated certain conditions of his furlough agreement in material respects. Specifically, the Department contends Respondent knowingly violated Conditions (1), (4) and (11) by lying to his counselor, leaving his residence without the consent of his counselor, and violating his curfew.

Proposed findings of fact and conclusions of law were filed by the parties and have been considered by the undersigned in the preparation of this order.

FINDINGS OF FACT

1. Alfred Perry is a fifteen year old child under commitment to the Department of Health and Rehabilitative Services (HRS) who on July 16, 1980, was granted the privilege of transferring to an Intensive Counseling Program under the direct supervision of the Bureau of Group Services, Division of Youth Services. While participating in that program, Respondent was permitted to remain in the custody of his father at Fort Pierce, Florida. The transfer was the subject of a furlough agreement entered into by Perry and HRS on the same date.

   
   

2. Under the terms of the furlough agreement, Perry was required to comply with fourteen conditions of supervision as a prerequisite to remaining in the treatment program and on furlough (Exhibit No. 1). In the event a condition was violated, Respondent was subject to being transferred to another program or facility of the Division of Youth Services (Exhibit No. 1).

3. Because of certain alleged violations of Perry's Supervision Agreement (Exhibit No. 3), an informal transfer hearing was held on August 27, 1980, in Fort Pierce, Florida, before a Youth Services Program Specialist. By Order dated September 2, 1980, the Specialist recommended that Perry's furlough be revoked for violating Conditions (1), (4) and (11) of his Supervision Agreement, and that he be transferred to another program/facility. Since that time, Perry has been assigned to the Training School at Okeechobee, Florida.

   
   

4. Condition No. 1 of the Agreement requires that Respondent "promptly and truthfully answer all questions directed to (him) by the counselor." On or about August 4, 1980, Respondent telephoned his counselor and advised her he had been injured when falling off a motorcycle and would therefore be unable to attend a required group session. While conceding he also watched a basketball game in a playground adjacent to his home after the injury occurred, he nevertheless maintained the injury prevented his participation in the group session on that date.

   
   

5. Condition No. 4 requires that Respondent "not change or leave residence." This condition prohibits Respondent from spending the night at another person's house without having obtained permission from his counselor. The counselor was advised by Respondent's father that Perry spent the nights of July 18, August 18 and 19, 1980, at his sister's house. Respondent confirmed he spent several nights at his sister's home during the period in question. Although prior permission to stay overnight was required from the counselor, Respondent failed to obtain such permission on each occasion.

   
   

6. Condition No. 11 provides that Respondent observe an 8:00 p.m. curfew on weekday nights and a 9:00 p.m. curfew on Fridays and Saturdays. Respondent acknowledged he was not inside his father's house at the required time on the evening of July 30, 1980.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this action pursuant to Section 120.57(1), Florida Statutes.

   
   

8. Rule 10H-9.04, Florida Administrative Code, provides in part that:

   
   

   When there are reasonable grounds to believe a child has violated his/her furlough agreement in any material respect, the Youth Services counselor having aftercare supervisory authority shall investigate and evaluate the information available to determine its validity and truthfulness.

   
   

9. The Rule goes on to provide that an Informal revocation hearing shall be held before a program specialist in the event a recommendation of revocation is made by the counselor. Rule 10H-9.05, Florida Administrative Code, further prescribes the procedures to be followed prior to the formal hearing provided for in Section 120.57(1), Supra. Such procedures were followed, and an order of transfer issued which precipitated the instant proceeding.

10. The Department contends Respondent violated his Supervision Agreement in a number of material respects, all of which support a revocation of his furlough. Each alleged violation will be dealt with separately.

    
    

    Violation of Condition No. 1

    
    

11. Petitioner initially contended Respondent violated his first condition of the Supervision Agreement by failing to truthfully answer all questions directed to him by his counselor. The alleged violation stemmed from a statement made by Respondent to his counselor concerning an injury sustained when falling off a motorcycle on or about August 4, 1980, thereby rendering him unable to attend a required group session on that date. Petitioner asserted Perry was not in fact injured but actually participated in a basketball game on the day he claimed to be injured. However, such allegations are founded only on hearsay testimony and cannot serve as the basis for any finding of fact unless corroborated by other competent and substantial evidence. Section 120.58(1)(a) Florida Statutes. There being none, such evidence should be rejected. The sole competent evidence of record is that of Respondent, who presented uncontroverted testimony that an injury occurred, and that such injury precluded him from attending the required group session. Accordingly, it must be concluded Respondent did not violate Condition No. 1 of his Supervision Agreement.

    
    

    Violation of Condition No. 4

    
    

12. Petitioner contends Respondent violated Condition No. 4 of his Supervision Agreement by spending the evenings of July 18, and August 18 and 19, 1980, at his sister's house without obtaining the necessary permission of his counselor, and that such constituted a change of residence in contravention of the Agreement. Preliminarily, the argument of Respondent that the alleged violation on July 18, 1980, should be dismissed because the Agreement itself was not consummated until July 21, 1980, must be rejected since the Agreement was signed by Respondent on July 16, 1980, and became effective on that date (Exhibit No. 1)

    
    

13. Underpinning the allegations is the testimony of Perry's counselor who stated Perry's father told her Respondent spent the nights of July 18, and August 18 and 19, 1980, at his sister's house in Fort Pierce. This testimony was corroborated by the Respondent, and as such, is admissible in an administrative proceeding. Pasco County School Board v. Florida Public Employee Relations Commission, 375 So.2d 43 (Fla. 1st DCA 1979); Section 120.58(1)(a), Supra. The counselor further testified, without contradiction, that Perry failed to obtain her permission to spend the night away from home, and that such violations were "discussed" with Perry at a later date. Perry's contentions that he was unclear as to the proper procedure to be followed in obtaining the necessary permission, and uncertain as to the meaning of the term "change of residence", must be rejected since all conditions were fully explained to Perry prior to signing the Agreement. Accordingly, it is concluded that Perry has violated his Agreement in a material respect by failing to comply on three occasions with Condition No. 4 of his Agreement.

    
    

    Violation of Condition No. 11

    
    

14. The alleged violations of Condition No. 11 pertained to a failure by Perry to observe curfew on the evenings of July 29, 30, and August 18 and 19, 1980. The Agreement required that Perry be home no later than 8:00 p.m. on Sundays through Thursdays and no later than 9:00 p.m. on the remaining two days of the week.

15. Petitioner relied upon the testimony of Perry's counselor who stated the violations were based upon (1) statements made to her by Perry's father that Perry had failed to observe curfew on July 29, and August 18 and 19, 1980, and

    (2) statements made by Perry in a telephone conversation with her on the evening of July 30, 1980, advising her he was at his sister's house after curfew.

    
    

16. The alleged violation of curfew on July 29, 1980, is predicated solely upon hearsay testimony and such evidence pertaining thereto must be rejected. Section 120.58(1)(a), Supra. However, the violation of July 30, 1980, is supported by competent evidence and should be accepted. Further, the hearsay testimony relating to the curfew violations on the evenings of August 18 and 19, 1980, supplements and explains other evidence that Respondent spent those entire evenings at his sister's home. Therefore, it is concluded that three material violations of Condition No. 11 have occurred.

    
    

17. Having violated Condition Nos. 4 and 11 of the Supervision Agreement in material respects, it is concluded that the Petitioner has properly revoked the furlough agreement of Alfred Perry and its Order of September 2, 1980, should be sustained.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the furlough agreement of Alfred Perry be revoked and the

action of Petitioner on September 2, 1980, be sustained.

DONE and ENTERED this 16th day of January, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1981.

COPIES FURNISHED:

K. C. Collette, Esquire District 9 Legal Counsel Department of HRS

111 Georgia Avenue

West Palm Beach, Florida 33401

Mr. Alfred Perry Florida School for Boys Route 2, Box 250

Okeechobee, Florida 33472

Shirley M. Steele, Esquire Assistant Public Defender

111 Atlantic Avenue

Fort Pierce, Florida 33450

Docket for Case No: 80-001892

Orders for Case No: 80-001892