STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRUCE WARREN HUBBARD, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2002

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on December 19, 1980, in Daytona Beach, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on the rejection of Bruce Warren Hubbard's furlough by the Department of Health and Rehabilitative Services because Hubbard had violated the terms of his furlough. Hubbard requested a formal hearing on the rejection of his furlough, and the matter was referred to the Division of Administrative Hearings by the Department to conduct a formal hearing pursuant to Section 120.57, Florida Statutes, on whether the action by the Department was warranted.

APPEARANCES

For Petitioner: Bruce Warren Hubbard, pro se

Hatton House, Cluster 1 Dozier School for Boys Post Office Box 490 Marianna, Florida 32446

For Respondent: Jeffery B. Morris, Esquire

Department of Health

and Rehabilitative Services 5920 Arlington Expressway Post Office Box 2417-F Jacksonville, Florida 32231

ISSUE

Hubbard's furlough was terminated by the Department of Health and Rehabilitative Services because Hubbard allegedly had drunk alcoholic beverages and had become intoxicated contrary to the terms of his furlough agreement. The Factual issue was whether Hubbard had drunk alcoholic beverages and become intoxicated.

FINDINGS OF FACT

1. Bruce Warren Hubbard was committed to the custody of the Department of Health and Rehabilitative Services by a court off competent jurisdiction in

   December, 1979. On May 5, 1980, Hubbard entered into a furlough agreement and was released from the Dozier School for Boys to return home and remain under the supervision of a Department counselor.

   
   

2. The furlough agreement, which was received as Exhibit 1, provides in pertinent part that Hubbard would obey all laws and carry out the instructions of his counselor.

   
   

3. Hubbard's counselor, James E. Horne, stated that he specifically instructed Hubbard to refrain from frequenting bars and drinking alcoholic beverages.

   
   

4. Subsequent to receiving these instructions, Hubbard violated his counselor's instructions and the terms of his furlough by drinking, and his furlough was revoked. At an informal hearing held on this revocation on or about July 30, 1980, Hubbard entered into a contract as a condition for continuing his furlough which provided in part that Hubbard would not drink alcoholic beverages or take drugs and would be at home time set by his parents.

   
   

5. Hubbard's father, Geoffrey Hubbard, stated that Hubbard lived at the family home. Geoffrey Hubbard stated that Hubbard was drunk on August 29, August 30 and August 31, 1980. Hubbard's father further stated that Hubbard came home on September 12, 1980, grossly intoxicated at 7:15 p.m. after he was due under his contractual curfew at 4:30 p.m. After being told to stay at home, Hubbard left again at 8:30 p.m., returning again at 9:30 p.m. more intoxicated than when he had left. On September 18, 1980, Hubbard came home drunk at 9:00

   p.m. after he had been due at 8:30 p.m. After September 18, 1980, Geoffrey Hubbard contacted Horne, Hubbard's counselor, and advised Horne about Hubbard's drinking. Horne initiated the action to revoke Hubbard's furlough, which gave rise to this hearing.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Department of Health and Rehabilitative Services has the burden to show by substantial and competent evidence that Hubbard violated the terms of his furlough agreement. The Department has introduced the testimony of Hubbard's counselor and father regarding the instructions given Hubbard and Hubbard's actions.

   
   

7. The Department has custody of Hubbard pursuant to court order. The Department and Hubbard entered into a furlough agreement which specifically provided that Hubbard would obey the instructions of his counselor. His counselor instructed Hubbard not to drink alcoholic beverages. Subsequently, because of Hubbard's drinking such beverages, Hubbard executed a contract to avoid revocation of his furlough which specifically provided that he would not drink alcoholic beverages. The Department has shown by a preponderance of the evidence that Hubbard was instructed not to drink alcoholic beverages and that he was fully aware that his continuance on furlough was dependent upon his not drinking such beverages. The evidence further shows that Hubbard continued to drink and became intoxicated after being instructed not to by his counselor and after entering into a specific agreement not to drink. Hubbard violated the terms of his furlough, and said furlough was subject to revocation. The Department had good cause to revoke Hubbard's furlough and to return him to the Dozier School for Boys.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the revocation of the furlough of Bruce Warren Hubbard be approved, and that he be returned to the Dozier School for Boys for the remainder of his period of commitment to the Department's custody.

DONE and ORDERED this 14th day of January, 1981, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1981.

COPIES FURNISHED:

Jeffery B. Morris, Esquire Department of HRS

5920 Arlington Expressway Post Office Box 2417-F Jacksonville, Florida 32231

Bruce Warren Hubbard

c/o Hatton House, Cluster 1 Dozier School for Boys

Post Office Box 490 Marianna, Florida 32446

James Edwards

School Training Director Dozier School for Boys Post Office Box 490 Marianna, Florida 32446

Mr. and Mrs. Geoffrey Hubbard

212 Nancy Street

Daytona Beach, Florida 32014

Docket for Case No: 80-002002

Orders for Case No: 80-002002