STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN JACKSON, )

)

Petitioner, )

)

vs. ) CASE NO. 81-012

) STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted on March 3, 1981, at Florida State Hospital, Chattahoochee, Florida.

APPEARANCES

For Petitioner: John Lipinski, Esquire

1700 Northwest 7th Street, Suite 100

Miami, Florida 33125

For Respondent: Gerry L. Clark, Esquire

Florida State Hospital Chattahoochee, Florida 32324

ISSUE

The issue presented here concerns the jurisdiction of the Respondent State of Florida, Department of Health and Rehabilitative Services, to pass on the issue of whether the Petitioner, John Jackson, meets the definition of sex offender within the meaning of Chapter 917, Florida Statutes; it having been determined that the Department has exhausted all treatment for the Petitioner. Secondarily, this Recommended Order considers the question of whether the Petitioner can, through the process of this administrative hearing, controvert the clinical summary dated October 13, 1980, by challenging the findings of that report, even if it has been determined that the Department has exhausted all treatment for the Petitioner and the Department is without jurisdiction to enter a final order on the question of whether the Petitioner meets the definition of sex offender within the meaning of Chapter 917, Florida Statutes. Of particular interest on the secondary issue is that part of the report which indicates that the Petitioner still meets the definition of sex offender.

FINDINGS OF FACT

1. The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the Petition and

   this request was received by the Division of Administrative Hearings on January 5, 1981. Specifically, the Petition asked that a Subsection 120.57(1), Florida Statutes, hearing be conducted to consider the question of whether the Respondent State of Florida, Department of Health and Rehabilitative Services has exhausted all appropriate treatment for the Petitioner John Jackson, who was enrolled in one of the Respondent's sex offender programs at Florida State Hospital, Chattahoochee, Florida. The prayer for relief offered by the Petitioner was in keeping with the language of Section 917.20, Florida Statutes (1977), which states:

   
   

   . . . if the department returns an offender to the court because the department has determined that it has exhausted all treatment of the offender, the court shall remove the offender

   from the custody of the department.

   
   

2. A continuance of the formal hearing scheduled for January 30, 1981, was granted and the final hearing was eventually held on March 3, 1981.

   
   

3. At the commencement of the hearing, counsel for the Petitioner promoted a substantial change to the Petitioner's claim for relief. That change was one which conceded the dispute fashioned in the details of the "Petition for Administrative Hearing," in that the Petitioner and Respondent agree that the Respondent had exhausted all appropriate treatment for the Petitioner through the programs for sex offenders offered in the State of Florida. The Petitioner then attempted to amend his Petition to request that a final order be entered by the Secretary, Department of Health and Rehabilitative Services which decided if the Petitioner continued to meet the definition of sex offender found in Chapter 917, Florida Statutes. Additionally, the Petitioner, in the person of his counsel, attempted to amend the Petition to attack the details of the staff report of October 13, 1980, dealing with the status of the Petitioner's condition with particular emphasis on the finding that Jackson continued to he a sex offender.

   
   

4. The Respondent was opposed to the amendment on the ground of lack of jurisdiction on the part of the Respondent to consider these claims, it having been determined that the Respondent had exhausted treatment for the Petitioner and moreover, the Respondent objected to the change in the Petition which did not grant the Respondent sufficient notice to prepare to defend against the accusations. The Respondent's position was found to be meritorious and the reasons for that decision will be discussed in the Conclusions of Law section of this Recommended Order.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has authority to consider the matter of the Respondent's jurisdiction over the subject matter in controversy offered through the Petitioner's attempted amendment to his Petition. See Section 917.20, Florida Statutes (1977), and Section 917.011, Florida Statutes (1979).

   
   

6. Initially, this case was presented on the Petition of John Jackson challenging the Respondent's determination that it had exhausted all treatment for this patient who was being treated as a sex offender. At that point of the hearing, the Petitioner abandoned this challenge and by agreement with

   Respondent, made consideration of the question of whether the Respondent had exhausted treatment a moot point.

   
   

7. In substitution for the initial Petition, the Petitioner attempted, by amendment, to request that the agency head of the State of Florida, Department of Health and Rehabilitative Services, to wit, their Secretary, enter a final order speaking to the issue of whether the Petitioner continues to be a sex offender within the meaning of Chapter 917, Florida Statutes, and the related question of the staff report of the Florida State Hospital dated October 13, 1980, dealing with a conclusion that the Petition continues to meet the definition of sex offender and other matters.

   
   

8. A reading of Section 917.20, Florida Statutes (1977), 1/ which has application to this case, leads to the conclusion that there is a bifurcated responsibility between the Respondent and the committing court on the issues of exhaustion of treatment and classification of the patient as a sex offender. Final order authority on the question of exhaustion of treatment resides with the Department of Health and Rehabilitative Services, to the extent that the committing court is required to remove the offender from the custody of the Department when treatment has been exhausted. On the other hand, the question of whether the patient continues to meet the definition of sex offender is one which remains with the committing court at all times, and although the Respondent, by way of information, may offer its opinion on the classification issue at a time when it is determined that it has exhausted treatment for the patient, or in turn may respond to the committing court's requests that an opinion on classification be forthcoming; final order authority on the classification question i.e., definition, is the special province of the committing court. As a consequence, under the facts of this case, the Petitioner having agreed with the Respondent that treatment has been exhausted, a matter over which the Respondent has final order authority within the meaning of Chanter 120, Florida Statutes, the remaining question of whether the Petitioner continues to meet the definition of sex offender, per Chapter 917, Florida Statutes, must be brought before the committing court. The Respondent's preliminary determination and suggestion on the subject of classification is not the ultimate determination on that point, and it would not constitute final agency action within the meaning of Chapter 120, Florida Statutes.

Consequently, a challenge to the Respondent's comments in the October 13, 1980, report to the effect that the Petitioner continues to meet the definition of sex offender is a matter which should be considered in presentation before the committing court. It is, therefore,

RECOMMENDED:

That a final order be entered by the State of Florida, Department of Health and Rehabilitative Services, finding that it has exhausted all appropriate treatment for the Petitioner, John Jackson, and declining to review the related questions of whether the Petitioner continues to meet the definition of sex offender within the meaning of Chapter 917, Florida Statutes, and that matter and other determinations as made through the October 13, 1980, staff report of the Florida State Hospital, Chattahoochee, Florida.

DONE and ENTERED this 17th day of March, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1981.

ENDNOTE

1/ (1) The department shall cause the offender to be examined a minimum of once annually to determine the progress of treatment, and it shall file a written report of these examinations in the committing court not less than once a year.

(2) At any time after commitment, the department may file a written report with the committing court stating the facts which show that the offender's condition has improved to a degree that he no longer meets the definition of an offender or that the department has exhausted all appropriate treatment for the offender. The written report shall include information about the treatment received by such offender, a diagnosis of the offender's current condition, and recommendations made by the treatment staff. Upon receipt of the written report, the court shall set a hearing date of within 60 days and shall order the offender returned to the jurisdiction of the court. The offender shall not be detained in a jail prior to said hearing and shall not be detained after said hearing if returned to the department. The hearing shall follow the procedures as set forth in s. 917.18. The court may accept, in lieu of reports from experts, reports by the department staff members who treated the committed offender. If the court determines that the offender continues to present a present danger to others, it shall order his return to the department to be held under the previous commitment. However, if the department returns an offender to the court because the department has determined that it has exhausted all treatment for the offender, the court shall remove the offender from the custody of the department. If the court determines that the offender has improved to the extent that be no longer meets the definition of an offender, the court shall order him discharged from the custody of the department.

COPIES FURNISHED:

John Lipinski, Esquire 1700 N. W. 7th Street Suite 100

Miami, Florida 33125

Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324

Docket for Case No: 81-000012

Orders for Case No: 81-000012