STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NICHOLOS SOLOMINI, )

)

Petitioner, )

)

vs. ) CASE NO. 83-334

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in West Palm Beach, Florida, on March 29, 1983, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: Ms. Joan Solomini

3017 Grove Road

Boynton Beach, Florida 33435

For Respondent: K. C. Collette, Esquire

District IX Legal Counsel Department of Health and

Rehabilitative Services

111 Georgia Ave., 3rd Floor West Palm Beach, Florida 33401

This matter arose on Petitioner's request for review of his transfer to a more restrictive facility within Respondent's Youth Services Program The Hearing Officer established April 7, 1983, as the date by which proposed findings of fact were to be filed. None having been received, this Recommended Order is now entered.

FINDINGS OF FACT

1. Petitioner is a child assigned to Respondent's Youth Services Program. He was attending the Palm Beach Marine Institute/Florida Ocean Science Institute (FOSI) and living at home prior to January 13, 1983, when he was transferred to the Youth Development Center (YDC) in Okeechobee, a more restrictive facility.

   
   

2. Petitioner was charged with violating his supervision agreement with Respondent by failing to attend classes at FOSI on January 4, 5, 6 and 7, 1953. A hearing before Respondent's program specialist was held where Petitioner was found guilty of the alleged violation and ordered to be transferred to the YDC.

   
   

3. Petitioner concedes he was absent without cause in November, 1982. He had further absences in December due to illness where the required medical excuse was not timely furnished. As a result of the absences and apparent personality conflict with his instructor, Petitioner was told not to return to

   FOSI by an official of that facility on January 3, 1983. Therefore, Petitioner's absences on January 4, 5, 6 and 7, 1983, were not in violation of his supervision agreement.

   
   

   CONCLUSIONS OF LAW

   
   

4. Subsection 959.011(3), Florida Statutes (1981), pertaining to the responsibility and the authority of the Department of Health and Rehabilitative Services provides in part:

   
   

   The department shall have exclusive supervisory care, custody, and active control of persons committed to it.

   Pursuant to such regulations as the department may provide, the department is authorized to transfer persons from one facility or program to another facility or program within the department. . . .

   
   

5. Subsection 10H-9.02(1), Florida Administrative Code, provides:

   
   

   A transfer of a child from one treatment program to another treatment program may be accomplished in order for the child to be placed in a more appropriate placement consistent with his or her needs.

6. Subsection 10H-9.06(1), Florida Administrative Code, provides: At the time a hearing decision is announced,

   the child will be informed that he or she may, without fear of prejudice or retaliation request a formal hearing as set forth in the Administrative Procedure Act. The child's request shall not act to stay the accomplishment of the transfer or furlough revocation.

   
   

7. The above provisions provide authority for transfer action and review procedures to insure that such action is appropriate. However, Petitioner has been successful in meeting goals of the YDC and does not wish to return to FOSI. Rather, he seeks to have his record purged of the violation findings.

RECOMMENDATION

In consideration of the foregoing, it is RECOMMENDED:

That Respondent enter a Final Order correcting Petitioner's record to reflect that his transfer to the Youth Development Center was not based on violation of his supervision agreement or other misconduct.

DONE and ENTERED this 13th day of April, 1983, in Tallahassee, Florida.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1983.

COPIES FURNISHED:

Ms. Joan Solomini 3017 Grove Road

Boynton Beach, Florida 33435

K.C. Collette, Esquire District IX Legal Counsel Department of Health and Rehabilitative Services

111 Georgia Ave., 3rd Floor West Palm Beach, Florida 33401

David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-000334

Orders for Case No: 83-000334