Judges: WILLIAM E. WILLIAMS
Agency: Parole and Probation Commission
Latest Update: Mar. 27, 1984
Summary: Although the petition filed herein, on its face, seeks an administrative determination pursuant to Section 120.56, Florida Statutes, of the validity of respondent's Rule 23-21.02(46), Florida Administrative Code, the parties stipulated at the hearing held herein that the challenge is instead directed to Rule 23-21.02 (49)(c), Florida Administrative Code, a recently promulgated, identically worded, rule which became effective August 1, 1983. In challenging the above rule, petitioners assert that,
Summary: Although the petition filed herein, on its face, seeks an administrative determination pursuant to Section 120.56, Florida Statutes, of the validity of respondent's Rule 23-21.02(46), Florida Administrative Code, the parties stipulated at the hearing held herein that the challenge is instead directed to Rule 23-21.02 (49)(c), Florida Administrative Code, a recently promulgated, identically worded, rule which became effective August 1, 1983. In challenging the above rule, petitioners assert that, as Florida prisoners, they have all been transferred from lower to higher custody or level penal institutions in the state. In turn, they argue that such transfers may, in the future, be considered by the commission under the above rule to extend their previously established tentative or presumptive parole release dates (PPRD) or alternatively, to refuse to authorize their effective parole release dates (EPRD). Petitioners contend that, because institutional transfers do not, per se, indicate institutional misconduct and, in fact, can be initiated by the Department of Corrections at its discretion for reasons unrelated to conduct, the above rule is both arbitrary and capricious and in violation of the intent of Florida's statutory scheme for parole. Finally, petitioners assert that operation of the above rule violates their rights under the First Amendment of the United States Constitution. Respondent challenges petitioners standing in this proceeding and contends that the above rule is in accord with its statutory authority under Chapter 947, Florida Statutes. With respect to petitioners standing, respondent asserts that factually, petitioners have not been subject to any commission action under the above rule and that their claims are speculative because they merely address possible future action by the commission. Additionally, respondent asserts that the institutional transfers occurring in petitioners cases were not to higher custody or higher level institutions therefore petitioners have not, and will not, be affected by the challenged rule. Further, respondent contends that the challenged rule is a valid exercise of its authority to define and to consider unsatisfactory institutional conduct as a basis for modifying an established PPRD and in deciding whether to authorize an EPRD. Final hearing in this cause was scheduled for August 11, 1983 by notice of hearing dated July 15, 1983. At the final hearing, petitioners each testified and called as a witness Mr. Timothy J. Cunningham, a Classification Specialist Supervisor employed by the Department of Corrections at Union Correctional Institution. Petitioners offered Petitioner's exhibits 1 and 2, which were received into evidence. Respondent called Mr. Ray Howard, Field Services Supervisor for the Florida Parole and Probation Commission, as their only witness and offered no exhibits. Proposed findings of fact have been submitted by counsel for respondent and by petitioner Piccirillo, on behalf of all petitioners. To the extent that those proposed findings of fact are not contained in this order, they have been specifically rejected as being either irrelevant to the issues involved in this proceeding or as not having been supported by evidence of record.Admin rule defining unsatisfactory inst. conduct is valid as to petitioners due to their failure to est that they are substantially affected by the rule
More
83-2048.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GARY M. PICCIRILLO, DOUGLAS L. ) ADAMS AND GERALD HEMING, )
)
Petitioner, )
)
vs. ) CASE NO. 83-2048RX
) FLORIDA PAROLE AND PROBATION ) COMMISION, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Williams, held a public hearing in this cause on August 11, 1983, at Union Correctional Instituion, Raiford, Florida.
APPEARANCES
For Petitioners: Gary M. Piccirillo, Pro se
D.C. No. 044130
Lake City Community Corrections Center Lake Jeffrey Road
(Railroad St., 7th St.) Lake City, Florida 32055
Douglas L. Adams, Pro se
D.C. No. 031200
Union Correctional Institution Post Office Box 221
Raiford, Florida 32083
Gerald Hemming, Pro se
D.C. No. 084319
Union Correctional Institution Post Office Box 221
Raiford, Florida 32083
For Respondent: John C. Courtney, Esquire
Assistant General Counsel
Florida Parole and Probation Commission 1309 Winewood Boulevard, Building 6
Tallahassee, Florida 32301 ISSUE PRESENTED
Although the petition filed herein, on its face, seeks an administrative determination pursuant to Section 120.56, Florida Statutes, of the validity of respondent's Rule 23-21.02(46), Florida Administrative Code, the parties
stipulated at the hearing held herein that the challenge is instead directed to Rule 23-21.02 (49)(c), Florida Administrative Code, a recently promulgated, identically worded, rule which became effective August 1, 1983.
In challenging the above rule, petitioners assert that, as Florida prisoners, they have all been transferred from lower to higher custody or level penal institutions in the state. In turn, they argue that such transfers may, in the future, be considered by the commission under the above rule to extend their previously established tentative or presumptive parole release dates (PPRD) or alternatively, to refuse to authorize their effective parole release dates (EPRD). Petitioners contend that, because institutional transfers do not, per se, indicate institutional misconduct and, in fact, can be initiated by the Department of Corrections at its discretion for reasons unrelated to conduct, the above rule is both arbitrary and capricious and in violation of the intent of Florida's statutory scheme for parole. Finally, petitioners assert that operation of the above rule violates their rights under the First Amendment of the United States Constitution.
Respondent challenges petitioners standing in this proceeding and contends that the above rule is in accord with its statutory authority under Chapter 947, Florida Statutes. With respect to petitioners standing, respondent asserts that factually, petitioners have not been subject to any commission action under the above rule and that their claims are speculative because they merely address possible future action by the commission. Additionally, respondent asserts that the institutional transfers occurring in petitioners cases were not to higher custody or higher level institutions therefore petitioners have not, and will not, be affected by the challenged rule. Further, respondent contends that the challenged rule is a valid exercise of its authority to define and to consider unsatisfactory institutional conduct as a basis for modifying an established PPRD and in deciding whether to authorize an EPRD.
Final hearing in this cause was scheduled for August 11, 1983 by notice of hearing dated July 15, 1983. At the final hearing, petitioners each testified and called as a witness Mr. Timothy J. Cunningham, a Classification Specialist Supervisor employed by the Department of Corrections at Union Correctional Institution. Petitioners offered Petitioner's exhibits 1 and 2, which were received into evidence. Respondent called Mr. Ray Howard, Field Services Supervisor for the Florida Parole and Probation Commission, as their only witness and offered no exhibits.
Proposed findings of fact have been submitted by counsel for respondent and by petitioner Piccirillo, on behalf of all petitioners. To the extent that those proposed findings of fact are not contained in this order, they have been specifically rejected as being either irrelevant to the issues involved in this proceeding or as not having been supported by evidence of record.
FINDINGS OF FACT
Petitioners and Respondent have stipulated to the following facts:
The three petitioners are inmates at Union Correctional Institution, Raiford, Florida, in the custody of the Department of Corrections.
All three of the petitioners have had their PPRD's established by the respondent-commission as follows:
In June of 1982, Mr. Piccirillo's PPRD was established by the commission to be September 30, 1986.
In January of 1982, Mr. Adams' PPRD was established by the commission to be November 11, 1991.
In December of 1982, petitioner Hemming's PPRD was established by the commission to be September 29, 1993.
Subsequent to the commission having established their PPRD's, all three of the petitioners have been transferred from one Florida penal institution to another state institution as follows:
Mr. Piccirillo was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1982.
Mr. Adams was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1932.
Mr. Hemming was transferred from Avon Park Correctional Institution to Union Correctional Institution on February 16, 1983.
The petitioners were not transferred to Union Correctional Institution because of any unsatisfactory institutional conduct at their former institutions.
Petitioners are currently scheduled by the commission for biennial interviews to review their established PPRD's as follows:
Mr. Piccirillo is scheduled for a biennial interview in March of 1984.
Mr. Adams is scheduled for a biennial interview in October of 1983.
Mr. Hemming is scheduled for a biennial interview in September of 1984.
The following additional findings are made from evidence presented at the hearing:
The respondent-commission has not made a finding that any of the petitioner's institutional conduct has been unsatisfactory under the challenged rule nor has respondent extended their PPRD's or refused to authorize their EPRD's.
In applying the challenged rule, the fact that an inmate has been transferred to a higher custody or higher level institution is only considered to be unsatisfactory institutional conduct where the commission receives documentation evidencing institutional misconduct as the basis for the transfer.
Petitioners transfers from other institutions to Union Correctional Institution would not be considered unsatisfactory institutional conduct under the challenged rule because there is no documentation of institutional misconduct which led to these institutional transfers.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.56, Florida Statutes.
In reviewing a previously established PPRD on biennial or effective review the commission is authorized to consider institutional progress reports and disciplinary reports and may modify a PPRD or refuse to authorize an EPRD upon finding that an inmate's institutional conduct has been unsatisfactory. Sections 947.16(4), 947.174(1)(3), and 947.1745(1), Florida Statutes. Pursuant to Section 947.174(5)(a), Florida Statutes, the commission is required to "[d]efine what shall constitute an unsatisfactory institutional record." Pursuant to this authority the commission has adopted the challenged rule which provides:
23-21.02 Definitions.
* * *
(49) Unsatisfactory Institutional Conduct means conduct which:
* * *
(c) results in a reclassification action (raising custody classification, transferring to a higher custody or level institution or transferring to closed management status)
Section 120.56(1), Florida Statutes, provides, in pertinent part, that:
Any person substantially affected by a
rule may seek an administrative determination of the invalidity of the rule on
the ground that the rule is an invalid exercise of delegated legislative authority. (Emphasis added).
A party challenging the validity of an existing rule bears the burden of proving his standing to maintain such a challenge when, as here, such standing is made an issue in the proceeding. Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA 1979). In order to sufficiently establish standing to challenge a rule, a Petitioner must show "... that the rule has a real and immediate affect upon one's case as well as injury in fact...." All Risk Corporation v. Department of Labor and Employment Security, 413 So.2d 1200, 1202 (Fla. 1st DCA 1981)
Petitioners have not been, and are not now, affected by the challenged rule in that there has been no finding by the commission that their institutional transfers constitute unsatisfactory institutional conduct and, likewise, there has been no modification of their PPRD's or refusal to authorize their EPFD's. Conversely, it affirmatively appears that because petitioners institutional transfers were not based on any evidence of misconduct, the challenged rule could not result in any modification of their tentative parole release dates. Petitioners' claim that they might, at some future date, have their tentative parole release dates modified because of unsatisfactory institutional conduct is so speculative and conjectural as to be insufficient to establish standing to challenge the rule. Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978).
Petitioners having failed to establish that they are "substantially affected" sufficiently to allow them to maintain a challenge to the subject rule, the relief sought by Petitioners should be, and the same is hereby denied, and the Petition dismissed.
DONE and ENTERED this 27th day of March, 1984, in Tallahassee, Florida.
WILLIAM E. WILLIAMS
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 27th day of March, 1984.
COPIES FURNISHED:
Gary M. Piccirillo
Lake City Community Corrections Center
Lake Jeffrey Road (Railroad St., 7th St.) Lake City, Florida 32055
Douglas L. Adams and Gerald Hemming
Union Correctional Institution Post Office Box 221
Raiford, Florida 32083
John C. Courtney, Esquire Assistant General Counsel Florida Parole and
Probation Commission 1309 Winewood Boulevard,
Building 6
Tallahassee, Florida 32301
Carroll Webb, Exec. Dir. Administrative Procedures
Committee
120 Holland Building Tallahassee, Florida 32301
Liz Cloud, Chief
Bureau of Administrative Code 1802 The Capitol
Tallahassee, Florida 32301
Docket for Case No: 83-002048RX
Orders for Case No: 83-002048RX
| Issue Date |
Document |
Summary |
|
Mar. 27, 1984 |
DOAH Final Order
|
Admin rule defining unsatisfactory inst. conduct is valid as to petitioners due to their failure to est that they are substantially affected by the rule
|
