STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM JOEL KEEL, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2750RE

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Consistent with the Notice of Hearing furnished the parties in this case by the undersigned on July 30, 1986, a hearing was held in this case before Arnold

1. Pollock, a Hearing Officer with the Division of Administrative Hearings, at the Union Correctional Institution, Raiford, Florida, on August 5, 1986. The issue for consideration is whether Respondent's Emergency Rule 33ER 86-3 is a valid exercise of delegated legislative authority.

   
   

   APPEARANCES

   
   

   For Petitioner: William Joel Keel, pro se B-060268

   Union Correctional Institution Post Office Box 221

   Raiford, Florida 32083

   
   

   For Respondent: Julia Forrester

   Assistant Attorney General Department of Legal Affairs The Capitol

   Tallahassee, Florida 32301 BACKGROUND INFORMATION

   On July 22, 1986, the Petitioner filed a Petition for Determination of Validity of Emergency Rule relating to Respondent's Emergency Rule 33ER 86-3, dealing with supervised community release. Petitioner contends that the rule is invalid because (a) an emergency does not or did not exist at the time of the implementation of the emergency rule; (b) that the rule is fatally flawed in that the statement of immediate danger is inadequate; (c) that the rule is fatally defective because the rule supersedes other forms of release authorized by statute; (d) that the rule is discriminatory in its present form; and (e) that it is arbitrary, capricious and an abuse of delegated legislative authority. The file was forwarded to the Division of Administrative Hearings where on July 29, 1986, the director assigned the case to the undersigned for the conduct of the hearing.

   
   

   At the hearing, Petitioner presented the testimony of Wilson Curtis Bell, Assistant Secretary for Programs, Department of Corrections, and requested that

   the Hearing Officer take official recognition of Section 120.549, Florida Statutes (1985), Section 944.598, Florida Statutes, and Section 945.091, Florida Statutes. Official recognition was taken as requested. Respondent also presented Mr. Bell as its own witness and introduced no documentary evidence.

   
   

   Subsequent to the hearing, the parties submitted proposed findings of fact which have been carefully evaluated and considered in the preparation of this order. The ruling as to acceptability of each proposed finding of fact is contained in the appendix attached hereto.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner, William Joel Keel, is an inmate at the correctional institution in Raiford, Florida. The Union Correctional Institution is a confinement facility operated by the Respondent, Department of Corrections.

      
      

   2. Section 945.091, Florida Statutes, permits the Respondent to adopt rules and regulations which modify the limits of an inmate's confinement under specified conditions.

      
      

   3. In January 1986, the figures of the statistics of the Department of Corrections reflect that there were approximately 1300 new commitment intakes per month. As the year 1986 progressed up through the months of April and May, this rate went up to approximately 1400 to 1600 per month, and in June, the figure stood at 1680 new commitment intakes; a new record. This record, however, has been broken since that time with a monthly intake of 1700. This large number of intakes created a terrible strain on the system which at the time had reached the federal standards and the state cap on inmate strength of

      98 percent. These caps are placed on inmate strength as an effort to reduce the extreme safety and security problems created by inmate overcrowding.

      
      

   4. Because there was no new staff assigned to the Department of Corrections during the period of this increase, the staff/inmate ratio decreased as the hot summer months approached with the pressure that the climate imposes. Both interior and perimeter security of the various institutions within the Department of Corrections became more and more strained. The stress on staff caused an increase of absenteeism and illness. In addition, during this period of increased temperature and the concomitant stress related thereto, assaults and escapes become a greater and greater problem.

      
      

   5. In June 1986, the inmate population in the Florida prison system went up to 99 percent, a figure approved by the Florida Legislature due to a change brought about by an automated accounting system for prisoners.

      
      

   6. The achievement of the 99 percent plus prison population constituted an "emergency" due to overcrowding. As a result, it became obvious that there was a need to increase the number of inmates eligible for pre-expiration of sentence release. Consistent therewith was the need to establish a fair and objective way of placing inmates into this pre-release program that would protect the public. It was determined necessary to screen out from participation in the program certain prohibited types of inmates such as sex offenders unless they have been cleared and determined to be harmless. Up to the point of this determination, there appeared to be no substantial or valid guidelines.

      
      

   7. Another intent of the framers of this emergency rule was the desire to set up a procedure to remove inmates placed into the pre-release program from the program for cause in accordance with due process and constitutionality. It

      was deemed necessary to make clear within the parameters of the program and within the instructions for the program what had to be done and how it was to be accomplished. Nonetheless, the overriding consideration which constituted the "emergency" situation was the overpopulation in the prison system.

      
      

   8. As a result, the Department of Corrections in July 1986 promulgated and published its Emergency Rule 33ER 86-3 dealing with supervised community release which rule was to take effect upon being filed with the Department of State. This rule provided that all inmates who are within 90 days of their release date will be eligible for placement on supervised community release if they meet certain specified requirements. The emergency rule listed as the basis therefor, "this emergency rule is necessary to protect the health, safety and welfare of the people of the State of Florida by providing criteria that the inmates to be placed in supervised community release must meet to help assure the safety of the public." It goes on also to indicate that the rule is necessary to prescribe appropriate sanctions for inmates within the program in the event they violate the terms and conditions of the release agreement.

      
      

   9. The program provides that the initial process is for the staff within the Department of Corrections to screen all inmates within 90 days of the end of their sentence. It was envisioned as an extension of the work release program already existing. It is for that reason that only those on or eligible for work release can participate in this new program. This is consistent with the statutory mandate to include in pre-release programs only trustworthy inmates.

      
      

   10. Inmates are also screened to ensure that they have demonstrated this trustworthiness by performing well in the more restrictive work release program. Other methods of demonstrating trustworthiness and eligibility is for the inmate to invest time in self-improvement projects such as the GED Program and to have through his past practice, shown that he will return to the prison setting at night.

       
       

   11. This screening is done monthly of all inmates with a temporary release date of 120 days in the future. By so doing, this gives the staff 30 days to develop a plan for the individual inmate to ensure a stable environment for the inmate to go to.

       
       

   12. Prior to the implementation of Chapter 86-46, Laws of Florida, the statutory authority for the current program, there was no provision for the program in issue. As soon as this law was passed the legal staff within the Department of Corrections prepared the instant emergency rule as soon as possible. Had they not been able to do an emergency rule and had the regular rulemaking process been necessary, it is most likely that they would not have had established criteria and guidelines to apply to those who had to be released due to the fact that the prison population had reached the statutory cap. In fact, it was shown that state attorneys would not cooperate with the Department of Corrections and process violations of the program unless there were specific guidelines contained therein, and, since it was necessary to reduce the inmate population, it was therefore necessary to utilize the emergency role process. With that in mind, the safety of the public into which these inmates would be released was the primary concern and generated the need to ensure that only qualified and safe inmates were released.

       
       

   13. Under the new statute and the emergency rule, 1125 inmates have been released as of the date of the hearing. Approximately 750 inmates are in the

       program at any given time. As a result of the implementation of this program, the prison population has dropped and remained within the new 99 percent of capacity state cap.

       
       

   14. Experience with the programs so far has shown that the inmates in the program have been guilty of only minor violations such as assault on witnesses, DWI, simple assault, and larceny. And all of these offenses came up after implementation of the emergency rule.

       
       

   15. In the case of misconduct by a released inmate which does not result in immediate charges and incarceration, such as leaving the county where placed or the state, the disciplinary team from the Department of Corrections will evaluate the inmate and impose the penalty. These penalties could include removal of gain time while still remaining within the program up to removal from the program and loss of gain time.

       
       

   16. Conditions of enrollment in the program include, as to the inmate, that he (a) stay in the area where assigned; (b) refrain from the use of drugs;

       (c) comply with instructions given; (d) pay court costs imposed; and (e) pay a

       $30 a month fee to the Department of Corrections to cover administrative costs.

       
       

   17. Though the emergency rule appears to be working satisfactorily, the Department of Corrections is in the process of regular rulemaking to adopt a permanent rule identical to the emergency rule in issue here.

       
       

       CONCLUSIONS OF LAW

       
       

   18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceeding.

       
       

   19. Petitioner contests the validity of the current emergency rule on the basis that an emergency does not now exist nor did it exist at the time of promulgation as defined in Section 120.54(9)(a), Florida Statutes. What Petitioner apparently overlooks is that the Department of Corrections' population does not normally consist of demonstrated law abiding citizens who can be relied upon to comport themselves in a civilized and well disciplined fashion. By the very nature, prisoners within the Department of Corrections have demonstrated that sort of aberrant and antisocial behavior which requires their incarceration in a secure facility specifically for the purpose of keeping them away from the general public.

       
       

   20. History over many years has indicated that these miscreants, as many may be classified, have a propensity toward antisocial behavior and require severe and at times extreme security measures even in the confinement facility to promote the welfare of the general prison population much less the civilian population outside the prison. When the Legislature of the State of Florida determines that an inmate population in excess of 99 percent of capacity is excessive, the Department of Corrections has no alternative but to provide a method of relieving the overcrowded conditions indicated by this population statistic. The alternatives to arrive at this solution are either the construction of additional prison space or the reduction of the prison population. Since the former is impracticable and cannot be readily accomplished, obviously the latter is the only reasonable avenue of redress in the short term. This being so and accepting the potential as described by Mr. Bell for violence within the prison system if the overcrowding is not relieved, Department of Corrections' officials have no choice but to release inmates into the civilian population. Knowing the propensity of these inmates toward

       antisocial behavior, they would be worse than derelict in the accomplishment of their function if they fail to ensure some reasonable method for the selection of those individuals least likely to create a problem and to ensure a method for return of these individuals in the event a problem is created. In light of the above, it cannot be said reasonably that the Department of Corrections has failed to establish that "immediate danger to the public health, safety or welfare exists."

       
       

   21. Petitioner next contests the rule on the basis that the statement "for finding an immediate danger" is inadequate and insufficient. It would be unreasonable to expect the framers of the emergency rule to elaborate in gross detail the specific reasons for the finding of immediate danger. It is sufficient that a general statement outlining the need for the emergency rule and the finding of immediate danger be made and such was done here.

       
       

   22. Petitioner also attacks the emergency rule on the grounds that the statement "for finding an immediate danger" is inadequate and insufficient under its enabling statute. Section 120.54(9)(a), Florida Statutes, at subparagraph

1. provides that if an agency finds that an immediate danger requires emergency action, it may adopt an emergency rule provided that. . .

   
   

   "the agency publishes in writing at the

   time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public, safety, or welfare and its reasons for concluding that the

   procedure used is fair under the circumstances."

   
   

   1. Admittedly, the statement contained in the emergency rule does not in gross detail explain the immediate danger supporting the rule. It does, however, outline clearly that the purpose of the rule is to assure the safety of the public in relation to supervised community release of inmates and this is, in general, an adequate statement.

      
      

   2. A third basis for attack on this rule by Petitioner is that this rule has the effect of superseding other forms of release authorized by the statute and existing rules. The Department of Corrections, as was pointed out in the findings of fact, has a work release program already existing. The instant rule does not supersede this work release program but in fact and instead, expands upon it, making available pre-release to additional people who might not be enrolled in another program. Petitioner has demonstrated nothing to indicate that either in theory or in practice selection of inmates for the program is unfair and improperly exclusionary.

      
      

   3. Petitioner further alleges that the rule is discriminatory in that it excludes most prisoners [with] 90 days and less of incarceration from other types of release by statute because of the existence of said rule. Petitioner showed no evidence that this is true, and it is mere speculation on his part. Individuals involved in participation in this program are on a supervised community release program which removes them from the prison setting entirely. They live outside the prison setting and are not required to return in the evenings as are personnel in other types of work release programs. It is impossible to conclude reasonably that this rule has a discriminatory effect by loosening the opportunity for an inmate's release from a confinement institution.

   4. Finally, Petitioner contends that the rule is arbitrary, capricious and an abuse of delegated legislative authority in that it prevents the prisoner from earning gain time from participating in community release or basic release because the rule supersedes or impairs other rules and is without statutory authority. This allegation is pure obfuscation. It is difficult to understand how this Petitioner could contend that a rule which permits inmates who have demonstrated their trustworthiness and their eligibility for enrollment in a pre-release program less severe and less restrictive than any other existing within the system are being prejudiced by the implementation of this rule. The evidence presented by both sides clearly demonstrates a valid rational reason for the enactment of the rule and clearly establishes its consistence with the legislative authority upon which it is based.

      
      

   5. On the basis of the above findings of fact and conclusions of law, it is, therefore

ORDERED that William Joel Keel's Petition for the Determination of the Validity of an Emergency Rule 33ER 86-3 be dismissed.

DONE and ORDERED in Tallahassee, Florida, this 19th day of August 1986.

ARNOLD H. POLLOCK

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 19th day of August 1987.

APPENDIX TO FINAL ORDER IN CASE NO. 86-2750RE

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties in this case.

Rulings On Findings Of Fact Submitted By Petitioner

1. Accepted in Finding of Facts 3 - 8.

2. Accepted in Finding of Fact 8.

3. Rejected as inconsistent with the terms of the rule.

Rulings On Findings Of Fact Submitted by Respondent

1. Adopted in Finding of Facts 2, 8, and 12.

2. Adopted in Finding of Facts 3 - 8.

3. Adopted in Finding of Fact 3.

4. Adopted in Finding of Fact 4.

5. Adopted in Finding of Fact 6.

6. Adopted in Finding of Facts 8 - 10.

COPIES FURNISHED:

William Joel Keel B-060268

Union Correctional Institution

P. O. Box 221

Raiford, Florida 32083

Julia Forrester

Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Louis A. Vargas General Counsel

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Louie L. Wainwright Secretary

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Carroll Webb, Exec. Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules Of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk Of The Division Of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court Of Appeal, First District, or with the District Court Of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 86-002750RE

Orders for Case No: 86-002750RE