STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN FRANCIS POWERS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0692RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case on April 18, 1988, at Lake Correctional Institution, Clermont, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing the parties were represented as follows:

For Petitioner: John Francis Powers, pro se No. A486958

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711-0099

For Respondent: Ann Cocheu, Esquire

Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050

ISSUES AND INTRODUCTION

This is a rule challenge proceeding pursuant to Section 120.56, Florida Statutes, in which the Petitioner, an inmate confined at Lake Correctional Institution, has filed a petition seeking a determination that Rule 33-11.017, Florida Administrative Code, is an invalid exercise of delegated legislative authority. The challenged rule governs awards of administrative gain time, which is one of several types of statutorily authorized gain time.

At the hearing the Petitioner testified on his own behalf and requested that official recognition be taken of several applicable statutory and rule provisions. The request for official recognition was granted. The Respondent presented the testimony of two witnesses. At the conclusion of the hearing the parties requested, and were granted, 20 days within which to file their proposed final orders. Thereafter, the Petitioner requested an extension of time. By order issued May 12, 1988, the parties were allowed until June 3, 1988, within which to file their proposed final orders. The Petitioner has not filed a proposed final order. The Respondent filed a timely proposed final order containing proposed findings of fact and conclusions of law. All proposed findings of fact are addressed in the Appendix which is attached to and incorporated into this final order.

FINDINGS OF FACT

Based on the parties' stipulations, on the matters of which official recognition was taken, and on the evidence presented at the hearing, I make the following findings of fact.

1. The Petitioner is an inmate at Lake Correctional Institution.

   
   

2. The Florida Legislature enacted Section 944.276, Florida Statutes (1987), effective February 1987, to provide for "administrative gain time" awards when prison population reached 98 percent of maximum capacity. Inmates serving mandatory minimum sentences, habitual offenders, and those convicted of certain violent personal crimes were not eligible for administrative gain time.

   
   

3. Petitioner is not serving such a mandatory minimum sentence or other sentence which would statutorily exclude him from consideration for administrative gain time.

   
   

4. Respondent enacted emergency Rule 87-1 to implement Section 944.276, Florida Statutes (1987). Subsequently, Respondent promulgated Rule 33-11.017, Florida Administrative Code, effective July 7, 1987, to implement administrative gain time.

   
   

5. Although Respondent awarded administrative gain time in May 1987, Petitioner did not receive an award for May 1987. He does not allege deprivations for any other time periods.

   
   

6. Petitioner was sentenced to the Department of Corrections on May 7, 1987, although he remained in the physical custody of the Pinellas County Jail until July 1987.

   
   

7. Petitioner was awarded incentive gain time for May 1987, but the time was not credited until June 1987. At the time that administrative gain time was awarded in May 1987, Petitioner had not been awarded any incentive gain time, but Petitioner was in the process of earning incentive gain time.

   
   

8. Section 944.276(1), Florida Statutes (1987), requires that administrative gain time be awarded equally "to all inmates who are earning incentive gain time." Rule 33-11.017(1), Florida Administrative Code, tracks the statutory language, "earning incentive gain time." However, Rule 33-11.017 (2)(e), Florida Administrative Code, contains the following definition, which is not found in the statute:

   
   

   Earning incentive gain time is defined for the purposes of this rule as having had any incentive gain time credited and applied for the previous month, and not having been disqualified pursuant to 33-11.0065 during the current month and prior to implementation of the administrative gain time award.

   
   

9. Rule 33-11.0065, Florida Administrative Code, deals with the subject of incentive gain time. Petitioner is not challenging that rule. Rule 33-11.0065 provides, among other things, that inmates eligible for incentive gain time include "those in the reception process or in the custody of another agency while actively serving a Florida sentence. "

10. Incentive gain time under Rule 33-11.0065, Florida Administrative Code, is awarded on a calendar month basis. Determinations as to whether an inmate receives incentive gain time are made at the conclusion of each calendar month. To receive such an award, an inmate must be rated above satisfactory for the entire month and must not have been found guilty of any disciplinary violations. The majority of inmates do not receive incentive gain time each month.

    
    

11. The purpose of incentive gain time is to provide Respondent with a management tool to encourage good behavior by inmates. A disciplinary report any time during the month, even on the final day of a calendar month, disqualifies an inmate from incentive gain time for that entire month. Incentive gain time awards are not vested or prospective during the month, but are assessed only after the conclusion of each calendar month. Such awards are discretionary, not mandatory.

    
    

12. Rule 33-11.0065(4), Florida Administrative Code, provides that incentive gain time will be "processed at the end of each month or upon receipt of progress reports on inmates housed by other agencies." Some inmates sentenced to the Department, but not actually coming into its custody in the same month, have received incentive gain time from the date of sentencing. That occurs when other agencies forward superior reports on prisoners in the agencies' custody. Petitioner was awarded incentive gain time for May in June and for June in July based on reports from Pinellas authorities.

    
    

13. Unlike incentive gain time, administrative gain time awards are made on an "as needed" basis rather than a strict calendar basis. Administrative gain time is primarily for the convenience of the Department as a tool for keeping the prison population below 98 percent of capacity. Since its inception, administrative gain time has been awarded at least once, and sometimes twice, each month. Such awards have not been on any set date.

    
    

14. Awards of incentive gain time are, in the normal course of events, credited to an inmate by no later than the twelfth day of the month following the month in which the incentive gain time was earned. Awards of incentive gain time are programmed into the Department's computer. When decisions are made to award administrative gain time, the computer credits those awards to all inmates who have had incentive gain time posted from the immediately preceding month. Since the administrative gain time determinations can come at any time during the calendar month and since there is no guarantee that an inmate will rate above average all month for an incentive award, only inmates who have been awarded incentive gain time for behavior in the immediately preceding calendar month are deemed eligible by the Department for an award of administrative gain time.

    
    

    CONCLUSIONS OF LAW

    
    

    Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sec. 120.56, Fla. Stat.

    
    

16. The Petitioner is a prisoner as defined by Section 944.02(5), Florida Statutes, and is specifically authorized by Section 120.52(12)(d), Florida Statutes, to challenge the validity of existing rules that substantially affect

    him. The Petitioner in this case is substantially affected by Rule 33-11.017, Florida Administrative Code.

    
    

17. The term "invalid exercise of delegated legislative authority" is defined as follows at Section 120.52(8), Florida Statutes:

    
    

    1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is

       an invalid exercise of delegated legislative authority if any one or 441 more of the following apply:

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth

          in s. 120.54;

       2. The agency has exceeded its grant of rule- making authority, citation to which is required by s. 120.54(7);

       3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7)

       4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

       5. The rule is arbitrary or capricious.

          
          

18. Section 944.276(1), Florida Statutes (1987), reads as follows, in pertinent part:

    
    

    (1) Whenever the inmate population of the correctional system reaches 98 percent of lawful capacity as defined in s. 944.598, the secretary of the Department of Corrections shall certify to the Governor that such condition exists. When the Governor acknowledges such certification in writing, the secretary may grant up to a maximum of 60 days administrative gain-time equally to all inmates who are earning incentive gain-time (emphasis added)

    
    

19. The basic argument advanced by the Petitioner is that the portion of the rule that defines the phrase "earning incentive gain time" changes the ordinary meaning of those words. Petitioner also argues that the changed meaning is illogical and is at variance with the meaning of the statutory language implemented by the challenged rule. In essence, the Petitioner is asserting that the rule modifies or contravenes the specific provisions of law implemented within the meaning of Section 120.52(8)(c), Florida Statutes (1987).

    
    

20. The Respondent argues that the challenged rule, especially the portion of the rule that defines the phrase "earning incentive gain time," is within the scope of the Department's discretion under the broad rulemaking authority delegated by the Legislature. In this regard, the Department relies on such cases as Florida Beverage Corporation v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1974), and Department of Professional Regulation, Board of Medical Examiners v. Durrani, 445 So.2d 515 (Fla. 1st DCA 1984).

21. More applicable to the facts in this case are decisions such as School Board of Marion County v. PERC, 330 So.2d 770 (Fla. 1st DCA 1976) , State, Dept. of Insurance v. Insurance Services Office, 434 So.2d 908 (Fla. 1st DCA 1983), and State, Dept. of Business Reg., Div. of Alcoholic Beverages and Tobacco v. Salvation Limited, Inc., 452 So.2d 65 (Fla. 1st DCA 1984), all of which emphasize that a rule may not modify or contravene a statutory provision. The Salvation decision, supra, succinctly states, at page 66:

    
    

    It is axiomatic that an administrative rule cannot enlarge, modify or contravene the provisions of a statute. Seitz v. Duval County School Board, 366 So.2d 119, 121 (Fla. 1st DCA 1979); State Department of Health and Rehabilitative Services v. McTigue, 387 So.2d

    454 (Fla. 1st DCA 1980). A rule which purports to do so constitutes an invalid exercise of delegated legislative authority. Nicholas v. Wainwright, 152 So.2d 458, 460 (Fla. 1963)

    
    

    The Salvation decision, supra, also reiterates the well established rule of statutory construction that, absent some legislative indication of a different meaning, the words in a statute should "be given their plain and ordinary meaning." See also Gasson v. Gay, 49 So.2d (Fla. 1950); Gaulden v. Kirk, 47 So.2d 567 (Fla. 1950). Finally, the Marion County case, supra, notes that administrative agencies lack authority to "rewrite a statutory scheme."

    
    

22. The critical statutory words in this case are the words "are earning." The dictionary definition of the word "are" reads as follows: "the plural and second person singular, present indicative, of be." Webster's New Twentieth Century Dictionary Of The English Language, Unabridged (1980 Ed), p. 99. As used in the subject statute in conjunction with the word "earning," the word "are" communicates the notion of the present status of earning; i.e., an existing or ongoing status, as distinguished from a previous or past status. As used in the subject statute, the words "are earning" clearly refer to inmates who, on the date of an award of administrative gain time, are on that very same day in the status of earning incentive gain time.

    
    

23. As previously noted, Rule 33-11.017(2)(e) , Florida Administrative Code, contains the following language:

Earning incentive gain time is defined for the purposes of this rule as having had any incentive gain time credited and applied for the previous month, and not having been disqualified pursuant to 33-11.0065 during the current month and prior to implementation of the administrative gain time award. (emphasis added)

The portion of the above-quoted rule definition that begins with the words "not having been disqualified," is consistent with the plain meaning of the statutory words "are earning." However, the underscored portion of the language quoted immediately above is inconsistent with the plain meaning of the statutory words "are earning," because that portion of the rule adds a requirement not found in the statute. The statutory requirement addresses only the present status. The

underscored rule language adds a requirement based on past or prior status. This additional requirement with respect to the prior month is not found in the statute. Accordingly, the portion of Rule 33-11.017(2)(e), Florida Administrative Code, underscored above enlarges, modifies, or contravenes the specific provisions of the law implemented and is, for that reason, an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8), Florida Statutes.

For all of the foregoing reasons, it is ORDERED:

That the portion of Rule 33-11.017(2)(e) , Florida Administrative Code, reading "having had any incentive gain time credited and applied for the previous month, and" is an invalid exercise of delegated legislative authority.

DONE AND ORDERED this 27th day of June 1988, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 27th day of June 1988.

APPENDIX TO FINAL ORDER IN CASE NO. 88-0692RX

The following are my specific rulings on the proposed findings of fact submitted by the parties.

Findings submitted by the Petitioner:

(None)

Findings submitted by the Respondent:

All of the proposed findings of fact submitted by the Respondent have been accepted and incorporated into the findings of fact in the recommended order, except as specifically noted below:

Paragraph 15: To the extent that several sentences in paragraph 15 imply or state that the manner in which administrative gain time is credited is the only logical way to credit such gain time, those implications or statements are rejected as constituting conclusions not warranted by the evidence.

COPIES FURNISHED:

Mr. John Francis Powers No. A486958

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711-0099

Ann Cocheu, Esquire Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol

Tallahassee, Florida 32399-1050

Louis A. Vargas General Counsel

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Richard Dugger, Secretary Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Liz Cloud, Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 2399-1300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 88-000692RX

Orders for Case No: 88-000692RX