STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM VAN POYCK, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2292RP

) DEPARTMENT OF CORRECTIONS, )

)

Respondent, )

)

and )

)

ROBERT DAVID ROY, )

)

Intervenor. )

)

FINAL ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on August 22, 1991.

APPEARANCES

For Petitioner: William Van Poyck, pro se #034071

Florida State Prison Post Office Box 747 Starke, Florida 32091

For Intervenor: Robert David Roy, pro se #006000

Dade County Jail 1321 N.W. 13th Street

Miami, Florida 33125

For Respondent: Linda B. Miles

Assistant Attorney General Division of General Legal Services Department of Legal Affairs

Suite 1603, The Capitol Tallahassee, Florida 32399-1300

STATEMENT OF THE ISSUES

Whether a proposed amendment to Rule 33-3.0081, Florida Administrative Code, constitutes an invalid exercise of delegated authority?

PRELIMINARY STATEMENT

On April 15, 1991, the Petitioner filed a Petition for Administrative Determination of the Invalidity of a Proposed Rule(s). This matter was assigned to the undersigned and was scheduled for formal hearing on May 16, 1991.

On April 26, 1991, a Petition to Intervene or Join Case No. 91-2292RP was filed by Robert David Roy. This Petition was granted by Order entered May 7, 1991.

On May 29, 1991, the Petitioner filed Petitioner's Motion for Continuance.

The Respondent indicated that it had no objection to the motion and it was granted by Order of May 2, 1991. The formal hearing was subsequently scheduled for July 30, 1991.

On July 12, 1991, the Petitioner filed a Motion for Continuance. The Respondent also filed a Motion for Continuance on July 15, 1991. Both motions were granted by Order entered July 16, 1991, and the formal hearing was set for August 23, 1991.

On August 19, 1991, the Respondent filed a pleading requesting that the formal hearing be moved from August 23, 1991, to August 22, 1991. This request was granted by Order entered August 20, 1991.

The formal hearing of this case was conducted by telephone. The undersigned, the court reporter, counsel for the Department of Corrections, and Ron Jones were located in a public hearing room of the Division of Administrative Hearings in Tallahassee, Florida. The Petitioner and Intervenor were located at Florida State Prison, in Starke, Florida. The hearing was conducted by a telephone connection between the two locations and the use of speaker telephones.

During the formal hearing the Petitioner presented the testimony of Ron Jones. Petitioner offered three exhibits which were accepted into evidence. The Intervenor called no witnesses and offered no exhibits. The Respondent relied upon the testimony of Mr. Jones and called no additional witnesses. The Respondent offered no exhibits.

The Petitioner and the Intervenor, and the Respondent have filed proposed final orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Final Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. Standing.

   
   

   1. The Petitioner, William Van Poyck, and the Intervenor, Robert David Roy, are inmates in the custody of the Respondent, the Department of Corrections.

      
      

   2. The Petitioner and the Intervenor are subject to the rules of the Respondent.

      
      

   3. The evidence failed to prove that the Petitioner and Intervenor are, or have been, placed in administrative confinement by the Respondent.

2. The Respondent.

   
   

   1. Section 944.09, Florida Statutes, requires that the Respondent, the Florida Department of Corrections, adopt rules governing the administration of the correctional system in Florida.

      
      

   2. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida.

      
      

3. Rule 33-3.0081, Florida Administrative Code.

1. Rule 33-3.0081, Florida Administrative Code, a rule of the Respondent, governs the placement of an inmate in "administrative confinement". "Administrative confinement" is "the removal of an inmate from the general inmate population for . . . " various specified reasons. Rule 33-3.0081(1), Florida Administrative Code.

   
   

2. By letter dated September 27, 1990, the Respondent advised the Joint Administrative Procedures Committee (hereinafter referred to as the "Committee"), of proposed amendments to Rule 33-3.0081, Florida Administrative Code.

   
   

3. Be letter dated November 5, 1990, M. Catherine Green, an attorney with the Committee, informed the Respondent that a review of the proposed amendments to Rule 33-3.0081, Florida Administrative Code, had been completed. Ms. Green also informed the Respondent of certain "technical errors" and "substantive errors" that she found with Rule 33-3.0081, Florida Administrative Code. Ms. Green indicated that a "substantive error" referred to "errors which will result in recommended objections to the committee unless they are eliminated prior to adoption."

   
   

4. Among the "substantive errors" identified by Ms. Green, was a comment concerning the following portion of Rule 33-3.0081(3), Florida Administrative Code:

   
   

   (3) Placement in administrative confinement shall be for the shortest period of time necessary to accomplish the desired results.

   
   

5. Ms. Green's comment concerning the portion of Rule 33-3.0081(3), Florida Administrative Code, quoted in finding of fact 9 was, in pertinent part, as follows:

   
   

   What does "for the shortest period of time necessary to accomplish the desired results" mean? This has the effect of not notifying the inmate of the length of time in which he will be in administrative confinement and the criteria to be considered in releasing him or her. The rule discusses criteria for placing inmates in administrative confinement, but sets no criteria other than "desired results" as to when an inmate shall be released. If the two criteria are the same, please make that clear.

6. Another of the "substantive errors" identified by Ms. Green, was a comment concerning the following portion of Rule 33-3.0081(4)(a), Florida Administrative Code:

   
   

   (4)(a) An inmate may be placed in administrative confinement by the senior correctional officer after an informal hearing when no reasonable alternative exists. The reason for placement shall be explained to the inmate, and he shall be given an opportunity to present his views on the matter to the senior correctional officer. When the senior correctional officer places an inmate in administrative confinement, this action shall be documented on a Report . . ., including the reasons for the action and a summary of the inmate's comments or objections. The inmate may also submit a written statement.

   
   

   Rule 33-3.0081(4)(b), Florida Administrative Code, provides for review of the senior correctional officer's "informal hearing" and Rule 33-3.0081(4)(c), Florida Administrative Code, provides for a 48-hour delay in the "informal hearing" in case of certain emergencies.

   
   

7. Ms. Green's comment concerning the portion of Rule 33-3.0081(4)(a), Florida Administrative Code, quoted in finding of fact 11 was, in pertinent part, as follows:

   
   

   Please provide a cross reference to the rules of procedure for an informal hearing. Does the review procedure conflict with provisions of Chapter 33-29, F.A.C.?

   Please clarify what the phrase "when no reasonable alternative exists" means in reference to an inmate's confinement after an informal hearing.

   . . . .

   
   

8. In a letter dated January 23, 1991, the Respondent, through a Senior Attorney, responded to Ms. Green's comments.

   
   

9. The following response to Ms. Green's comments concerning Rule 33- 3.0081(3), Florida Administrative Code, was made:

   
   

   The Department of Corrections will delete the phrase "for the shortest period of time necessary to accomplish the desired results" and replace it with "continue until the factors which created the need for protective management have been resolved".

   
   

10. The Respondent subsequently proposed to amend Rule 33-3.0081(3), Florida Administrative Code, by deleting the phrase "for the shortest period of time necessary to accomplish the desired results" and replacing it with the phrase "continue until the factors which created the need for protective management have been resolved".

11. The proposed amendment to Rule 33-3.0081(3), Florida Administrative Code, does not substantively change the circumstances under which an inmate placed in administrative confinement will be returned to the general inmate population. Under Rule 33-3.0081(3), Florida Administrative Code, prior to the proposed amendment, "the shortest time possible" occurred when the factors which necessitated placing an inmate in administrative confinement no longer applied. The proposed amendment merely clarifies when "the shortest time possible" has occurred.

    
    

12. The following response to Ms. Green's comments concerning Rule 33- 3.0081(4)(a), Florida Administrative Code, was also made in the January 23, 1991, letter:

    
    

    The Department of Corrections will delete the phrase "an informal hearing" and insert "being advised of an incident or situation which prohibits the inmate from remaining in open population without endangering himself or others or compromising the security of the institution".

    
    

13. The Respondent subsequently proposed to amend Rule 33-3.0081(4)(a), Florida Administrative Code, by deleting the terms "informal hearing" and replacing them with the following underlined language:

    
    

    (4)(a) An inmate may be placed in administrative confinement by the senior correctional officer after being advised of a situation or incident which prohibits the inmate from remaining in open population without endangering himself or others or compromising the security of the institution, if the situation cannot be resolved. The reason for placement shall be explained to the inmate, and he shall be given an opportunity to present his views on the matter to the senior correctional officer. When the senior correctional officer places an inmate in administrative confinement, this action shall be documented on a Report . . ., including the reasons for the action and a summary of the inmate's comments or objections. The inmate may also submit a written statement. . . .

    
    

14. The proposed amendment to Rule 33-3.0081(4)(a), Florida Administrative Code, does not substantively change the manner in which an inmate is informed that he or she is being placed in administrative confinement. The "informal hearing" previously required in Rule 33-3.0081(4)(a), Florida Administrative Code, required no more than the proposed amendment provides for. By eliminating the terms "informal hearing" the proposed rule amendment eliminates any confusion as to whether some more formal process is to be followed by the Respondent in informing an inmate that he or she is being placed in administrative confinement.

15. The Notice of Proposed Rulemaking which contained the proposed amendments at issue in this proceeding was subsequently filed by the Respondent with the Bureau of Administrative Code, for publication, and with the Committee.

    
    

16. The Notice of Proposed Rulemaking included the following "purpose and effect" clause:

    
    

    The proposed amendments are needed in order to correct technical and substantive errors noted by the Joint Administrative Procedures Committee. The proposed amendments provide clarification of policies and procedures regarding administrative confinement and protective management.

    
    

17. The purpose and effect clause is consistent with the substantive changes to Rule 33-3.0081(3) and (4)(a), Florida Administrative Code, at issue in this proceeding.

    
    

18. The weight of the evidence failed to prove that the proposed amendments to Rule 33-3.0081, Florida Administrative Code, at issue in this proceeding are arbitrary or capricious.

    
    

19. The weight of the evidence failed to prove that any of the suggestions concerning Rule 33-3.0081, Florida Administrative Code, made by Ms. Green were ever approved, adopted, or reviewed by the Committee. In fact, Ms. Green indicates in her letter that "substantive errors" she perceived would be recommended as objections to the Committee only if they were not eliminated prior to adoption. Since the "substantive errors" at issue in this proceeding were eliminated, they were apparently never recommended or considered by the Committee.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

20. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.54, Florida Statutes (1989).

    
    

    1. Standing.

       
       

21. The Petitioner has standing to institute the instant action. He is incarcerated by the Respondent and subject to the rules of the Respondent, including the rule at issue in this proceeding. He must attempt to conduct himself in a manner that will avoid his being subjected to administrative confinement. See Department of Corrections v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984). For the same reasons, the Intervenor has standing to participate in these proceedings.

    
    

    1. Nature of the Petitioner's Challenge.

       
       

22. The Petitioner has challenged certain proposed amendments to Rule 33- 3.0081, Florida Administrative Code, pursuant to Section 120.54, Florida Statutes. The Petitioner has alleged that the proposed amendments of Rules 33- 3.0081(3) and (4)(a), Florida Administrative Code, constitute an "invalid exercise of delegated authority".

23. What constitutes an "invalid exercise of delegated authority" is defined in Section 120.52(8), Florida Statutes, as follows:

    
    

    1. "Invalid exercise of delegated 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 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 rulemaking 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 vest unbridled discretion in the agency; or

       5. The rule is arbitrary or capricious.

          
          

24. In this case, the Petitioner has alleged that the proposed amendments to Rule 33-3.0081(3) and (4)(a), Florida Administrative Code, constitute an "invalid exercise of delegated authority" in violation of Section 120.52(8)(c),

    (d) and (e), Florida Statutes. It has also been alleged that the proposed amendments are invalid in violation of Section 120.52(8)(a), Florida Statutes, because the Respondent "failed to follow the applicable rulemaking procedures set forth in s. 120.54 . . . .

    
    

25. In the Petition filed by the Petitioner, the Petitioner has also alleged that the proposed amendments are unconstitutional. A Hearing Officer does have jurisdiction over constitutional challenges brought pursuant to Section 120.54, Florida Statutes, to proposed agency rules. Department of Environmental Regulation v. Leon County, 344 So.2d 297 (Fla. 1st DCA 1977). But see, Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Fund, 427 So.2d 153 (Fla. 1982); Long v. Department of Administration, 428 So.2d 688 (Fla. 1st DCA 1983); and Cook v. Parole and Probation Commission, 415 So.2d 845 (Fla. 1st DCA 1982).

    
    

    1. Burden of Proof.

       
       

26. The burden of proof in this proceeding was on the Petitioner. Florida League of Cities, Inc. v. Department of Insurance and Treasurer, 540 So.2d 850 (Fla. 1st DCA 1989); Department of Administration, Division of Retirement v. Albanese, 455 So.2d 639 (Fla. 1st DCA 1984); and Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2d DCA 1979).

    
    

27. The arguments addressed in this Final Order were set out in the Petitioner's and Intervenor's Proposed Final Order and Request for Findings of Fact and Conclusions of Law. Although signed by both the Petitioner and the Intervenor, the following conclusions of law refer only to the Petitioner.

    1. Constitutional Challenge to the Proposed Amendment to Rule 33-3.0081(3) and (4)(a), Florida Administrative Code.

       
       

28. The Petitioner has argued that the proposed amendments to Rule 33- 3.0081(3) and (4)(a), Florida Administrative Code, violate the due process clause of the Fourteenth Amendment to the Constitution of the United States and Article I, Section 9 of the Constitution of the State of Florida.

    
    

29. The Petitioner has argued that Rule 33-3.0081, Florida Administrative Code, "by its specific, mandatory language, gives inmates a due process protected liberty interest in remaining out of administrative confinement and in the general prison population. . . ." Paragraph 3, Page 12, Petitioner's and Intervenor's Proposed Final Order and Request for Findings of Fact and Conclusions of Law. The Petitioner suggests that the elimination of the language of Rule 33-3.0081(3) and (4)(a), Florida Administrative Code, through the proposed amendments at issue in this proceeding violates this due process right because the change:

    
    

    may well serve to prolong an inmate's stay in administrative confinement, and certainly does nothing to promote the goals of giving the inmate prior notice of the reasons for placement in administrative confinement, or in giving him an opportunity to meaningfully

    present his views, or in informing the inmate of how long he might remain in administrative confinement.

    
    

    Paragraph 5, Pages 13-14, Petitioner's and Intervenor's Proposed Final Order and Request for Findings of Fact and Conclusions of Law.

    
    

30. The evidence presented in this proceeding failed to support the Petitioner's argument. Neither the deletion of the terms formerly included in Rule 33-3.0081(3) or (4)(a), Florida Administrative Code, or the language of the proposed amendments to those rules violate any inmates' due process rights.

    
    

    1. The Purpose and Effect Clause of the Proposed Amendment to Rule 33-3.0081(3) and (4)(a), Florida Administrative Code.

       
       

31. The Petitioner has argued that the purpose and effect clause included in the Notice of Proposed Rulemaking was incorrect and misleading. The evidence failed to prove that the description of the changes to Rules 33-3.0081(3) and (4)(a), Florida Administrative Code, set out in the purpose and effect clause is either incorrect or misleading.

    
    

    1. The Substantive Challenge to the Proposed Amendment to Rule 33-3.0081(3) and (4)(a), Florida Administrative Code.

       
       

32. The Petitioner has alleged that the proposed amendments to Rule 33- 3.0081(3) and (4)(a), Florida Administrative Code, are invalid pursuant to Sections 120.52(8)(c), (d) and (e), Florida Statutes.

33. Section 120.52(8)(c), Florida Statutes: The Petitioner has argued that the proposed amendments to Rule 33-3.0081(3) and (4)(a), Florida Administrative Code, "enlarge, modify, or contravene the specific provisions of law implemented . . . ", in particular, Section 20.315(1)(c), Florida Statutes.

    
    

34. Section 20.315(1)(c), Florida Statutes, establishes as a "goal" of the Respondent, the following:

    
    

    (c) To provide an environment for incarcerated persons in which rehabilitation is possible. This should include the protection of the offender from victimization within the institution and the development of a system of due process and internal legality in institutions.

    
    

35. The Petitioner has argued that the proposed elimination of the phrase "for the shortest period of time" from Rule 33-3.0081(3), Florida Administrative Code, by the Respondent is contrary to Section 20.315(1)(c), Florida Statutes, because it "results in a clear reduction in the due process protections previously accorded under the existing rule "

    
    

36. The Petitioner also argued that the proposed elimination of the terms "informal hearing" from Rule 33-3.0081(4)(a), Florida Administrative Code, is contrary to Section 20.315(1)(c), Florida Statutes, because the elimination of the terms:

    
    

    may well prolong an inmate's stay in administrative confinement, may well serve to deprive an inmate of the ability to present his side of the facts, [insofar as a 'hearing'

    denotes an exchange of views and communication, while the new proposed rule provides only that the Senior Correctional Officer informs the inmate of what is happening to him], . . . .

    
    

37. The weight of the evidence failed to prove that the proposed amendment of Rule 33-3.0081(3) or (4)(a), Florida Administrative Code, is contrary to Section 20.315(1)(c), Florida Statutes. Based upon a reading of all of Rule 33- 3.0081, Florida Administrative Code, including the proposed amendments, it appears that the Respondent is attempting to fulfill the goal of Section 20.315(1)(c), Florida Statutes. The rule is designed to provide protection of inmates from victimization within the institution in a manner that maintains due process and internal legality.

    
    

38. The Petitioner has failed to consider the entire rule at issue in this proceeding. The Petitioner has also failed to accept the fact that the proposed changes to Rule 33-3.0081(3) or (4)(a), Florida Administrative Code, do not modify the substance of Rule 33-3.0081, Florida Administrative Code. The proposed changes merely clarify some of the requirements of Rule 33-3.0081, Florida Administrative Code.

    
    

39. Section 120.52(8)(d), Florida Statutes: The Petitioner has also argued that the proposed amendments to Rule 33-3.0081(3) and (4)(a), Florida Administrative Code, are "vague, fail to establish adequate standards for agency decisions, or vest unbridled discretion in the agency." In support of this argument, the Petitioner has argued:

    These changes [elimination of informal hearing and the elimination of the sentence which establishes some standard and/or criteria] do nothing to promote or further the goals of giving the inmate prior notice of the reasons for placement in administrative confinement, or in giving him an opportunity to present

    his views, and will tend to extend an inmate's length of stay in administrative confinement by virtue of the vagueness of the new, replacement sentences.

    
    

    Paragraph 10, Page 16, Petitioner's and Intervenor's Proposed Final Order and Request for Findings of Fact and Conclusions of Law.

    
    

40. The evidence presented in this proceeding failed to support the factual basis for the Petitioner's argument. Additionally, the Petitioner has argued that the elimination of the language which is being replaced in Rule 33- 3.0081, Florida Administrative Code, violates Section 120.52(8)(d), Florida Statutes. That is not the issue. The issue is whether the language of the proposed amended language of Rule 33-3.0081, Florida Administrative Code, violates Section 120.52(8)(d), Florida Administrative Code. The weight of the evidence failed to prove that Rule 33-3.0081(3) or (4)(a), Florida Administrative Code, amended as proposed, are "vague, fail to establish adequate standards for agency decisions, or vest unbridled discretion in the agency."

    
    

41. Section 120.52(8)(e), Florida Statutes: The Petitioner has also argued that the proposed amendments to Rule 33-3.0081(3) and (4)(a), Florida Administrative Code, are "arbitrary or capricious."

    
    

42. The Petitioner has argued that "[b]ecause the proposed rule changes .

    . . are both unnecessary and serve no real purpose . . . they are arbitrary and/or capricious." Paragraph 11, Page 16, Petitioner's and Intervenor's Proposed Final Order and Request for Findings of Fact and Conclusions of Law.

    
    

43. An arbitrary and capricious action has been defined as follows:

    
    

    A capricious action is one which is taken without thought or reason or irrationally.

    An arbitrary decision is one not supported by facts or logic, or despotic.

    
    

    Agrico, supra. The evidence failed to prove that the provisions of Rule 33- 3.0081(3) or (4)(a), Florida Administrative Code, as the Respondent proposes to amend those rules, are without thought or reason, are irrational or are not supported by facts or logic.

    
    

44. Conclusion: Based upon the foregoing, it is concluded that the Petitioner failed to prove that the proposed amendment to Rule 33-3.0081(3) or (4)(a), Florida Administrative Code, "enlarges, modifies, or contravenes the specific provisions of law implemented, . . .;" is "vague, fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency;" or is "arbitrary or capricious."

    
    

    1. Compliance with Section 120.545(3), Florida Statutes.

45. The Petitioner has suggested in his proposed final order that the Respondent failed to comply with Section 120.545(3), Florida Statutes. This argument was not raised in the petition challenging the proposed amendments. It is, therefore, too late to raise this argument.

    
    

46. More importantly, Section 120.545(3), Florida Statutes, does not apply to this case. The evidence failed to prove that the Committee ever raised any objections to the rules at issue in this proceeding. The evidence proved that the suggestions that the Respondent responded to were those of an employee of the Committee. The Respondent responded to those suggestions, and therefore, the Committee never had an opportunity to consider the suggestions or, more importantly, raise an objection. Therefore, the Respondent's proposed amendments were not made in response to "the committee's objection".

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petitioner and Intervenor have failed to prove that the

proposed amendments to Rule 33-3.0081, Florida Administrative Code, they have challenged constitute an invalid exercise of delegated authority in violation of Section 120.54, Florida Statutes, and the Petitioner's Petition for Administrative Determination of the Invalidity of a Proposed Rule(s) and the Intervenor's Petitioner to Intervene or Join Case No. 91-2292RP are DISMISSED.

DONE and ENTERED this 10th day of December, 1991, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1991.

APPENDIX TO FINAL ORDER

The Petitioner and Intervenor, and the Respondent have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's and Intervenor's Proposed Findings of Fact Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1. See 7.

2. 7. See 8. The evidence failed to prove that the Committee made any suggestions concerning the rule at issue in this proceeding. The suggestions were those of an employee of the Committee who specifically stated in her letter that she would recommended that the Committee object to the "substantive errors" she believed existed. The evidence failed to prove that she ever did make such a recommendation or, more importantly, that the Committee ever considered the "substantive errors" or agreed with them.

3. See 9-12 and the comment concerning proposed finding of fact 2.

4 See 8 and 10-12.

1. Not supported by the weight of the evidence as recognized in the footnote to this proposed finding.

2. See 13 and the comment concerning proposed finding of fact 2.

7 14 and 17.

8 15, 18 and 20. Whether there were "numerous changes" is not relevant. See the comment concerning proposed finding of fact 2.

9-11 Statement of the Petitioner's position.

1. Statement of the Petitioner's position. See 9-10, 14- 16.

2. Statement of the Petitioner's position. See 11-12 and 17-19.

3. Not relevant. See 10-11. See also the comment concerning proposed finding of fact 2.

15-19 Not supported by the weight of the evidence or not relevant.

1. See 16 and 19.

2. Not relevant.

3. See 21.

4. Not supported by the weight of the evidence.

5. Hereby accepted.

25-27 and 29 Not supported by the weight of the evidence.

28 See 19.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 1.

2 3.

3 4.

4 15 and 18.

5 Hereby accepted.

6 15 and 18.

7 15.

8 16.

9 11 and 18

10. 19.

11 20.

COPIES FURNISHED:

William Van Poyck #034071

Florida State Prison Post Office Box 747 Starke, Florida 32091

Robert David Roy #006000

Dade County Jail 1321 N.W. 13th Street

Miami, Florida 33125

Claire Dryfuss

Assistant Attorney General Division of General Legal Services Department of Legal Affairs

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

Donna Malphurs Suite 439

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Richard Doran

Assistant Deputy Attorney General Division of General Legal Services Department of Legal Affairs

The Capitol

Tallahassee, Florida 32399-1050

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

Liz Cloud, Chief

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

Harry K. Singletary, Jr. Secretary

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

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: 91-002292RP

Orders for Case No: 91-002292RP