STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD CHARLES GASTON, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4087RX

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

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 9, 1991.

APPEARANCES

For Petitioner: David Ansgar Nyberg

#049898

Qualified Representative

Marion Correctional Institution Post Office Box 158 - 575

Lowell, Florida 32663

For Respondent: Arthur R. Wiedinger, Jr.

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

Suite 1602, The Capitol Tallahassee, Florida 32399-1300

STATEMENT OF THE ISSUES

Whether Rule 33-7.005, Florida Administrative Code, constitutes an invalid exercise of delegated authority?

PRELIMINARY STATEMENT

On July 2, 1991, the Petitioner, Richard Charles Gaston, filed an Initial Complaint challenging Rule 33-7.005, Florida Administrative Code, as an invalid exercise of delegated authority. In particular, the Petitioner alleged that the challenged rule was contrary to the law that it was intended to implement.

The formal hearing of this case was conducted by telephone. The undersigned, the court reporter, counsel for the Department of Corrections, and Bobbi Glover, one of the witnesses, were located in a hearing room of the Division of Administrative Hearings in Tallahassee, Florida. The Petitioner, the Petitioner's qualified representative (David Ansgar Nyberg), and the other witnesses who testified during the hearing were located at Marion Correctional

Institution in Lowell, 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 testified on his own behalf, and presented the testimony of Brandon D. Cave, Sr., Frances M. Hammer and Bobbi Glover. Petitioner offered 2 exhibits which were accepted into evidence. The Respondent called no witnesses and offered no exhibits.

The parties 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, Richard Charles Gaston, is an inmate in the custody of the Respondent, the Department of Corrections.

      
      

   2. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding.

      
      

   3. The Respondent stipulated that the Petitioner has standing to institute this proceeding.

      
      

2. The Respondent.

   
   

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

      
      

3. Rule 33-7.005, Florida Administrative Code.

1. Section 944.292, Florida Statutes, provides that the civil rights of persons convicted of a felony as defined in Section 10, Article X of the Constitution of the State of Florida, are suspended "until such rights are restored by a full pardon, conditional pardon, or restoration of civil rights granted pursuant to s. 8, Art. IV of the State Constitution."

   
   

2. Section 8, Article IV of the Constitution of the State of Florida, authorizes the Governor to grant pardons restoring civil rights with approval of three members of the Cabinet.

   
   

3. The initiation of the process for consideration of whether an inmate should have his or her civil rights restored pursuant to Section 8, Article IV of the Constitution of the State of Florida, is governed by Section 944.293, Florida Statutes (1989).

4. Section 944.293, Florida Statutes (1989), provides the following: Initiation of restoration of civil rights.

   --With respect to those persons convicted of a felony, the following procedure shall apply: Prior to the time an offender is discharged from supervision, an authorized agent of the department shall obtain from the Governor the necessary application and other forms required

   for the restoration of civil rights. The authorized agent shall insure that the application and all necessary material are forwarded to the Governor before the offender is discharged from supervision.

   
   

5. In implementing Section 944.293, Florida Statutes, the Respondent has promulgated Rule 33-7.005, Florida Administrative Code (hereinafter referred to as the "Challenged Rule").

   
   

6. The Challenged Rule provides, in pertinent part:

   
   

   Discharge of an Inmate. When an inmate has completed all combined sentences imposed upon him or is released by parole, pardon or court order, the Secretary or his designated agent shall furnish such inmate with a certificate of discharge upon his release from custody.

   All qualified inmates shall be given the opportunity at the time of their release to complete an application for restoration of civil rights, Form DC4-322, Restoration of Civil Rights. Form DC4-322 is hereby incorporated by reference. A copy of this form may be obtained from any institution or from the Bureau of Admission and Release, Department of Corrections . . . .

   
   

7. The Respondent releases approximately 40,000 to 45, 000 inmates each year.

   
   

8. The release of an inmate, including an inmate convicted of a felony, involves a somewhat lengthy process and the completion of a number of forms, including a form for restoration of civil rights.

   
   

9. The date upon which an inmate is to be released from prison becomes "frozen" seven days prior to the inmate's release. Even after the release date is determined and considered "frozen", however, that release date may be modified because of conduct of the inmate after the date is "frozen" but before the inmate is actually released.

   
   

10. The completion of the forms necessary to institute a determination of whether an inmate's civil rights should be restored begins approximately 120 days prior to the inmate's projected release.

    
    

11. Pursuant to the Challenged Rule, the Respondent has designated an employee of the Respondent at Marion Correctional Institute to interview inmates to be released and provide a Form DC4-322, Restoration of Civil Rights (hereinafter referred to as the "Application"), to inmates to be released.

    
    

12. A completed Application is mailed by the Respondent to the Florida Parole Commission (hereinafter referred to as the "Commission") on the date that the inmate is released from prison.

    
    

13. The Respondent does not send the completed Application until the day the inmate is actually released from prison because the release date may change at any time prior to the actual time the inmate is released. The weight of the

    evidence failed to prove, however, that the Respondent cannot inform the Commission after it has forwarded an application that the inmate's proposed release date has been modified or that the Commission would not ignore an application upon such notification.

    
    

14. Some, but not all, inmates convicted of felonies may not be eligible for restoration of their civil rights at the time of their release from prison; these inmates are subject to supervision after leaving prison.

    
    

15. Some inmates convicted of felonies, such as the Petitioner, have, however, completely served their sentences and are released from all supervision at the time they are released from prison. The weight of the evidence failed to prove that such inmates are not eligible for restoration of their civil rights immediately upon their release from prison.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

16. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56(1), Florida Statutes (1989).

    
    

    1. Standing.

       
       

17. 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. See Department of Corrections

    v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984).

    
    

    1. Nature of the Petitioner's Challenge.

       
       

18. The only appropriate challenge to an existing rule which may be brought before the Division of Administrative Hearings is a challenge pursuant to Section 120.56, Florida Statutes. The only relief which may be sought pursuant to Section 120.56, Florida Statutes, is a determination of the invalidity of the rule on the ground that the rule is an "invalid exercise of delegated authority."

    
    

19. 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.

          
          

20. In order to challenge an existing rule, the person bringing the challenge must state with particularity which portion(s) of the above definition the challenged rule violates and the facts supporting such an allegation.

    
    

21. In this case, the Petitioner has alleged that the Challenged Rule constitutes an "invalid exercise of delegated authority" in violation of Section 120.52(8)(c), Florida Statutes, because the Challenged Rule "enlarges, modifies, or contravenes" Section 944.293, Florida Statutes.

    
    

    1. Burden of Proof.

       
       

22. 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).

    
    

    1. The Validity of Rule 33-7.005, Florida Administrative Code.

    
    

23. The only issue in this case is whether the Challenged Rule is consistent with the requirements of Section 944.293, Florida Statutes, one of the statutory provisions the Challenged Rule implements.

    
    

24. Pursuant to the Challenged Rule, the Respondent has implemented Section 944.293, Florida Statutes, by providing the following: The Respondent gives inmates an opportunity to complete an Application "at the time of their release". In applying the Challenged Rule, the Respondent provides the Application to the inmate prior to his release from prison. The Application is forwarded, as provided in the Challenged Rule, "at the time of their release".

    
    

25. Section 944.293, Florida Statutes, requires the following:

1. Prior to the time that an inmate is "discharged from supervision" the Respondent must obtain the necessary application and other forms required for the restoration of the civil rights of an inmate who has been convicted of a felony;

   
   

2. Prior to the time that an inmate is "discharged from supervision" an authorized agent of the Respondent must assist the inmate in completing the necessary forms; and

   
   

3. The Respondent's authorized agent must insure that the application and all of necessary materials are forwarded "before the offender is discharged from supervision." [Emphasis added].

1. The Respondent has argued that forwarding the Application when an inmate is released from prison is not inconsistent with the requirements of Section 944.293, Florida Statutes, because an inmate's release from prison may not constitute the inmate's "discharge from supervision". Whether this interpretation of Section 944.293, Florida Statutes, is correct need not be

   addressed because the evidence failed to prove that the date an inmate is released from prison is never the date the inmate is discharged from supervision. In fact, the evidence proved that for some inmates, such as the Petitioner, the date they are released from prison is also the date they are discharged from supervision. Therefore, for those inmates, forwarding an Application on the day of the inmate's release from prison ("at the time of their release" as provided by the Challenged Rule) is inconsistent with Section 944.293, Florida Statutes.

   
   

2. Based upon the foregoing, it is concluded that the Respondent's interpretation of Section 944.293, Florida Statutes, may, at best, be correct only to the extent that the Respondent has concluded that an inmate's discharge from all supervision may not occur at the time of the inmate's release from prison. The Respondent's interpretation of Section 944.293, Florida Statutes, as evidenced in the Challenged Rule and suggested in this proceeding, that an inmate's discharge from all supervision will not occur in any instance when an inmate is released from prison, however, is not consistent with Section 944.293, Florida Statutes. Therefore, because the Challenged Rule does not differentiate between inmates who are being discharged from supervision at the time of their release from prison and those inmates who are not being discharged from supervision at the time of their release from prison, the Challenged Rule is contrary to the requirements of Section 944.293, Florida Statutes.

   
   

3. In further support of the Challenged Rule, the Respondent has suggested that it cannot forward an Application prior to an inmate's release from prison because the inmate's actual release date may change at any time up until the inmate's actual release. Therefore, the Respondent suggests that it would be unreasonable to forward an Applications prior to the inmate's release. There are two problems with this argument. Firstly, Section 944.293, Florida Statutes, makes it mandatory that the Application be forwarded prior to discharge regardless of the practical effect of such a requirement. Secondly, the weight of the evidence failed to prove that the Respondent cannot inform the Commission after it has forwarded an Application that the inmate's proposed release has been modified or that the Commission would not withhold action on an Application upon such notification.

   
   

4. The Challenged Rule is also contrary to Section 944.293, Florida Statutes, in that the Challenged Rule merely provides that inmates are to be "given an opportunity" to complete the necessary Application. Section 944.293, Florida Statutes, requires that inmates be assisted by an agent of the Respondent in completing the necessary Application.

   
   

5. The Petitioner has also argued that the Challenged Rule is inconsistent with Section 944.293, Florida Statutes, because the Challenged Rule provides for the use of Form DC4-322 and the Commission requires that form ADM- 1501 be used. The weight of the evidence failed to prove that Form DC4-322 is not the correct form.

   
   

6. The Petitioner has also argued that the Challenged Rule is invalid because the Rules of Executive Clemency require that applications for restoration of civil rights be accompanied with a certified copy of the charging instrument and a certified copy of the judgement and sentence. The weight of the evidence failed to prove that these documents are not provided by the Respondent. More importantly, there is nothing in the Challenged Rule which is inconsistent with this requirement. All that is at issue in this proceeding is the language of the Challenged Rule and not the Respondent's application of the Challenged Rule.

7. Based upon the foregoing, it is concluded that the Challenged Rule does enlarge, modify, and contravene the specific provisions of one of the statutes it implements, Section 944.292, Florida Statutes. Therefore, the Challenged Rule constitutes an invalid exercise of delegated authority pursuant to Section 120.52(8)(c), Florida Statutes, in violation of Section 120.56, Florida Statutes.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Rule 33-7.005, Florida Administrative Code, is an invalid

exercise of delegated authority in violation of Section 120.56, Florida

Statutes.

DONE and ENTERED this 9th day of September, 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 9th day of September, 1991.

APPENDIX TO FINAL ORDER

The parties 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 Recommended 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 Proposed Findings of Fact

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

1 Not a proposed finding of fact.

2 1-3.

1. Not relevant to this proceeding.

2. Not relevant to this proceeding.

3. Not relevant to this proceeding. The Petitioner failed to prove what forms must be used.

6 14.

1. See 10.

   8 13.

   The Respondent's Proposed Findings of Fact

   
   

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

   
   

   1 1-3.

   2 10.

   3 12 and 14.

   4 13.

   5 14.

   6-7 18.

2. Not supported by the weight of the evidence.

COPIES FURNISHED:

Richard Charles Gaston #113081

Marion Correctional Institution Post Office Box 158-970

Lowell, Florida 32663

David Ansgar Nyberg #049898

Marion Correctional Institution Post Office Box 158 - 575

Lowell, Florida 32663

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

Linda B. Miles

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

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

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

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: 91-004087RX

Orders for Case No: 91-004087RX