STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IRIS SMITH CONGLETON, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1482RU

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

SUMMARY FINAL ORDER

This cause came on to be heard upon Respondent's Motion To Dismiss, filed on April 2, 1993, and the response thereto, filed on April 5, 1992.

By order of the Circuit Court for Gadsden County, Florida, issued on January 27, 1993, Petitioner was appointed plenary guardian of the property and limited guardian of the person of Coleman C. Smith. In that order, the Court specifically found, among other incapacities, that Smith was unable to "make decisions concerning social environment or other social aspects of his life." Petitioner was specifically authorized by terms of that order to exercise this right on Smith's behalf. Smith is presently a patient of forensic services in the Florida State Hospital in Chattahoochee, Florida.

By letter dated March 11, 1993, Respondent's representative refused to grant Petitioner's request that certain persons specified by Petitioner be prohibited from visitation with Smith. The letter referenced Section 744.3215(1)(m), Florida Statutes (1991), which reads as follows:

744.3215 Rights of persons determined incapacitated.

(1) A person who has been determined to be incapacitated retains the right:

* * *

(m) To receive visitors and communicate with others.

On March 15, 1993, Petitioner's Petition Challenging The Validity Of An Unpromulgated Rule was filed with the Division of Administrative Hearings (DOAH).

The gravamen of the Petition is that Respondent's representative by reliance on Section 744.3215(1)(m), Florida Statutes (1991), as set forth in the March 11, 1993 letter, sought to enforce an unpromulgated rule regulating patient visitation.

Petitioner's argument is unpersuasive. The language of Section 744.3215(1)(m), Florida Statutes (1991), clearly and unequivocally expresses the legislative mandate regarding a patient's right to see or communicate with visitors.

Accordingly, the motion to dismiss is treated as a motion for summary final order in accordance with provisions of 60Q-2.030, Florida Administrative Code.

As such, the motion is granted and the final hearing scheduled for May 19, 1993, is cancelled.

DONE AND ORDERED this 26th day of April, 1993, in Tallahassee, Florida.

DON W. DAVIS

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 26th day of April, 1993.

COPIES FURNISHED:

Gordon Steven Dow, Esquire

P. O. Box 14224 Tallahassee, FL 32317

Gene Stephens Forensic Attorney

Florida State Hospital

P. O. Box 1000 Chatahoochee, FL 32324

John Slye, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

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

Docket for Case No: 93-001482RU

Orders for Case No: 93-001482RU