STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIMMY L. ROGERS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3922RX

) STATE OF FLORIDA, FLORIDA PAROLE ) AND PROBATION COMMISSION, )

)

Respondent. )

)

FINAL ORDER

A formal hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on January 19, 1983, at the Union Correctional Institution, Raiford, Florida.

APPEARANCES

For Petitioner: Jimmy L. Rogers, Pro Se

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

For Respondent: Doris E. Jenkins, Esquire

Assistant General Counsel

Florida Parole and Probation Commission 1309 Winewood Boulevard, Building 6

Tallahassee, Florida 32301 ISSUES

This case arises out of a challenge by Petitioner to the validity of Rule 23-21.02(49), Florida Administrative Code. Petitioner contends that the rule is arbitrary and capricious and that it is beyond the scope of the legislative authority granted the Parole and Probation Commission and that the rule is inconsistent with the intent of the Florida Statutes which it seeks to implement. At the formal hearing, the Petitioner testified on his own behalf and the Respondent called Mr. Harry Dodd as its only witness. The Respondent offered and had admitted into evidence four exhibits. At the formal hearing, both parties requested and were given permission to file late filed exhibits.

The Petitioner has filed no late filed exhibits and the Respondent has filed late filed exhibits with a motion that they be accepted. That motion is hereby GRANTED and the late filed exhibits are accepted into evidence. The motion for summary judgment filed by the Respondent is hereby DENIED.

Counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions of law are inconsistent with this order,

they were rejected as not being supported by the evidence or as unnecessary to a resolution of this cause.

FINDINGS OF FACT

1. At the time of hearing, the Respondent was incarcerated at Union Correctional Institution, Raiford, Florida.

   
   

2. Having maintained eligibility for parole consideration, Petitioner had his effective parole release date interview on July 18, 1983.

   
   

3. As a result of the interview, the Parole and Probation Commission on August 24, 1983, extended the Respondent's presumptive parole release date from September 13, 1983, to March 13, 1984. This was an extension of six months. The basis for the extension was "unsatisfactory institutional adjustment" as evidenced by two disciplinary reports dated October 19, 1982, and December 13, 1982. The commission action made specific reference to Rule 23-21.02(43).

   
   

4. The disciplinary report dated October 19, 1982, arose out of a charge that Petitioner caused a disturbance in the chow line. Petitioner was found guilty and required to forfeit 30 days of gain time and to spend an indefinite period not to exceed 30 days in disciplinary confinement.

   
   

5. The disciplinary report dated December 13, 1982, arose out of a charge that Petitioner was removing sweet rolls from the serving line and refused to comply with an order to leave the serving line. Petitioner was found guilty of the charge and was required to forfeit 30 days gain time.

   
   

6. During the period prior to his July 18, 1983, interview, Petitioner received two disciplinary reports dated June 16, 1983, and April 1983. These two disciplinary reports were dismissed and were not the basis for the commission action of extending Petitioner's presumptive parole release date.

   
   

7. Subsequent to the extension of his presumptive parole release date, Petitioner appealed the extension. The appeal was reviewed and denied by the commission on November 9, 1983.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and parties of this action.

   
   

9. In this action, Petitioner challenges the validity of Rule 23-21.02(49) which defines unsatisfactory institutional conduct and states:

   
   

   Unsatisfactory Institutional Conduct means conduct which:

   1. results in pending or processed disciplinary actions which may result in the loss of gain-time or placement in disciplinary confinement (for the purposes of this subsection, pending means a formal disciplinary report document has been created by the Department; processed means that a written decision has been rendered at the institution);

   2. results in a pending or completed

      court prosecution;

   3. results in a reclassification action (raising custody classification, transferring to a higher custody or level institution, or transferring to close management status)

   4. results in the Commission finding that there is competent and persuasive evidence in the form of an admission against interest by the inmate;

   5. results in the Commission determining through competent and persuasive independent knowledge of an action pending either in court or in the Department's disciplinary hearing process.

      
      

      Petitioner specifically challenges that portion of the rule relating to the use of disciplinary reports in establishing "unsatisfactory institutional conduct."

      
      

10. Petitioner contends that the rule is arbitrary and capricious, exceeds the specific grant of legislative authority, and is unreasonable on its face. Petitioner also contends that the rule definition restricts the legislative intent of establishing an objective means of determining parole release for inmates.

    
    

11. In attacking an agency rule as arbitrary or capricious or an abuse of discretion, the challenger has the burden of proof and that burden is a stringent one, indeed. Agrico Chemical Co. v. State of Florida, Department of Environmental Regulation, 365 So. 2d 759 (Fla. 1st DCA 1979). The courts have provided guidance for the review of such challenges by defining the terms arbitrary and capricious as they relate to adoption of administrative rules:

    
    

    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. Administrative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion.

    Id. at 763.

    
    

    Rule making by an agency is quasi-legislative action and must be considered with deference to that function. Florida Beverage Corporation v. Wynn, 306 So. 2d

    200 (Fla. 1st DCA 1975). Given a proposed rule within an area of regulation delegated by the legislature to an agency, the test for arbitrariness is the same for the proposed rule as it would be for a statute having the same effect. Florida Citrus Commission v. Owens, 239 So. 2d 840, 848 (Fla. 4th DCA 1979), cert. denied, 242 So. 2d 873 (Fla. 1971). Agrico Chemical Co. v. State of Florida, Department of Environmental Regulation, supra at 762.

    
    

12. Petitioner's principal argument, as revealed by his petition as well as his testimony, is based upon the contention that the finding of "unsatisfactory institutional conduct" was based upon two disciplinary reports which had been dismissed. However, the evidence clearly established that the two disciplinary reports dated October 19, 1983 and December 13, 1983, were not dismissed. These two reports were the basis of the extension of Petitioner's

    presumptive parole release date and in each the Petitioner was found guilty and required to forfeit gain time.

    
    

13. Petitioner did in fact receive two disciplinary reports dated June 16, 1983 and sometime in April 1983, which were dismissed prior to his July 18, 1983, interview. However, these two reports were not the basis of the commission action extending his presumptive parole release date. The evidence failed to establish that dismissed disciplinary reports were in fact used as a basis for extending Petitioner's presumptive parole release date.

    
    

14. Under Florida Statute 947.165, the Parole and Probation Commission is mandated to develop and implement objective parole guidelines. Florida Statute

    947.07 provides:

    
    

    The commission shall have power to make such rules and regulations as it deems best for its governance, including among other things rules of practice and procedure and rules prescribing qualifications to be possessed by its employees.

    
    

15. Section 947.1745, Florida Statutes, provides that if an inmate's institutional conduct has been satisfactory his presumptive parole release date shall become his effective parole release date. That same section goes on to provide that unsatisfactory institutional conduct can prevent the presumptive parole release date from becoming the effective parole release date.

    
    

16. In promulgating Rule 23-21.02(49), Florida Administrative Code, the Parole and Probation Commission was following the mandate of Section 947.165 and was well within its rule making authority under Section 947.07, Florida Statutes. The definition of "unsatisfactory institutional conduct" contained in the challenged rule merely defines and sets standards for determining unsatisfactory institutional conduct referred to in Section 947.1745, Florida Statutes.

    
    

17. Petitioner failed to establish through competent evidence that the rule is either arbitrary or capricious in that it exceeds the statutory grant of authority by the legislature to the Parole and Probation Commission. The other grounds asserted by Petitioner are also found to be without merit.

FINAL ORDER

Based upon the foregoing findings of fact and conclusions of law, it is concluded that the Petitioner h failed to demonstrate that Rule 23-21.02(49), Florida Administrative Code, is an invalid exercise of delegated legislative authority. The petition challenging the rule is therefore DISMISSED

DONE AND ORDERED this 8th day of June 1984, in Tallahassee, Florida.

MARVIN E. CHAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

FILED with the Clerk of the Division of Administrative Hearings this 8th day of June 1984.

COPIES FURNISHED:

Doris E. Jenkins, Esquire Assistant General Counsel

Florida Parole and Probation Commission 1309 Winewood Boulevard, Building 6

Tallahassee, Florida 32301

Jimmy L. Rogers

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802, The Capitol

Tallahassee, Florida 32301

Docket for Case No: 83-003922RX

Orders for Case No: 83-003922RX