STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY M. PICCIRILLO, JESSE J. ) WOLBERT, and ALLEN L. PENOYER, )

)

Petitioners, )

)

vs. ) CASE NO. 84-2218RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on July 25, 1984, at Clermont, Florida.

APPEARANCES

For Petitioners: Gary A. Piccirillo, Jesse J. Wolbert

and Jesse J. Wolbert, Pro Se Lake Correctional Institution Clermont, Florida 32711

For Respondent: John J. Rimes, III, Esquire and

Lisa Santucci, Esquire Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

By Petition dated June 17, 1984, Gary M. Piccirillo, Jesse J. Wolbert, and Allen L. Penoyer, Petitioners, seek to have Rule 33-3.05(16) (now Rule 33-22.12, Section 6), Florida Administrative Code, declared invalid on grounds the rule is arbitrary, capricious, and has no basis in fact; the agency did not give advance notice to persons affected prior to promulgations of the rule; and the rule establishes penalties which have not been authorized by the Legislature.

Specifically, the only rule challenged was that making it an offense for an inmate to disobey a verbal or written order.

At the hearing Petitioner called eight witnesses, Respondent called one witness, and four exhibits were admitted into evidence. Proposed findings submitted by Respondent, to the extent incorporated herein, are adopted; otherwise they are rejected as not supported by the evidence, immaterial, or unnecessary to the conclusions reached.

FINDINGS OF FACT

1. At all times materiel hereto petitioners were inmates et Lake Correctional Institution (LCI) and were subject to discipline for failure to obey orders.

2. Piccirillo was disciplined for failure to comply with an order to report to the infirmary or sick call. Piccirillo was aware that his name was posted on the bulletin board directing him to report to the medical department and et the time specified he failed to so report, was disciplined, and he lost gain time.

   
   

3. A doctor visits LCI twice per week and inmates with medical problems can be seen by the doctor on these days. No patient is required to undergo medical treatment for minor ills if he so elects. Because of the limited time a doctor is available to LCI it is necessary that those inmates so designated see the doctor at the scheduled time.

   
   

4. Inmates who do not understand an order may request clarification. If the inmate cannot read he is not punished for failure to obey written orders.

   
   

5. Prior to disciplinary action being taken against an inmate for disobedience of orders, the disciplinary report is investigated and, after the investigator finds the charge to be true, discipline may be administered. Additionally, the inmate has a grievence procedure he may follow after the investigator recommends disciplinary action be taken.

   
   

6. Occasionally, inmates are given orders by correctional officers which are unlawful. The inmate may obey the order and say nothing, he may obey the order and file a grievance, or he may refuse to obey he order and successfully defend the disciplinary report for failure to obey the order. It is not an offense for an inmate to refuse to obey an unlawful order.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. No evidence was presented that Respondent failed to follow the procedures established by Chapter 120, Florida Statutes, in adopting this challenged rule.

   
   

9. Section 944.33, Florida Statutes, authorizes superintendents to use all necessary means and such punishment as needed may be adopted to maintain order and enforce discipline. The maximum punishment provided in the challenged rule is 30 days confinement and loss of 60 days gain time. No evidence was submitted that this punishment is arbitrary or unreasonably applied.

   
   

10. In a penal institution it is essential that verbal orders are given to inmates to carry out the daily routine and to maintain discipline. The fact that a corrections officer, or any other officer, given authority over other people, may abuse that authority is not a valid heels for refusing to grant the authority. Proper supervision is required to deter the abuse of authority and such abuse can be deterred only by proper supervision.

    
    

11. From the foregoing it is concluded that Petitioners have failed to establish that Rule 33-22.12, Section 6, Florida Administrative Code, is an invalid exercise of delegated authority or that the rule was not promulgated pursuant to the requirements of Chapter 120, Florida Statutes. It is

ORDERED the Petition of Gary M. Piccirillo, Jesse J. Wolbert, and Allen L. Penoyer to have Rule 33-22.12, Section 6, declared invalid be dismissed.

DONE AND ORDERED this 24th day of August, 1984, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 24th day of August, 1984.

COPIES FURNISHED:

Gary A. Piccirillo

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711

Louie L. Wainwright, Secretary Department of Corrections

1311 Winewood Boulevard

Tallahassee, Florida 32301

Jesse J. Wolbert

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711

Allen L. Penoyer

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711

Louis A. Verges, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Capitol, Suite 1802 Tallahassee, Florida 32301

Carroll Webb, Executive Director Joint Administrative

Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 84-002218RX

Orders for Case No: 84-002218RX