STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANNY RIVERA, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4692RX

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

This is a rule challenge case pursuant to Section 120.56, Florida Statutes, in which the petitioner seeks a determination that a booklet entitled Administrative Gain Time, which booklet was promulgated by the Department of Corrections, is a rule, and that such rule is invalid. A final hearing was duly scheduled in this case, but prior to the date scheduled for the hearing the parties entered into a joint stipulation as to all material facts. The need for an evidentiary hearing having been obviated by the parties' stipulation the formal hearing was cancelled and the parties were advised of a deadline for the filing of their proposed final orders. Both parties filed timely proposed final orders. The parties' proposed final orders have been carefully considered during the preparation of this final order.

FINDINGS OF FACT

The parties have stipulated to the following findings of fact:

1. Petitioner, Danny Rivera, is an inmate incarcerated at Dade Correctional Institution, Florida City, Florida. Dade Correctional Institution is a correctional facility operated by the Department of Corrections of the state of Florida.

   
   

2. The Florida Legislature enacted section 944.276, Florida Statutes, in 1987 to provide for "Administrative Gain Time." The parties request the Hearing Officer take Official recognition of this statute.

   
   

3. Respondent promulgated Rule 33-11.017, Florida Administrative Code, effective July 7, 1987. This rule, entitled "Administrative Gain Time," excludes inmates who were convicted of certain crimes from receiving this type of gain time. Those exclusions track the exclusions set forth in Section 944.276, Florida Statutes. The parties request the Hearing Officer take official recognition of this rule.

   
   

4. Both Section 944.276, Florida Statutes, and Rule 33-11.017, Florida Administrative Code, refer to Section 917.012(1), Florida Statutes, defining various sex crimes. Persons convicted of those specified sex crimes were excluded from receiving administrative gain time. The parties request the Hearing Officer take official recognition of this statute.

5. Petitioner was charged with a five count information including three counts of sexual battery. Petitioner entered guilty pleas to counts one and two, burglary with assault and robbery with a deadly weapon. The prosecutor dropped the sexual battery counts as part of a plea bargain. On April 18, 1983, Petitioner was sentenced to fifteen years in the Department of Corrections for the burglary and robbery counts. This is the sentence Petitioner is serving at Dade Correctional Institution. The parties request the Hearing Officer take Official Recognition of the certified copies of the information and judgment and sentence.

   
   

6. In July of 1987, Respondent promulgated the booklet entitled Administrative Gain Time which is the subject of this Petition. The booklet, a copy of which was supplied to the Hearing Officer, was sent to officials at Dade Correctional Institution from Respondent's offices in Tallahassee.

   
   

7. Angie Rivera, a classification Specialist at Dade Correctional Institution, calculated gain time to be given Petitioner. When Section 44.276, Florida Statutes, became effective, Petitioner was granted two-hundred-eighty days of administrative gain time through August, 1987. Ms. Rivera voided the two-hundred-eighty days once the Classification Supervisor, Clarence Cryer, received the booklet in question and directed recalculation of certain inmates' administrative gain time awards.

   
   

8. Petitioner filed a grievance attacking his loss of two-hundred-eighty days. Thomas Crews, Assistant Superintendent at Dade Correctional Institution, denied the grievance. Petitioner was told that the questioned booklet was a valid policy statement from the Department Secretary. Since Petitioner was convicted of burglary with an assault, he was excluded from those eligible to receive administrative gain time.

   
   

9. Petitioner discussed this problem with his Classification Officer on several occasions. Eventually he was shown the booklet. On pages 9 and 10, Section V(1)(B)(8), the booklet specifies if the charging document alleges the first degree felony of burglary with an assault in one count and states in the document that a sexual assault or battery was attempted or completed during the burglary, and if the judgment reflects a conviction for burglary as a first degree felony, the inmate is not eligible for administrative gain time.

   
   

10. Neither Section 944.276, Florida Statutes, nor Rule 33-11.017, Florida Administrative Code, specifically list burglary with assault as an excludable offense. Both refer to Section 917.012(1), Florida Statutes. The section does not specifically list burglary with assault as a sex offense. Sections 917.012(1)(e) and (f) do classify assault or aggravated assault and battery or aggravated battery when a sexual act is completed or attempted as sex offenses.

    
    

11. Petitioner alleges that the Administrative Gain Time booklet exceeds the delegated legislative authority in Section 944.276, Florida Statutes, by adding burglary with assault to the list of sex offenses which render inmates ineligible for administrative gain time.

    
    

12. Since Petitioner lost his two-hundred-eighty days of administrative gain time, Respondent has awarded one-hundred-twenty days of administrative gain time to eligible inmates for the months of September, October, and November, 1987. Petitioner was not awarded the one-hundred-twenty days.

    
    

13. The monthly awards of administrative gain time have varied in amounts due to the fluctuating prison population. If administrative gain time is

    awarded in December, 1987, and subsequent months in yet to be determined amounts, Petitioner will not be granted administrative gain time.

    
    

    CONCLUSIONS OF LAW

    
    

14. Based on the foregoing stipulated facts and on the applicable statutes, rules, and court decisions, I make the following conclusions of law.

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sec. 120.56, Fla. Stat.

    
    

16. The sole statutory authority for a rule challenge to an existing rule is Section 120.56, Florida Statutes. Subsection (1) of the statute provides as the sole basis for a rule challenge a showing that the challenged rule is an "invalid exercise of delegated legislative authority." That statutory term is defined at Section 120.52(8), Florida Statutes (1987) as follows:

    
    

    1. "Invalid exercise of delegated legisla- tive 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 dele- gated 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 contra- venes the specific provisions of law imple- mented, citation to which is required by s.120.54(7);

       4. The rule is vague; fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

       5. The rule is arbitrary or capricious.

          
          

17. Section 944.276(1), Florida Statutes reads as follows:

    
    

    1. Whenever the inmate population of the correctional system reaches 98 percent of lawful capacity as defined in s. 944.598, the secretary of the Department of Corrections shall certify to the Governor that such condition exists. When the Governor acknowledges such certification in writing, the secretary may grant up to a maximum of 60 days administrative gain-time equally to all inmates who are earning incentive gain-time, unless such inmates:

       1. Are serving a minimum mandatory sentence under s. 775.082(1) or s. 893.135;

       2. Are serving the minimum mandatory portion of a sentence enhanced by s. 775.087(2);

       3. Were convicted of sexual battery or any

          sexual offense specified in s. 917.012(1) and have not successfully completed a program of treatment pursuant to s. 917.012; or

       4. Were sentenced under s. 775.084.

    
    

18. The sexual offenses specified in Section 917.012(1), Florida Statutes, are as follows:

    
    

    1. Sexual battery or attempted sexual battery.

    2. Incest or attempted incest.

    3. An unnatural and lascivious act or an attempted unnatural and lascivious act.

    4. Lewd and lascivious behavior.

    5. Assault or aggravated assault when a sexual act is completed or attempted.

    6. Battery or aggravated battery when a sexual act is completed or attempted.

    
    

19. Rule 33-11.017(1) and (2), Florida Administrative Code, reads as follows:

    
    

    1. Eligibility. All inmates, including those in the reception process, those in the custody of another agency, and those in contracted facilities while actively serving a Florida sentence, who are earning incentive gain time and who are not otherwise ineligible as provided in subsection (2) may be awarded administrative gain time.

    2. Ineligibility. No inmate shall be eligible to receive an award of administrative gain time if he:

       1. Is serving a sentence with a minimum mandatory provision pursuant to s. 775.082(1) or a minimum mandatory provision for a drug trafficking offense pursuant to s. 893.135; or

       2. Is serving the minimum mandatory portion of a sentence if the provision was imposed

          due to possession of a firearm or destructive device during the commission of a felony, the penalty for which is enhanced by s.775.087(2); or

       3. Was convicted of sexual battery or any sexual offense specified in s.917.012(1) and has not successfully completed a program of treatment pursuant to s.917.012; or

       4. Was sentenced as a habitual offender pursuant to s.775.084; or

       5. Is not earning incentive gain time. Earning incentive gain time is defined for the purposes of this rule as having had any incentive gain time credited and applied for the previous month, and not having been

    disqualified pursuant to 33-11.0065 during the current month and prior to implementation of the administrative gain time award.

    
    

20. The term "rule" is defined at section 120.52(16), Florida Statutes (1987), which reads as follows, in pertinent part: "Rule" means each agency statement

    of general applicability that implements, interprets, or prescribes law or policy. . . . The term also includes the amendment or repeal of a rule." And, as noted in Florida Aquatic Weed Control, Inc. v.

    Department of Natural Resources, 6 FALR 3972 (1984),

    at pages 3975-77:

    
    

    In McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), the court amplified this statutory definition by holding that a rule is a statement of general applicability, which is intended, by its own effect, to create rights, or to require compliance, or to otherwise have the direct and consistent effect of law. Agency statements which are rules but have not been adopted as rules according to the rulemaking procedure of Section 120.54 are invalid or illicit rules--and subject to invalidation in Section 120.56 proceedings. State Department of Administration v. Stevens, 344 SO.2d 290 (Fla. 1st DCA 1977). In deciding whether an agency statement is a rule, the agency's characterization of the statement is not controlling. State Department of Administration v. Harvey, 356 So.2d 323, 325 (Fla. 1st DCA 1977)("The breadth of the [statutory] definition . . .indicates that the legislature intended the term to cover a great variety of agency statements regardless of how the agency designates them.")

    
    

    Agencies are entitled to some leeway in formulating policy through agency orders. McDonald, Surra. But that latitude does not permit them to, in effect, adopt a rule without complying with rulemaking procedures. Gulfstream Park v. Division of Pari-mutuel Wagering, 407 So.2d 263, 265 (Fla. 3rd DCA 1981). When an agency statement interprets a statute or rule in a way not readily apparent from the language--or which is not derived directly or indirectly from the language--and that interpretive statement has the consistent effect of law, is a rule within the meaning of Section 12O.52[16]--and must be adopted as one. See e g. Gulfstream

    Park, sura; Department of Revenue v. U.S.

    Sugar Corp., 388 So.2d 596 (Fla. 1st DCA 1980); Amos v. Department of Health and Rehabilitative Services, 444 So.2d 43, 46 (Fla. 1st DCA 1983).

    
    

21. The challenged booklet has been promulgated by the Department and on its face it is a statement of general applicability. Further, it has the direct and consistent effect of law, because the mandates of the booklet are applied as the basis for granting or denying administrative gain time. The language at pages 9 and 10 of the booklet dealing with the crime of burglary has the effect of interpreting the authorizing statute and the implementing rule in a manner not readily apparent from either. Further, the subject language at pages 9 and

    10 of the challenged booklet is not derived directly or indirectly from the language of either the authorizing statute or the implementing rule. This is because the challenged portion of the booklet purports to deny administrative gain time to a classification of inmates that is not included in the statutory itemization of inmates who are ineligible for administrative gain time. A conviction for burglary under Section 810.02, Florida Statutes, even when the sentence is enhanced because of an assault or battery committed during the course of the burglary, is not one of the disqualifying criteria under either Section 944.276(1), Florida Statutes, or Rule 33-11.017(1) and (2), Florida Administrative Code.

    
    

22. For the foregoing reasons, it must be concluded that the challenged booklet is a rule within the meaning of Sections 120.51(16) and 120.56, Florida Statutes. Because that rule has been applied to the Petitioner in a manner which affects his substantial interests, and because it will continue to be so applied to him, the Petitioner has standing to challenge the rule. Finally, because the challenged rule enlarges the specific provisions of the law implemented and because the challenged rule has never been the subject of Section 120.54, Florida Statutes, rulemaking proceedings, it is an "invalid exercise of delegated legislative authority" within the meaning of the definition at Section 120.52(8), Florida Statutes.

For the foregoing reasons, it is ORDERED:

That the Department's policy at pages 9 and 10 of the Administrative Gain Time booklet, which policy is to the effect that a conviction for burglary as a first degree felony may disqualify an inmate from receiving administrative gain time is a rule which constitutes an invalid exercise of delegated legislative authority for failure to have been adopted in accordance with the procedures of Section 120.54, Florida Statutes, and for enlarging the provisions of the law implemented.

DONE AND ORDERED this 2nd day of March, 1988, at Tallahassee, Florida.

MICHAEL M. PARRISH,

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1988.

COPIES FURNISHED:

Danny Rivera, #089202

Dade Correctional Institution 19000 S. W. 377 St.

Florida City, Florida 33034

Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Ann Cocheu, Esquire Assistant Attorney General Department of Legal Affairs Room 1603, The Capitol

Tallahassee, Florida 32399-1050

Charles T. Scott, #976553 Dade Correctional Institution 19000 S. W. 377 St.

Florida City, Florida 33034

Liz Cloud, Chief

Bureau of Administrative Code Department of State

Room 1802, The Capitol Tallahassee, Florida 32399-0250

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

NOTICE OF RIGHT TO JUDICIAL REVIEW

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: 87-004692RX

Orders for Case No: 87-004692RX