STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID ANSGAR NYBERG, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6189RU

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

) WALTER WILLIAM HARRIS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7540RU

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to written notice a formal hearing was held in case number 91- 6189RU before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 28, 1991.

APPEARANCES

For Petitioner, David Ansgar Nyberg: Number 049898

David Ansgar Nyberg, pro se Marion Correctional Institution Post Office Box 158

Lowell, Florida 32663 For Petitioner, Walter William Harris:

David Ansgar Nyberg, as

a non-attorney qualified representative For Respondent, the Department of Corrections:

Claire Dryfuss

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

Suite 1603, The Capitol Tallahassee, Florida 32399-1300

STATEMENT OF THE ISSUES

Whether an alleged policy of the Respondent constitutes an unpromulgated "rule" which is an invalid exercise of delegated authority?

PRELIMINARY STATEMENT

On September 26, 1991, the Petitioner in case number 91-6189RU, David Ansgar Nyberg, filed a pleading with the Division of Administrative Hearings titled "Initial Complaint" in which he challenged an alleged policy of the Respondent, the Department of Corrections, as an unpromulgated rule. The matter was assigned to the undersigned by Order of Assignment entered September 27, 1991.

The formal hearing of case number 91-6189RU was conducted by telephone.

The undersigned, the court reporter, counsel for the Department of Corrections, and two witnesses (Fred Roesel and James G. Mitchell) were located in a public hearing room of the Division of Administrative Hearings in Tallahassee, Florida. Mr. Nyberg and two other witnesses (Charles Keith Manning and Simon Ponder) 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 Mr. Nyberg testified on his own behalf and presented the testimony of Charles Keith Manning, Fred Roesel, Simon Ponder and James G. Mitchell. Mr. Nyberg offered two exhibits which were accepted into evidence. The Respondent presented the testimony of Mr. Mitchell and Mr.

Roesel. The Respondent offered one exhibit which was accepted into evidence.

Mr. Nyberg and the Respondent 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. Mr. Nyberg also filed a pleading titled "Closing Arguments."

In the Proposed Final Order filed by Mr. Nyberg in case number 91-6189RU, Mr. Nyberg requested that these cases be consolidated for purposes of this Final Order. Mr. Nyberg, in addition to being the Petitioner in case number 91- 6189RU, is also the qualified representative of the Petitioner in case number 91-7540RU. The request to consolidate was repeated in Closing Arguments pleading filed by Mr. Nyberg in case number 91-6189RU.

Case number 91-7540RU involves a challenge to the same alleged policy of the Respondent challenged in case number 91-6189RU. In both cases it has been argued that the alleged policy is a "rule" as that term is defined in Section 120.52(16), Florida Statutes, that the alleged policy has not been adopted by the Respondent pursuant to the requirements of Section 120.54(7), Florida Statutes, and is, therefore, an invalid exercise of delegated authority.

Case number 91-7540RU was not filed until November 22, 1991, after the formal hearing in case number 91-6189RU was completed. Therefore, the cases could not be consolidated for final hearing. Case number 91-7540RU was placed in abeyance at the request of the Respondent and without objection of the Petitioner in that case pending the issuance of a final order in case number 91- 6189RU.

No hearing has been held in case number 91-7540RU. The only issue, however, involved in case number 91-7540RU which is not involved in case number 91-6189RU is the standing of Walter William Harris. The evidence presented in case number 91-6189RU was sufficient to prove Mr. Harris' standing to bring the instant action. Therefore, other than giving the Respondent an opportunity to address the issue of Mr. Harris' standing (an issue which the Respondent could not have known would be decided as a result of the hearing in case number 91- 6189RU), conducting another formal hearing in case number 91-7540RU would serve no purpose.

Counsel for the Respondent represented to the undersigned that the Respondent had no objection to the issue of Mr. Harris' standing being decided on the basis of evidence presented during the hearing of case number 91-6189RU. Counsel for the Respondent also represented that the Respondent had no objection to these cases being consolidated for purposes of this Final Order.

By Order entered January 8, 1992, these cases were consolidated. This Final Order is dispositive of both cases.

FINDINGS OF FACT

1. Standing.

   
   

   1. The Petitioners, David Ansgar Nyberg and Walter William Harris, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are housed in Marion Correctional Institution.

      
      

   2. The Petitioners are subject to the rules and policies of the Respondent.

      
      

   3. The Petitioners were sentenced pursuant to Section 775.082(1), Florida Statutes.

      
      

   4. The Petitioners were both denied a requested transfer from Marion Correctional Institution to Zephyrhills Correctional Institution, a level 5A institution.

      
      

   5. The Petitioners have standing to institute these proceedings.

      
      

2. The Respondent.

   
   

   1. The Respondent, the Department of Corrections, denied a recommendation that the Petitioners be transferred from Marion Correctional Institution to Zephyrhills Correctional Institution.

      
      

   2. The Respondent, through employees of the Respondent located at its central office (including Fred Roesel and James G. Mitchell), decides where inmates are housed and makes decisions concerning requests for transfers between institutions.

      
      

3. The Alleged Policy.

   
   

   1. In the Initial Complaint filed in case number 91-6189RU and in the Initial Petition filed in case number 91-7540RU, and at the commencement of the formal hearing, Mr. Nyberg indicated that the alleged policy which he believes exists and that the Petitioners are challenging in this proceeding is essentially the following:

      Any inmate sentenced to prison in Florida pursuant to Section 775.082(1), Florida Statutes, is prohibited from being housed in any institution of the Respondent classified as a level 5A or lower numbered institution regardless of the inmates custody classification, the amount of time the inmate has served, the inmate's behavior or the recommendation of the superintendent of the institution the inmate is housed in.

      
      

   2. Section 775.082(1), Florida Statutes, provides the following:

      
      

      1. A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole unless the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, and in the latter event such person shall be punished by death.

         
         

4. The Evidence Failed to Prove the Existence of the Alleged Policy.

   
   

   1. The evidence failed to prove that the precise alleged policy challenged by the Petitioners as stated in finding of fact 8 is an existing policy of the Respondent.

      
      

   2. The institutions in which inmates are housed by the Respondent are classified as level one through level seven institutions. Generally, the higher the level of an institution, the greater the security.

      
      

   3. There are four custody grades for inmates: minimum, medium, close and maximum. An inmate's classification determines the security risk of that particular inmate.

      
      

   4. In determining which institution an inmate should be housed in, the Respondent has a general policy, as specified by Chapter 33-6, Florida Administrative Code, to consider many factors, including custody grades, the offense for which sentenced, the type of facility that is recommended and the medical grade of the inmate.

      
      

   5. It is not the policy of the Respondent to exclude an inmate from being housed in a level 5 or lower level institution without taking into account the inmate's custody grade merely because the inmate was sentenced pursuant to Section 775.082(1), Florida Statutes.

      
      

   6. The Respondent apparently has a policy of not placing inmates in a level 5A institution if, among circumstances not relevant here, the following circumstances exist:

      
      

      1. The inmate has been classified as close custody grade; and

         
         

      2. The inmate is serving a life sentence with a mandatory twenty-five years.

      
      

   7. The apparent policy set out in finding of fact 15 is contained on page

      23 of a document referred to as the "Custody Classification Instructions." The

      apparent policy as set out in the Instructions, unlike the policy challenged by the Petitioners, takes into account, and is based upon, the custody grade of the inmate. Therefore, the apparent policy set out in finding of fact 15 is inconsistent with the policy challenged by the Petitioners and supports a conclusion that the policy challenged by the Petitioners does not exist.

      
      

   8. An inmate who has been sentenced pursuant to Section 775.082(1), Florida Statutes, may be housed in a level 5 or lower level institution as long as the inmate is not classified as close custody.

      
      

   9. The reason for not housing close custody inmates who meet any of the conditions set out on page 23 of the Custody Classification Instructions in a level 5 or lower level institution is that close custody inmates have not been assigned release dates and, therefore, constitute a greater security risk.

      
      

   10. The evidence failed to prove that the Custody Classification Instructions are contrary to, or inconsistent with, the provisions of Chapter 33-6, Florida Administrative Code.

       
       

5. Denial of Mr. Nyberg's Recommended Transfer.

   
   

   1. It was recommended by personnel at Marion Correctional Institution that Mr. Nyberg be transferred to Zephyrhills Correctional Institution. Mr. Nyberg was classified as close custody at the time the transfer request was made.

      
      

   2. The recommended transfer of Mr. Nyberg was denied by the Respondent through its Classification Department in Tallahassee, Florida.

      
      

   3. In light of the fact that Mr. Nyberg was sentenced pursuant to Section 775.082(1), Florida Statutes, and was classified in a medium custody grade at the time his transfer request was denied, Mr. Nyberg apparently concluded that the denial of his transfer was based upon the challenged policy. The evidence failed to prove this conclusion is correct.

      
      

   4. The evidence proved that Mr. Nyberg's transfer was denied after consideration of the length of time he has been in Marion Correctional Institution, the location of his current institution, the recommended time between transfers and the facility recommended.

      
      

   5. The evidence failed to prove that Mr. Nyberg's transfer was denied because of the alleged policy challenged by the Petitioners: his transfer was not denied solely because he was sentenced pursuant to Section 775.082(1), Florida Statutes and without regard to his custody grade.

      
      

6. Denial of Mr. Harris' Transfer.

   
   

   1. The Respondent also denied a requested transfer to Zephyrhills Correctional Institution of Mr. Harris.

      
      

   2. A teletype from the Tallahassee office of the Respondent indicated the following concerning the denial of Mr. Harris' transfer:

      
      

      Transfer to Zephyrhills was disapproved 8-14-91, ACI is now a Category 5-A, cannot house life with 25- mandatory.

      This explanation was also included as the response from Mr. Harris' classification officer, Simon Ponder, on the form DC-3005 (the request for transfer form) (Petitioner's exhibit 2) filed by Mr. Harris.

      
      

   3. Mr. Ponder, who is not involved in formulating policies of the Respondent, assumed during the formal hearing that the rational given for denying Mr. Harris' transfer was the same rational for denying Mr. Nyberg's transfer. Mr. Ponder did not testify that he had any personal knowledge of the reason why Mr. Nyberg's transfer was denied, however.

      
      

   4. At best the evidence concerning Mr. Harris' denied transfer tends to prove that Mr. Harris' transfer was denied because he is serving a life sentence with a mandatory twenty-five years and because he is classified as close custody. Therefore, the denial of Mr. Harris' requested transfer was not made without regard to his custody classification which is an essential factor in the alleged policy challenged by the Petitioners.

      
      

   5. The evidence failed to prove that Mr. Harris' transfer was denied because of the alleged policy challenged by the Petitioners: his transfer was not denied solely because he was sentenced pursuant to Section 775.082(1), Florida Statutes and without regard to his custody status.

      
      

7. Denial of David Ray Martin's Transfer.

   
   

   1. The Respondent denied a transfer to Zephyrhills Correctional Institution of David Ray Martin, another inmate.

      
      

   2. A teletype was sent to the Tallahassee office of the Respondent by Charles Manning, a correctional probation officer II, in which Mr. Manning indicated the following concerning the Mr. Martin's transfer:

   
   

   Subject was recommended for Zephyrhills CI for a good adjustment transfer. Please note that he has a 25-year mandatory; and, therefore, does not meet the criteria for a Category 5-A institution. Please divert to Polk CI 580, and excuse the error. Thanks, Chuck.

   
   

   1. Mr. Manning, who is not involved in establishing policy for the Respondent, admitted at the formal hearing that he had incorrectly assumed when he sent the teletype quoted in finding of fact 30 that the Respondent had such a policy.

      
      

   2. Mr. Manning's incorrect assumption concerning the policy of the Respondent was probably based upon the language of the Custody Classification Instructions concerning inmates classified as close custody who are serving a life sentence with a mandatory twenty-five years. Mr. Manning apparently confused the policy which may be evidenced in the Custody Classification Instructions with the alleged policy at issue in this proceeding.

      
      

8. Conclusion.

1. The Petitioners have failed to prove that the Respondent has a policy that inmates who are sentenced pursuant to Section 775.082(1), Florida Statutes, may not be housed in a level 5 or lower numbered level institution without regard to the custody classification of the inmate, the amount of time the inmate has served, the inmate's behavior or the recommendation of the superintendent of the institution the inmate is housed in.

2. At best the Petitioners presented evidence which may support a finding that the Respondent has a policy that inmates who are classified as close custody and who are serving a life sentence with a mandatory twenty-five years may not be housed in a level 5A institution. That is not the policy being challenged by the Petitioners, however, and no such finding of fact is necessary to dispose of these cases.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

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

   
   

   1. Standing.

      
      

4. The Petitioners have standing to institute the instant action. They are incarcerated by the Respondent and would be subject to the alleged policy of the Respondent, if it had been proved to exist. See Department of Corrections

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

   
   

   1. Nature of the Petitioners' Challenge.

      
      

5. The Petitioners have alleged that the Respondent has a policy which constitutes a rule within the definition of a "rule" under Section 120.52(16), Florida Statutes. The Petitioners have further alleged that this "rule" is an "invalid exercise of delegated authority" under Section 120.52(8)(a), Florida Statutes:

   
   

   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;

         . . . .

         
         

6. In particular, the Petitioners alleged that the following policy of the Respondent exists and constitutes an unpromulgated "rule":

   
   

   Any inmate sentenced to prison in Florida pursuant to Section 775.082(1), Florida Statutes, is prohibited from being housed in any institution of the Respondent classified as a level 5A or lower numbered institution regardless of the inmates custody classification, the amount of time the inmate has served, the inmate's behavior or the recommendation of the superintendent of the institution the inmate is housed in.

   
   

   It is this alleged policy, and only this alleged policy, that is at issue in this proceeding.

   1. Burden of Proof.

      
      

7. The burden of proof in this proceeding was on the Petitioners. 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).

   
   

8. In order to prevail, the Petitioners were required to prove essentially three things (in addition to their standing):

1. The existence of the alleged policy;

   
   

2. The policy comes within the definition of a "rule" contained in Section 120.52(16), Florida Statutes; and

   
   

3. The policy was not adopted as a rule pursuant to the requirements of Section 120.54(7), Florida Statutes.

1. The Petitioners Failed to Prove the Alleged Policy Exists.

1. The evidence presented in these cases failed to prove that the specific policy which the Petitioners raised in the Initial Complaint and in the Initial Petition, and as expressed at the commencement of the hearing, is in fact a policy of the Department.

   
   

2. Mr. Nyberg, in arguing that the alleged policy exists, has attempted to prove the existence of the policy be attacking the credibility of the witnesses. At best, it may be argued that some of the Respondent's witnesses were maybe too precise in there responses. To conclude that those witnesses were therefore not credible, however, is totally unsupported by the weight of the evidence. Not volunteering information or limiting one's answers to the precise questions asked is not justification for concluding that a witness was not credible.

   
   

3. The fact that the witnesses who are responsible for policy decisions in this area (Mr. Mitchell and Mr. Roesel) testified that the precise policy alleged by the Petitioners to exist does not in fact exist, although frustrating to the Petitioners, cannot be ignored. Their testimony was credible and has been accepted.

   
   

4. Part of Mr. Nyberg's difficulty in accepting the fact that it has not been proved that the policy that has been challenged exits is his apparent confusion concerning the policy which has been alleged to exist and the policy which the evidence may have proved the Respondent does enforce. The policy that may have been proved to exist (that inmates who are classified as close custody and are serving a life sentence with a mandatory twenty-five years) obviously caused confusion to Mr. Manning and Mr. Ponder.

   
   

5. Mr. Manning's and Mr. Ponder's testimony proved that they may have been aware of page 23 of the Custody Classification Instructions and the application of those instructions. Both Mr. Manning and Mr. Ponder apparently assumed that the policy alleged to exist by the Petitioners was the same policy that may be evidenced on page 23 of the Custody Classification Instructions.

   Mr. Manning and/or Mr. Ponder had been involved in the application of the instructions on page 23 of the Custody Classification Instructions to the requests for transfer of Mr. Harris and Mr. Martin. The alleged policy challenged in these cases and the apparent reason for the denial of Mr. Harris' and Mr. Martin's transfer requests are very similar. It is understandable that Mr. Manning and Mr. Ponder would reach the conclusions they reached. It is also understandable that Mr. Nyberg would reach the conclusion he reached.

   
   

6. After considering all of the evidence, however, the only reasonable conclusion which can be reached is that the policy which the Petitioners challenged does not exist. The policy which may have been proved to exist was not the policy challenged by the Petitioners.

   
   

7. Having failed to prove that the alleged policy at issue in these cases exists, there is no need to determine whether such a policy constitutes a "rule" as defined in Section 120.52(16), Florida Statutes, or whether the alleged "rule" was not adopted pursuant to Section 120.54, Florida Statutes.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petitioners have failed to prove that alleged policy of

the Respondent challenged in this proceeding exists. Consequently, the

Petitioners have failed to prove that any "rule" of the Respondent is an invalid exercise of delegated authority in violation of Section 120.56, Florida Statutes, and the Initial Complaint filed in case number 91-6189RU and the Initial Petition filed in case number 91-7540RU are DISMISSED.

DONE and ENTERED this 9th day of January, 1992, 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 January, 1992.

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 Final 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 Petitioners' Proposed Findings of Fact

Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

11 Not a finding of fact.

12 1-2 and 5.

13-20 Although these proposed findings of fact do contain accurate quotations of testimony, the underlying proposed facts which the Petitioners contend the testimony proves are rejected. These underlying facts are not supported by a consideration of all of the evidence in these cases.

1. The first sentence is correct. The rest of the proposed findings of fact is not supported by the weight of the evidence.

   
   

2. Although generally true, the suggestion that Mr. Ponder was the only credible witness is not supported by the weight of the evidence.

   
   

3. See 26 and 27.

24 15.

25-26 20.

27 22.

28 Hereby accepted.

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.

2 6.

3-4 8 and hereby accepted.

5 Hereby accepted.

6 7.

7 4.

8 23.

1. See 14.

2. See 13.

11 11.

12 12.

13 22.

14 See 14, 17 and 33-34.

1. Hereby accepted.

2. See 19.

3. Hereby accepted.

18 26-27.

19 26.

20 27.

21-23 31.

24-25 Hereby accepted.

26 3.

27 15.

28-29 14, 17 and 33-34.

30-31 Hereby accepted.

COPIES FURNISHED:

David Ansgar Nyberg No. 049898

Marion Correctional Institution Post Office Box 158-575

Lowell, Florida 32663

Walter William Harris No. 063628

Marion Correctional Institution Post Office Box 159-1165 Lowell, Florida 32663

Donna Malphurs Suite 439

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Claire Dryfuss

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 32399-2400

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: 91-006189RU

Orders for Case No: 91-006189RU