STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID ANSGAR NYBERG, )

)

Petitioner, )

)

vs. ) CASE NOS. 91-6699RX

) 92-0338RE

DEPARTMENT OF CORRECTIONS, ) 92-0454RP

)

Respondent. )

)

FINAL ORDER

Pursuant to written notice a formal hearing was held in these cases before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 3, 1992.

APPEARANCES

For Petitioner: David Ansgar Nyberg, pro se Number 049898 Marion Correctional Institution

Post Office Box 158-575 Lowell, Florida 32663

For Respondent: 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

1. Whether Rule 33ER91-3, Florida Administrative Code, constitutes an invalid exercise of delegated authority?

   
   

2. Whether a proposed amendment to Rule 33-6.0045(2), Florida Administrative Code, constitutes an invalid exercise of delegated authority?

PRELIMINARY STATEMENT

Case Number 91-6699RX.

On October 16, 1991, the Petitioner, David Ansgar Nyberg, and another inmate, Eugene Daniel Goss, filed a pleading titled "Initial Complaint" in which it was alleged that the Respondent, the Department of Corrections, had adopted an alleged unpromulgated rule. It was alleged that the unpromulgated rule consisted of two parts: (1) the Respondent has a classification designation of inmates referred to as "V.02" which is a "sex offenders" classification, although inmates who have not been convicted as sex offenders are also included

in the classification; and (2) inmates classified as "V.02" are placed in medium custody even if they otherwise qualify for minimum custody.

Case number 91-6699RX was assigned to the undersigned by an Order of Assignment entered October 22, 1991. The final hearing of case number 91-6699RX was scheduled for November 18, 1991.

At the commencement of the final hearing of case number 91-6699RX, the Respondent filed a copy of an emergency rule, Rule 33ER91-3 (hereinafter referred to as the "Emergency Rule"), it had promulgated. The Emergency Rule provided, among other things, that inmates convicted of a sex offense described in Section 944.277(1)(c)-(f), Florida Statutes, or who have been certified as mentally disordered sex offenders pursuant to Chapter 917, Florida Statutes, are not to be assigned to minimum custody status unless they have successfully completed the mentally disordered sex offender program.

Based upon the provisions of the Emergency Rule Petitioner Goss indicated that his challenge was moot. It was agreed that Petitioner Goss would be treated as having withdrawn from this proceeding. Petitioner Goss was therefore dismissed by an order entered December 18, 1991.

The Emergency Rule did not moot the Petitioner's challenge. An ora tenus motion to dismiss the Petitioner, for lack of standing was granted, however.

On November 25, 1991, the Petitioner filed a Brief on Standing, Request for Leave to Amend Petition, and Request to Reschedule Hearing. In the Amended Petition, the Petitioner dropped the challenge to the second part of the alleged policy set out, supra, and limited his challenge to an alleged policy of the Respondent that created a classification designation of inmates referred to as "V.02", which is for sex offenders, and that the Respondent includes inmates in the V.02 classification who have not been convicted as sex offenders.

As explained in the December 18, 1991, order dismissing Petitioner Goss, the request for leave to amend petition and request to reschedule hearing was granted.

On January 6, 1992, a Second Notice of Hearing was entered scheduling the final hearing for February 3, 1992.

At the commencement of the final hearing, the Respondent stipulated that it indeed had a policy as alleged by the Petitioner, that the policy comes within the definition of a "rule" as defined in Section 120.52(16), Florida Statutes, and that it had not adopted the policy pursuant to Section 120.54, Florida Statutes. Based upon this stipulation and the Respondent's promulgated rules which are at issue in case numbers 92-0338REP and 92-0454RPP, the Respondent argued that the Petitioner's challenge in case number 91-6699RX is moot. The Petitioner argued that the stipulation requires a declaration that, based upon the Respondent's stipulation that such a policy exists and that it is an unpromulgated rule, the policy is an invalid exercise of delegated legislative authority.

Case Number 92-0338REP.

On January 17, 1992, the Petitioner filed a pleading titled "Initial Complaint, Emergency Rule Challenge" challenging the Emergency Rule pursuant to Sections 120.56(1)-(4), Florida Statutes. This challenge was assigned to the undersigned pursuant to an Order of Assignment entered January 21, 1992. A

Notice of Hearing entered January 22, 1992, scheduled the final hearing for February 3, 1992.

Case Number 92-0454RPP.

On January 27, 1992, the Petitioner filed another pleading titled "Initial Complaint" challenging a proposed amendment to Rule 33-6.0045(2), Florida Administrative Code. An Order of Assignment was entered January 29, 1992, assigning the case to the undersigned.

Consolidated Cases.

The Petitioner filed a Notice of Similar Case, Offer to Consolidate and Offer to Waive Time Limit with his Initial Complaint in case number 92-0454RPP. On January 3, 1992, all three cases were consolidated by an Order of Consolidation and the parties were informed that all three cases would proceed to final hearing on February 3, 1992.

The formal hearing of these cases was conducted by telephone. The undersigned, the court reporter, counsel for the Department of Corrections, and two witnesses were located in a hearing room of the Division of Administrative Hearings in Tallahassee, Florida. The Petitioner and one other witness 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 the Petitioner presented the testimony of Simon Ponder, Fred Roesel and James G. Mitchell. Petitioner offered nine exhibits. Petitioner's exhibits 1-7 were accepted into evidence. Petitioner's exhibits 8-

9 were rejected.

By agreement of the parties, the Petitioner filed his testimony in writing after the close of the final hearing. The Respondent filed Objections to Written Testimony of Petitioner and the Petitioner filed a Response to Objections to Written Testimony of Petitioner. The Petitioner's written testimony has been read and considered to the extent relevant to this proceeding. To the extent that the Petitioner's testimony constitutes hearsay, no finding of fact has been made which is based solely upon the Petitioner's testimony. The other objections have been considered in the weight given to the Petitioner's testimony.

The Respondent presented its case through cross examination. The Respondent offered no exhibits.

During the final hearing the undersigned took official recognition of Chapter 917, Florida Statutes (1975 and 1977).

During the Petitioner's opening statement the Petitioner raised constitutional issues for the first time. After objection by the Respondent, the Petitioner argued that paragraph's 25 and 26 of his Initial Complaint in case number 92-0454RPP give the Respondent adequate notice of his intent to raise constitutional issues. A ruling on the Respondent's objection was reserved. The Respondent's objection is hereby overruled. Paragraphs 25 and 26 of the Initial Complaint in case number 92-0454RPP are sufficient to put the Respondent on notice of the Petitioner's intent to raise constitutional arguments. The Respondent could have requested a more definite statement to determine the specific issues the Petitioner intended to raise.

The parties have 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.

FINDINGS OF FACT

1. Standing.

   
   

   1. The Petitioner, David Ansgar Nyberg, is an inmate in the custody of the Respondent, the Department of Corrections, at Marion Correctional Institution.

      
      

   2. The Petitioner is subject to the rules of the Respondent, including the rules at issue in this proceeding.

      
      

   3. The Petitioner is not currently eligible for minimum custody classification even if the rules at issue did not apply to the Petitioner. Nor was the Petitioner eligible for minimum custody during the period of time that the policy challenged in case number 91-6699RX was in effect or the period of time during which the Emergency Rule applied.

      
      

2. The Respondent.

   
   

   1. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida.

      
      

   2. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida.

      
      

3. The Emergency Rule and Rule 33-6.0045(2)(g), Florida Administrative Code.

   
   

   1. Rule 33-6.0045, Florida Administrative Code, establishes custody classifications for inmates. Custody classifications determine, among other things, the facility to which an inmate may be assigned and the degree of security an inmate is subjected to.

      
      

   2. Inmates are classified as minimum, medium, close or maximum custody, with minimum being the least restrictive and maximum being the most restrictive.

      
      

   3. The procedure to be followed in classifying each inmate is provided in Rule 33-6.0045(2), Florida Administrative Code.

      
      

   4. The Emergency Rule and the Proposed Rule amend Rule 33-6.0045(2), Florida Administrative Code, by adding three paragraphs, including the following pertinent paragraph challenged by the Petitioner:

      
      

      (g) Any inmate who has been certified as a mentally disordered sex offender pursuant to ch. 917, FS shall not be assigned to minimum custody status unless they have successfully completed the mentally disordered sex offender program.

      
      

   5. The Emergency Rule and the proposed amendment to Rule 33-6.0045, Florida Administrative Code (hereinafter referred to as the "Proposed Rule"),

      include the same substantive amendments to Rule 33-6.0045, Florida Administrative Code.

      
      

   6. The Emergency Rule was only effective during part of 1991, prior to promulgating the Proposed Rule.

      
      

4. Relevant Effect of the Emergency Rule and the Proposed Rule.

   
   

   1. Chapter 917, Florida Statutes (1975), which is titled "mentally disordered sex offenders" provided, in pertinent part, the following:

      
      

      917.14 Certifying defendant for hearing.--

      1. The court may suspend the sentence and certify a defendant for a hearing and examination in the circuit court to determine whether the person is a mentally disordered sex offender if:

         1. The person is convicted of a felony or misdemeanor for which he is currently being prosecuted, whether or not the crime is a sex offense;

         2. There is a probable cause to believe that the person is a mentally disordered sex offender; and

         3. The mental disorder has existed for at least the immediately preceding 4 months.

      2. The court may certify a person under subsection

      (1) on its own motion, on motion by the State Attorney, or on application by affidavit of the defendant.

      
      

   2. A "mentally disordered sex offender" is defined in Section 917.13, Florida Statutes (1975), as follows:

      
      

      "Mentally disordered sex offender" means a person who is not insane but who has a mental disorder and is considered dangerous to others because of a propensity to commit sex offenses.

      
      

   3. Any person determined to be a mentally disordered sex offender was to be committed "to the custody of the Department of Offender Rehabilitation for care, treatment, and rehabilitation." Section 917.19, Florida Statutes (1975).

      
      

   4. The definition of a "mentally disordered sex offender" was modified in 1977. Pursuant to Section 917.13, Florida Statutes (1977), a "mentally disordered sex offender" was defined as follows:

      
      

      1. A "mentally disordered sex offender" or "offender is a person who:

         1. Has been convicted of or pleaded guilty or no contest to a sex offense or attempted sex offense in a current prosecution;

         2. Suffers from a nonpsychotic mental or emotional disorder, yet is competent; and

         3. Is likely to commit further sex offenses if permitted to remain at liberty.

            
            

   5. Subsequent to 1977, the classification of an offender as a mentally disordered sex offender was repealed.

   6. Pursuant to the Emergency Rule and the Proposed Rule, any person who has been determined to be a mentally disordered sex offender who has NOT successfully completed the mentally disordered sex offender program may not be classified as minimum custody.

      
      

5. The Statutory Authority for the Emergency Rule and the Proposed Rule.

   
   

   1. The specific authority for the Emergency Rule and the Proposed Rule is Sections 20.315, 944.09 and 958.11, Florida Statutes.

      
      

   2. The specific laws implemented by the Emergency Rule and the Proposed Rule is Sections 20.315, 921.20, 944.09 and 958.11, Florida Statutes.

      
      

   3. The Respondent intends to add by technical amendment the following additional statutory authority for the Emergency Rule and the Proposed Rule: Sections 944.17 and 944.1905, Florida Statutes.

      
      

6. The Rationale for the Emergency Rule and the Proposed Rule.

   
   

   1. The immediate danger to the public health, safety and welfare which the Respondent indicated justified promulgating the Emergency Rule pursuant to Section 120.54(9), Florida Statutes, was set out in the Notice of Emergency Rulemaking:

      
      

      The rule is necessary in order to prevent convicted sex offenders, inmates certified as mentally disordered sex offenders, and aliens who are subject to deportation from being assigned minimum custody status. The department's current classification policy permits the classification of minimum custody for these inmates who, by their nature, present an extraordinary threat to public safety should they escape, or, in the case of aliens, present an inordinate escape risk because of the threat to deportation. The sex offenders being addressed are those who are or have been previously convicted of sex offenses listed in s.944.277(1), which are those sex offenses which exclude inmates from awards of provisional credits, and therefore identify them as a category of offenders who present a threat to public safety. The rule also addresses those persons certified as mentally disordered sex offenders under ch. 917 FS, who are considered dangerous to others because of a propensity to commit sex offenses.

      Experience has shown that one of the categories of inmates that are the greatest risk of escape are those subject to deportation, which in certain cases, would subject them to severe penalties in their native countries. Without an emergency rule, these categories of offenders could be reduced to minimum custody and permitted placement on public work squads or other outside work assignments with little or no supervision. The emergency rule presents a mechanism to ensure that these inmates are retained in a secure perimeter or under direct supervision.

   2. Although the Notice of Emergency Rulemaking indicates that there are only two inmates who are classified as mentally disordered sex offenders under Chapter 917, Florida Statutes, there may be more. The number referenced in the Notice does not include former inmates who have been released, with or without further supervision, who may commit offenses in the future which could result in their return to prison.

      
      

   3. Additionally, it is possible that Chapter 917, Florida Statutes, or a similar statute, could be enacted in the future resulting in the classification of additional inmates as mentally disordered sex offenders. In fact, Chapter 917, Florida Statutes, has been repealed and then reenacted in the past.

      
      

   4. Even if there are only two inmates classified as mentally disordered sex offenders, the evidence failed to prove that the potential threat from a single inmate classified as a mentally disordered sex offender is not sufficient justification for the Emergency Rule and the Proposed Rule.

      
      

   5. Although the Respondent was aware at the time of promulgating the challenged rules that the Emergency Rule and the Proposed Rule would apply to the Petitioner, who is one of the inmates currently in prison who is classified as a mentally disordered sex offender, the weight of the evidence failed to prove that the Respondent was "out to get the Petitioner." The Petitioner failed to prove that the Petitioner adopted the Emergency Rule or the Proposed Rule only because they apply to the Petitioner.

      
      

   6. The purpose for promulgating the Emergency Rule and the Proposed Rule was to protect the public. By the very definition of a mentally disordered sex offender under Chapter 917, Florida Statutes, persons determined to be mentally disordered sex offenders are considered likely to constitute a continuing threat. Pursuant to the definition of a mentally disordered sex offender contained in the 1975 statutes, such a person "is considered dangerous to others because of a propensity to commit sex offenses." Section 917.13, Florida Statutes (1975). As defined in the 1977 statutes, such a person "[i]s likely to commit further sex offenses if permitted to remain at liberty." Section 917.13(1)(c), Florida Statutes (1977).

      
      

   7. Persons classified as minimum custody are subject to less security. They may be placed on work programs which take them out of the institution. Allowing a person who has been determined by the courts of Florida to be likely to commit further sex offenses or to have a propensity to commit sex offenses and who have not completed programs intended to correct such tendencies, has the potential of placing the public at unnecessary risk.

      
      

7. The Impact of the Emergency Rule and the Proposed Rule on the Petitioner and the Petitioner's Challenge.

   
   

   1. The Petitioner was charged with, and convicted of, first degree murder in 1975. He was sentenced to life imprisonment and was required to serve a minimum of 25 years.

      
      

   2. The Petitioner was not charged with any sex offense.

      
      

   3. Subsequent to the Petitioner's conviction, his defense attorney suggested that the Petitioner request that he be classified as a mentally disordered sex offender pursuant to Chapter 917, Florida Statutes (1975).

   4. The Petitioner did in fact request that he be classified as a mentally disordered sex offender. Pursuant to Section 917.14(2), Florida Statutes (1975), such a request was required to be made by "affidavit of the defendant."

      
      

   5. The Petitioner's request to be classified as a mentally disordered sex offender was granted on December 19, 1975, by then Circuit Court Judge Charles

8. Scruggs, III.

1. There was no requirement that a person classified as a mentally disordered sex offender in 1975 actually be convicted of having committed a sex offense. There was, however, a requirement that the sentencing judge determine that the person being classified as a mentally disordered sex offender:

   
   

   1. Have a mental disorder; and

   2. Be considered dangerous to others because of a propensity to commit sex offenses.

   It was not necessary under Chapter 917, Florida Statutes (1975), that it be shown that the person ever actually committed a sex offense. It was only necessary that the person show a propensity or inclination to commit a sex offense in the future.

   
   

2. On April 1, 1976, the Petitioner was transferred from a correctional institution to the state mental hospital in Chattahoochee, Florida.

   
   

3. In March, 1980, the Petitioner was resentenced and returned to a correctional institution. Judge Scruggs recommended that the Petitioner be placed in minimum custody.

   
   

4. The Petitioner is currently classified as medium custody. Even without the Emergency Rule or the Proposed Rule, the Petitioner has not been eligible for classification as minimum custody. Nor is the Petitioner currently eligible for minimum custody. Should the Petitioner, who has had no disciplinary reports during his seventeen years incarceration by the Respondent, otherwise become eligible for minimum custody in the future, he will not be so classified because of the Proposed Rule.

   
   

5. In light of the fact that the Petitioner was not eligible for minimum custody during the period of time that the Emergency Rule was effective, the Emergency Rule had no impact on the Petitioner and he lacks standing to challenge the Emergency Rule.

   
   

6. The Petitioner failed to prove that he has successfully completed the mentally disordered sex offender program.

   
   

7. The Petitioner was involved in a sex offense committed against him when he was a child.

   
   

8. Pursuant to the Emergency Rule and the Proposed Rule the Petitioner will not be eligible for minimum custody because he was classified as a mentally disordered sex offender and has apparently not successfully completed the mentally disordered sex offender. Nor can the Petitioner successfully complete the program since it is no longer provided.

   
   

9. The Petitioner has alleged that the Emergency Rule and the Proposed Rule are invalid because they are arbitrary and capricious.

10. The Petitioner has also alleged that the Emergency Rule is invalid because no emergency existed when it was promulgated.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

11. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.54, Florida Statutes (1991).

    
    

    1. Standing.

       
       

12. The Petitioner has standing to institute his challenge in case number 92-0454RPP. He is incarcerated by the Respondent and subject to the rules of the Respondent, including the Proposed Rule at issue in this proceeding. When, and if, the Petitioner otherwise becomes eligible for minimum custody, the Proposed Rule will prevent such a classification. See Department of Corrections

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

    
    

13. The evidence failed to prove, however, that the Petitioner has standing to challenge the Emergency Rule or the policy of the Respondent challenged in case number 91-6699RX. In order to prove standing to challenge the Emergency Rule or the policy, the Petitioner was required to prove that the Emergency Rule and the policy subjected him to an injury of sufficient immediacy and that the injury was of a type this proceeding is designed to protect. See Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2d DCA 1979). The Petitioner failed to prove that he has, or will, suffer any injury as a result of the Emergency Rule or the policy challenged in case number 91-6699RX.

    
    

14. The policy only applied until the Emergency Rule was adopted in 1991. The Emergency Rule was only effective for a limited period of time after it was adopted. During that time the Petitioner was not otherwise entitled to be classified as a minimum custody inmate. The Petitioner, therefore, failed to prove that there was any impact on him from the Emergency Rule or the policy challenged in case number 91-6699RX. His challenge in case number 91-6699RX and case number 92-0338REP will, therefore, be dismissed.

    
    

    1. Nature of the Petitioner's Challenge.

       
       

15. The only appropriate challenge to an existing rule which may be brought before the Division of Administrative Hearings is a challenge pursuant to Section 120.56, Florida Statutes. The only relief which may be sought pursuant to Section 120.56, Florida Statutes, is a determination of the invalidity of the rule on the ground that the rule is an "invalid exercise of delegated legislative authority."

    
    

16. What constitutes an "invalid exercise of delegated legislative authority" is defined in Section 120.52(8), Florida Statutes, as follows:

    
    

    1. "Invalid exercise of delegated legislative 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;

       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 contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

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

       5. The rule is arbitrary or capricious.

    
    

17. In order to challenge an existing rule, the person bringing the challenge must state with particularity which portion(s) of the above definition the challenged rule violates and the specific facts supporting such an allegation.

    
    

18. In this case, the Petitioner has alleged that the Proposed Rule constitutes an "invalid exercise of delegated legislative authority" in violation of Section 120.52(8)(e), Florida Statutes.

    
    

    1. Burden of Proof.

       
       

19. The burden of proof in this proceeding was on the Petitioner. 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).

    
    

    1. The Validity of the Proposed Rule,.

    
    

20. The Petitioner has alleged that Proposed Rule is invalid pursuant to Sections 120.52(8)(e), Florida Statutes. In particular, the Petitioner has argued that "[t]here was no evidence that M.D.S.O.'s who have not been convicted of any offense involving sex, which is the class affected by subsection (g) . .

    . are any greater risk to the public than any other prisoner. Therefore the classification as relates to this class . . . is arbitrary."

    
    

21. The Petitioner's argument fails to recognize the test to be applied in determining whether the Proposed Rules is arbitrary or capricious. The question is not whether there is any justification for treating one category of inmates differently from another category of inmates. The question is whether the Respondent acted with thought or reasons in dealing with mentally disordered sex offenders and whether the Respondent's actions are supported by facts or logic.

    
    

22. An arbitrary and capricious action has been defined as follows:

    
    

    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.

    
    

    Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2d DCA 1979).

23. The evidence failed to prove that the Respondent's decision to not allow mentally disordered sex offenders to be placed in minimum custody was taken without thought or reason or was irrational. The evidence also failed to prove that the Respondent's action is not supported by facts or logic. The evidence proved that any person classified as a mentally disordered sex offender was determined by a court of law to be considered likely to constitute a continuing threat to the public. Pursuant to the definition of a mentally disordered sex offender contained in the 1975 statutes, the court was required to determined that such a person "is considered dangerous to others because of a propensity to commit sex offenses." Section 917.13, Florida Statutes (1975).

    As defined in the 1977 statutes, the court was required to determine that such a person "[i]s likely to commit further sex offenses if permitted to remain at liberty." Section 917.13(1)(c), Florida Statutes (1977).

    
    

24. Persons classified as minimum custody are subject to less security. They may be placed on work programs which take them out of the institution. The risk of escape while in minimum custody is, therefore, greater.

    
    

25. Based upon the foregoing, it cannot be said that the Respondent acted without thought or reason, or that its actions were not supported by facts or logic, in attempting to protect the public by minimizing the potential of an escape by a person who has been determined by the courts of Florida to be likely to commit further sex offenses or to have a propensity to commit sex offenses unless that person has completed a program intended to correct such tendencies For the Respondent to ignore the potential harm to the public would be unreasonable.

    
    

26. In support of his challenge the Petitioner argued that the Proposed Rule is arbitrary because of the number of inmates classified as mentally disordered sex offenders. This argument is rejected. The Respondent's actions are reasonable because the risk to the public from one inmate should reduced.

    
    

27. The Petitioner also suggested that the Proposed Rule is arbitrary because the Respondent's actions are contrary to the specific authority for the Proposed Rule and the laws implemented by the Proposed Rule. The weight of the evidence failed to support this argument.

    
    

28. The Petitioner presented evidence which presumably the Petitioner believes proves the Proposed Rule is arbitrary because the employees of the Respondent who considered the need for the Proposed Rule did not have any statistical, scientific or other reports or studies before them. There is nothing in Chapter 120, Florida Statutes, that requires that agency decisions must in all cases be based upon statistical, scientific or other reports or studies. All that is required is that agency policies adopted as rules not be arbitrary or capricious. Statistical, scientific or other reports or studies are not a prerequisite to reaching a reasonable and logical decision.

    
    

29. Finally, the Petitioner has suggested that the Proposed Rule is invalid because it "constitutes a Bill of Attainder as it is aimed at a particular person, Nyberg; it does not further a non-punitive correctional goal; and is both punishment and appears from the record to be punishment." The evidence in this proceeding failed to support these arguments.

    
    

30. Based upon the foregoing, it is concluded that the Petitioner proved to prove that the Proposed Rule is "arbitrary or capricious". Therefore, the Proposed Rule does not constitute an invalid exercise of delegated legislative

authority pursuant to Section 120.52(8)(e), Florida Statutes, in violation of Section 120.54, Florida Statutes.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petitioner has failed to prove that he has standing to

institute the proceedings in case numbers 91-6699RX or 92-0338REP and has failed

to prove that the proposed amendment to Rule 33-3.0045, Florida Administrative Code, is an invalid exercise of delegated legislative authority in violation of Section 120.54, Florida Statutes. Accordingly, the Petitioner's Amended Complaint in case number 91-6699RX and his Initial Complaints in case numbers 92-0338REP and 92-0454RPP are DISMISSED.

DONE and ENTERED this 6th day of April, 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 6th day of April, 1992.

APPENDIX TO FINAL ORDER, CASE NO. 91-6699RX, 92-0338REP and 92-0454RPP.

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 Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1 See 29.

2-3 32.

4 33.

5 36.

1. Not supported by the weight of the evidence. See 3, 36 and 40.

2. Hereby accepted.

3. See 40.

4. 21. But see 22.

5. Not supported by the weight of the evidence.

6. Not supported by the weight of the evidence. The Petitioner has not been classified pursuant to the Emergency Rule or the Proposed Rule as a "convicted sex offender." He was classified at his own request by a circuit court judge pursuant to Section 917.14, Florida Statutes (1975), as a "mentally disordered sex offender". His classification as a mentally disordered sex offender did not require that he commit any sex offense or that he be charged or convicted of a sex offense.

7. Hereby accepted.

8. Not supported by the weight of the evidence. Mr. Mitchell testified that he was unaware of any other justification.

9. Hereby accepted. This is part of the justification for the Emergency Rule and the Proposed Rule.

10. Hereby accepted. The Petitioner, however, failed to prove that the lack of reports or statistical studies makes any difference.

11. Not supported by the weight of the evidence.

12. Not relevant.

18-19 Not relevant. Protecting the public from one inmate who may be a threat is sufficient reason to not allow that inmate to be classified as minimum custody.

20 Although generally correct, the evidence failed to prove that the adoption of the Emergency Rule or the Proposed Rule was intend to do anything other than protect the public from a potential risk.

21-22 Hereby accepted.

23-25 Although generally true, these facts failed to prove that the Emergency Rule or the Proposed Rule are invalid.

26 Not relevant.

27 23-24.

1. Under the Emergency Rule and the Proposed Rule it is true that all mentally disordered sex offenders that have not completed the mentally disordered sex offenders' program are treated the same for custody classification purposes.

2. Not relevant.

30-33 Not relevant. The burden of proof in this case was on the Petitioner.

Assuming that the following is even relevant, it was his burden to prove that mentally disordered sex offenders

do not have a propensity to escape and that there would not otherwise be any danger to the public of placing mentally disordered sex offenders on minimum custody.

34 See 23.

35-38 Not relevant or not supported by the weight of the evidence.

39 Hereby accepted.

40 See 22-24.

41-42 35.

1. See 29 and 33.

2. Hereby accepted. The Petitioner has no standing to challenge the policy, however.

3. Not supported by the weight of the evidence. See 33.

4. Not supported by the weight of the evidence. See 22-24.

5. Not relevant.

6. See 25.

7. Not relevant. See 33.

8. Not supported by the weight of the evidence.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1 1.

2 See 30 and 32.

3 3.

4 3 and 36.

5 1 and 4.

6 41-42.

7-8 Hereby accepted.

9 21.

10-11 26.

12 22.

13 23.

14 25.

15 20.

COPIES FURNISHED:

David Ansgar Nyberg #049898

Marion Correctional Institution Post Office Box 158-575

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

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250

Harry K. Singletary, Jr. Secretary Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

Louis A. Vargas General Counsel

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

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: 91-006699RX

Orders for Case No: 91-006699RX