STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOEL BLANTON, JAMES RICHARDS, ) DEAN PETERSEN, EUGENE D. GOSS, ) RALPH PRITCHETT, JOSEPH CHARLES ) NORTON, FELTON LEROY HINGSON, ) PERRY FRANKS, ROBERT LEWIS, ) JAMES W. BEASLEY, C. L. NELSON ) and ROBERT D'AMATO, )

)

Petitioners, )

)

vs. ) CASE NO. 91-8331RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

)

RICHARD CHARLES GASTON, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0453RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to written notice a formal hearing was held in case number 91- 8331R before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on January 29, 1992.

APPEARANCES

For the Petitioners in Case Number 91-8331R:

David Ansgar Nyberg, Number 049898 Non-attorney Representative Marion Correctional Institution Post Office Box 158

Lowell, Florida 32663

James B. Lloyd, Number 137157 Non-attorney Representative Marion Correctional Institution Post Office Box 158

Lowell, Florida 32663

For the Petitioner in Case Number 92-0453RX:

Richard Charles Gaston, pro se, No. 113081 Hendry Correctional Institution

Route 2, Box 13A/Mail Box Number 706 Immokalee, Florida 33934-9747

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

Whether a proposed amendment to Rule 33-7.008(7), Florida Administrative Code, constitutes an invalid exercise of delegated authority?

PRELIMINARY STATEMENT

Case Number 91-8331R:

On December 27, 1991, the Petitioners in case number 91-8331R filed a pleading titled "Initial Complaint" challenging a proposed amendment to Rule 33- 7.008(7), Florida Administrative Code (hereinafter referred to as the "Challenged Rule"). On January 3, 1992, an Order of Assignment was entered assigning the case to the undersigned.

A Notice of Hearing was entered on January 6, 1992, setting the final hearing for January 29, 1992.

On January 7, 1992, the Respondent filed a Motion to Dismiss or, Alternatively, Motion for Summary Final Order. On January 21, 1992, an Order was entered denying the Respondent's Motions.

The formal hearing of case number 91-8331R was conducted by telephone. The undersigned, the court reporter, counsel for the Department of Corrections, and two witnesses, James E. Mitchell and Jerry E. Hewitt, were located in a hearing room of the Division of Administrative Hearings in Tallahassee, Florida. The Petitioners, their qualified representatives and one witness, Charles Keith Manning, 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 Petitioners presented the testimony of James

E. Mitchell, Jerry E. Hewitt and Charles Keith Manning. Petitioners offered no exhibits. The Respondent presented the testimony of Mr. Hewitt. The Respondent offered no exhibits.

The Petitioners in case number 91-8331R and the Respondent 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.

Case Number 92-0453RX:

On January 27, 1992, the Petitioner in case number 92- 0453RX filed a pleading titled "Initial Complaint" initiating essentially the same challenge to the Challenge Rule involved in case number 91-8331R. The case was assigned to the undersigned by Order of Assignment entered January 29, 1992.

A Notice of Hearing was entered February 3, 1992, setting the final hearing for February 27, 1992.

On January 31, 1992, the Respondent filed a Motion to Dismiss for Lack of Jurisdiction. In the Motion the Respondent argued that the Initial Complaint should be dismissed because it had not been filed within twenty-one days after notice of the Challenged Rule was published. On February 7, 1992, the Petitioner filed a Response to the Motion to Dismiss alleging that the Initial Complaint was filed within twenty-one days after notice of the Challenged Rule had not been placed on a bulletin board in Hendry Correctional Institution as specified in Rule 33- 12.001, Florida Administrative Code. Based upon this allegation, an Order Denying Motion to Dismiss for Lack of Jurisdiction was entered on February 18, 1992.

At the commencement of the final hearing of case number 92-0453RX, the undersigned suggested that the Petitioner and the Respondent agree to dispense with the hearing in that case and rely on the evidence presented in case number 91-8331R for a final determination. Petitioner Gaston and the Respondent agreed. Their agreement was based upon a stipulation that Petitioner Gaston has standing, that his petition was filed within the time requirements of Section 120.54, Florida Statutes, and that the evidence presented in case number 91- 8331R will be determinative of the issues in case number 92-0453RX. The parties also agreed that only one final order will be entered disposing of both cases.

Finally Petitioner Gaston was given until March 9, 1992, to file a proposed final order or final argument. Petitioner Gaston has filed a proposed final order 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 Petitioners are inmates in the custody of the Respondent, the Department of Corrections.

      
      

   2. The Petitioners are subject to the rules of the Respondent, including the Challenged Rule.

      
      

   3. The Respondent stipulated that the Petitioners have standing to challenge the Challenged Rule.

      
      

2. The Respondent.

   
   

   1. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, 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 Challenged Rule implements Section 944.706(3), Florida Statutes, which provides:

      
      

      (3) The department shall advance the release date of a nonparole contract releasee by up to 30 days and shall forward to the Department of Labor and Employment Security a release assistance stipend of up to $200 for the purpose of motivating the releasee to participate in prerelease orientation, secure permanent employment, and secure permanent residence. The Department of Labor and Employment Security shall distribute the release assistance stipend to the releasee in accordance with the provisions of law and of the release contract. Violation of the terms of the contract may constitute grounds for the forfeiture of the release assistance stipend and the termination of the contract.

      
      

3. Rule 33-7.008(7), Florida Administrative Code.

   
   

   1. Rule 33-7.008(7), Florida Administrative Code, currently provides:

      
      

      (7) Each facility is authorized to release a contract releasee up to 30 days prior to his sentence expiration date after the Bureau of Admission and Release has verified the expiration date as computed in accordance with instructions of the sentencing court and applicable statutes. The discharge certificate and any related documents must reflect the actual date of release. Parole releasees and inmates excluded in subsection (2) will not be eligible for a further reduction in their release date.

      
      

   2. The only modification to Rule 33-7.008(7), Florida Administrative Code, made by the Challenged Rule is to replace the terms "up to 30 days" with the terms "one day."

      
      

4. The Transition Assistance Program.

   
   

   1. The program established by the Legislature in Section 944.706(3), Florida Statutes, is known as the Transition Assistance Program (hereinafter referred to as "TAP").

   2. In creating the TAP, the Legislature has evidenced an intent to assist certain inmates in adjusting to their release back into the community.

      
      

   3. Indirectly, the TAP also creates an early release mechanism which has helped control inmate population. In the past the Respondent has relied on the TAP and Section 944.706(3), Florida Statutes, as a means of meeting required inmate population levels.

      
      

   4. The early release of inmates through TAP is conditioned upon their participation in the pre-release activities of the TAP, the payment of a $200.00 stipend to inmates to encourage their participation in the TAP and participate in post-release activities of the TAP. There is no requirement that inmates be released early contained in Section 944.706(3), Florida Statutes, unless an the inmate meets these conditions.

      
      

   5. Pre-release activities of the TAP includes analysis of inmates, a pre- release orientation program and paper work for referrals in the community for post-release activities. The pre-release orientation program lasts 40 hours.

      
      

   6. The $200.00 stipend is paid in part when an inmate is released, in part when the inmate reports to a community contact person and in part when the inmate returns to the community contact person.

      
      

   7. Post-release activities of the TAP included housing and employment referrals which were provided by the Florida Department of Labor and Employment Security and community-based organizations through a contract with the Respondent.

      
      

5. Purpose For the Challenged Rule.

1. In 1991, the Legislature did not appropriate any funds to the Respondent to carry on the TAP. No funds were authorized for the $200.00 stipend, to fund the contracts for post-release programs or to fund staff needed for the pre-release program.

   
   

2. The Respondent, since the 1991-1992 fiscal year has only been able to provide a two-hour pre-release orientation video to inmates prior to their release. The Respondent has not been able to provide inmates with a $200.00 stipend or any post- release TAP activities.

   
   

3. As a consequence of the Legislature's failure to fund the TAP, the Respondent has been unable to provide the means for inmates to meet the conditions for any significant early release required by Section 944.706(3), Florida Statutes.

   
   

4. The Control Release Authority was created by Section 947.146, Florida Statutes, in 1989. The Primary purpose of the Control Release Authority is to implement a system of uniform criteria for determining the number and categories of inmates who must be released in order to maintain required prison populations. The need to rely on the TAP to maintain required prison populations was eliminated by the creation of the Control Release Authority.

   
   

5. Based upon the inability to provide the TAP caused by loss of funding and in light of the creation the Control Release Authority, the Respondent decided to limit early release of inmates pursuant to Section 944.706(3), Florida Statutes, to one day. This decision was initially implemented by non- rule policy. This policy was declared invalid for failure to adopt the policy

   as a rule in accordance with Section 120.54, Florida Statutes, in a Final Order entered September 6, 1991, in Richard Charles Gaston v. Department of Corrections, DOAH Case Number 91- 3203R.

   
   

6. The Respondent subsequently promulgated the Challenged Rule.

   
   

7. Although it cost more to house an inmate than to release an inmate, the Respondent has no authority under Section 944.706(3), Florida Statutes, to simply release inmates early because it is cheaper. Early release pursuant to Section 944.706(3), Florida Statutes, is conditioned on participation in the TAP. If the Respondent is unable to provide the programs necessary for inmates to meet the conditions of Section 944.706(3), Florida Statutes, for early release, then the Respondent may not release inmates simply because it is cheaper than housing them.

   
   

8. In light of the program that the Respondent is able to provide inmates (a two-hour orientation video), a one day early release is reasonable.

   
   

9. Although the Respondent testified that any number of days could have been authorized by the Challenged Rule (up to a maximum of thirty), this testimony ignores the requirement of Section 944.706(3), Florida Statutes, that early release is conditioned on inmates receiving the programs contemplated. The testimony was merely an indication that the Respondent could select any number of days for early release from a practical- logistical basis. It does not appear, however, that such authority is granted the Respondent by Section 944.706(3), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

10. 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.

       
       

11. The Petitioners have standing to institute the instant action. They are incarcerated by the Respondent and subject to the rules of the Respondent, including the Challenged Rule. See Department of Corrections v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984).

    
    

    1. Nature of the Petitioners' Challenge.

       
       

12. The only appropriate challenge to a proposed amendment to an existing rule which may be brought before the Division of Administrative Hearings is a challenge pursuant to Section 120.54, Florida Statutes. The only relief which may be sought pursuant to Section 120.54, Florida Statutes, relevant to this proceeding is a determination of the invalidity of the proposed rule on the ground that it is an "invalid exercise of delegated legislative authority."

    
    

13. 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.

          
          

14. The person bringing a challenge to a proposed rule must state with particularity which portion(s) of the above definition the challenged rule violates and the specific facts supporting such an allegation.

    
    

15. In this case, the Petitioners in case number 91-8331R have alleged that the Challenged Rule constitutes an "invalid exercise of delegated legislative authority" in violation of Section 120.52(8)(c) and (e), Florida Statutes, because the Rule "enlarges, modifies, or contravenes the specific provisions of law implemented . . . " and is "arbitrary or capricious." Petitioner Gaston has alleged that the Challenged Rule is in violation of Section 120.52(8)(c), Florida Statutes.

    
    

    1. Burden of Proof.

       
       

16. 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).

    
    

    1. The Validity of the Challenged Rule.

    
    

17. The Petitioners have alleged that the Challenged Rule is invalid pursuant to Sections 120.52(8)(c) and (e), Florida Statutes.

    
    

18. Section 120.52(8)(c), Florida Statutes: The law implemented by the Challenged Rule is Section 944.706(3), Florida Statutes. The Petitioners have argued that the Challenged Rule, in limiting the number of days an inmate may be released early to one, enlarges, modifies, or contravenes Section 944.706(3), Florida Statutes.

    
    

19. Based upon the evidence presented in this proceeding, it is concluded that the Challenged Rule does not enlarge, modify, or contravene Section 944.706(3), Florida Statutes. The implementing law provides for up to thirty

    days early release. The Respondent's discretion to grant such early release, however, is conditioned upon inmates participating in the TAP. To the extent that an inmate participates in TAP and to the extent that an inmate otherwise should be given an early release, the Respondent is authorized to grant from zero to thirty days early release.

    
    

20. If an inmate does not participate in the TAP, that inmate is not entitled to any early release under Section 944.706(3), Florida Statutes. Whether the Respondent released inmates early pursuant to Section 944.706(3), Florida Statutes, only based upon the need to control inmate population does nothing to detract from this conclusion. At best, use of Section 944.706(3), Florida Statutes, to control inmate population might prove that the Respondent has misapplied the statute in the past. No such determination need be made in this proceeding, since the past application of Section 944.706(3), Florida Statutes, is not an issue before the undersigned.

    
    

21. In light of the requirements of Section 944.706(3), Florida Statutes, it is concluded that the Respondent may limit the number of days of early release based upon the lack of ability to provide all or part of the activities of TAP. The Respondent should not be required to implement TAP since the Legislature has not provided the appropriation necessary to do so. Consequently, since the Respondent is unable to provide TAP to any significant degree, it is not required by Section 944.706(3), Florida Statutes, to release inmates early to any significant extent.

    
    

22. Based upon the fact that the Respondent is unable to provide more than a two-hour video orientation, it cannot be said that the limitation of inmate early release to one day enlarges, modifies, or contravenes Section 944.706(3), Florida Statutes.

    
    

23. Section 120.52(8)(e), Florida Statutes: The Petitioners have argued that the Challenged Rule is arbitrary. 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).

    
    

24. In particular, the Petitioners have argued that the Challenged Rule is "arbitrary in that the action has been proposed without any basis in statistical, scientific, or expert opinion for the needed limitation." This argument is based upon the fact that employees of the Respondent who first considered the need for the Challenged 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.

    
    

25. The Petitioners have also argued that the Challenged Rule is arbitrary because "any fixed number of days would achieve the same purpose and no evidence

    was presented to show the preference for the selection of one day . . . ." This argument is rejected because the testimony concerning whether one day was better than some other number of days was answered only based upon the lack of funds.

    This testimony did not take into account the intent of the Legislature that the number of days of early release was to be conditioned on the extent to which the conditions for early release are met. Given the lack of funding for the TAP and the fact that only two hours of video are provided, one day of early release is reasonable.

    
    

26. Finally, the Petitioners have argued that the Challenged Rule is arbitrary because the Respondent "relied on factors that the Legislature did not intend to be the basis for a decision regarding T.A.P. The Respondent has relied on T.A.P. as a population control device . . ." At best, the evidence may have proved that the Respondent relied upon Section 944.706(3), Florida Statutes, in the past for some purpose other than that specifically intended by the Legislature. Such proof does not support a conclusion that the Challenged Rule, as written, is arbitrary. The Challenged Rule on its face, does not specifically deal with controlling inmate population.

    
    

27. The weight of the evidence presented in this proceeding failed to prove that the Challenged Rule was promulgated without thought or reason or that the Rule is not supported by facts and logic. The Respondent has limited the number of days of early release to a number which reflects the degree to which inmates may, through participation in the TAP, meet the conditions for early release established by the Legislature in Section 944.706(3), 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 the proposed

amendment to Rule 33-7.008(7), Florida Administrative Code, is an invalid exercise of delegated legislative authority in violation of Section 120.56, Florida Statutes and the Initial Complaint filed in case number 91-8331R and 92- 0453RX are DISMISSED.

DONE and ENTERED this 10th day of March, 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 10th day of March, 1992.

APPENDIX

Case Number 91-8331R and 92-0453RX2

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 Case Number 91-8331R

Proposed Finding Paragraph Number in Final Order of Fact Number of Acceptance or Reason for Rejection

1 3.

1. Hereby generally accepted.

2. Not supported by the weight of the evidence.

3. Hereby generally accepted.

5 See 20-21.

6-8 See 24.

1. Not supported by the weight of the evidence.

2. See 11.

3. Not supported by the weight of the evidence and not relevant.

4. See 6.

5. Hereby accepted.

14 23.

1. Not relevant to this proceeding.

2. Not supported by the weight of the evidence.

3. See 24.

4. See 22.

19 See 10-11.

1. Not supported by the weight of the evidence and not relevant.

2. Not relevant.

The Petitioner's Proposed Findings of Fact Case Number 92-0453RX

Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1-2, 4-5 Hereby accepted.

3 3.

1. Not relevant.

2. See 6.

8 See 10 and 12-15.

1. Hereby accepted.

2. See 11.

11-17 Not relevant or supported by the weight of the evidence.

1. See 20.

2. Not supported by the weight of the evidence. See 22.

3. Not supported by the weight of the evidence.

The Respondent's Proposed Findings of Fact

COPIES FURNISHED:

Richard Charles Gaston No. 113081

Hendry Correctional Institution Route 2, Box 13A/Mail Box No. 706 Immokalee, Florida 33934-9747

David Ansgar Nyberg No. 049898

Marion Correctional Institution Post Office Box 158

Lowell, Florida 32663

James B. Lloyd No. 137157

Marion Correctional Institution Post Office Box 158-607

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 General Counsel

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 COMMENDED 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: 91-008331RX

Orders for Case No: 91-008331RX