STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVEN RIVERA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0885RP

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case by telephone conference call on March 13, 1992, at Tallahassee, Florida, and Walton Correctional Institute, DeFuniak Springs, Florida.

APPEARANCES

For Petitioner: Steven Rivera, pro se #D033406/A143

Walton Correctional Institute Post Office Box 1386

DeFuniak Springs, Florida 32433

For Respondent: Claire D. Dryfuss, Esquire

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

ISSUE

Whether Proposed Rule 33.9007(9), Florida Administrative Code, is an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

By Petition For Administrative Determination dated February 6, 1992, Steven Rivera, Petitioner, seeks to have proposed Rule 33-9.007(9), Florida Administrative Code, declared an invalid exercise of delegated legislative authority. As grounds therefor, it is alleged the proposed rule is vague, fails to establish adequate and meaningful standards for agency decision, vests unbridled discretion in the agency, and is arbitrary and capricious.

At the commencement of the hearing, Respondent's motion to dismiss the petition for mootness was denied. Thereafter, Petitioner called four witnesses, including himself, Respondent called two witnesses and six exhibits were admitted into evidence. No transcript of the proceeding was ordered. The parties were given ten days to submit proposed findings. Respondent timely filed a proposed recommended order. By order dated March 26, 1992, Petitioner was given additional time until March 30, 1992 to file proposed findings.

Petitioner failed to submit proposed findings. Proposed findings 5, 6, 7 and 8

submitted by Respondent are accepted as the unrebutted testimony of Respondent's witness. Other proposed findings not included below are accepted, unless in conflict with those findings below.

Having considered all evidence presented, I make the following.

FINDINGS OF FACT

1. Steven Rivera, Petitioner, is currently serving a prison sentence at Walton Correctional Institution at DeFuniak Springs, Florida. He is on his fifth commitment to prison.

   
   

2. Respondent supervises the operation of correctional institutions in Florida and promulgates rules governing the operation of the prisons and various subjects relating to inmates of these prisons.

   
   

3. The proposed rule here under challenge provides:

   
   

   Any inmate who is serving his fourth commitment to prison or higher shall be excluded from work release if the inmate has previously been given the opportunity to participate in work release, except that an inmate may be given consideration if the inmate has demonstrated outstanding

   institutional adjustment and if extenuating circumstances exist.

   
   

4. Petitioner has been admitted to the work release program in a prior commitment and, with more than four prison commitments is in the class of prisoner covered by this rule. Accordingly, he has standing to challenge the rule.

   
   

5. The work release program is intended to motivate the individual offender toward self improvement, to ease the transition from prison into the community, place the inmate in employment to which he or she may return after release from the institution, permit the offender to contribute towards his own support and the support of his or her family, help determine the prisoner's readiness for parole, preserve family and community ties, and permit the offender to develop or maintain occupational skills. (Exhibit 6)

   
   

6. The Florida work release program has been in effect for many years allowing Department of Corrections officers the opportunity to gain experience in the effectiveness and efficacy of the program.

   
   

7. First commitment offenders are more likely to benefit from work release than are those who have three or more prior commitments.

   
   

8. Inmates who have been given one chance in the work release program and are subsequently recommitted to the prison institution have thereby demonstrated that they did not obtain the anticipated benefit of remaining crime free subsequent to being admitted to the work release program.

   
   

9. Following a murder committed by a prisoner who escaped from the work release program at another institution, a Task Force was set up to study the work release program and prepare recommendations affecting this program.

10. As a result of this Task Force's recommendations, wide ranging changes to the rules affecting the work release program were promulgated of which the rule here challenged is only one small subsection.

    
    

11. Furthermore, prior to the commission of the crime referred to above, there were approximately 4000 prisoners admitted to the work release program. Legislative changes since that time have limited the maximum number of prisoners admitted to the work release program to 2100.

    
    

12. Although Petitioner contends that there is no rule definition of commitment, this is a word that is well recognized in the prison community. As defined by one of Respondent's witnesses in these proceedings, each time a prisoner is committed following a release from a prior commitment whether in Florida or in another jurisdiction, this counts as an additional commitment. If the inmate commits an offense while in confinement, is taken to court and receives an additional sentence, this is not counted as an additional commitment. This method of counting commitments inures to the benefit of the prison inmates.

    
    

13. Petitioner also contends that the phrase "has demonstrated outstanding institutional adjustment and if extenuating circumstances exist" is arbitrary and vests unbridled discretion in the prison officials. However, admission to the work release program is a privilege which all prisoners admitted to such program must earn. They earn this privilege by adhering to the code of conduct established for prisoners, by participating in education, drug and alcohol abuse programs, and by other acts contributing to earning gain time. Certain classes of prisoners, e.g. those who have committed serious crimes, sex crimes, and crimes evincing a violent disposition must demonstrate more clearly than does the less violent criminal that he is eligible for work release.

    
    

14. No one act can show that one prisoner is better deserving for the limited number that can be admitted to the work release program than is another prisoner. Accordingly, it is necessary to consider innumerable factors to determine which are the prisoners most likely to benefit from work release based upon their history and their current conduct in the prison system. A finite list of factors to be considered in determining those most eligible for work release is impracticable because the list would be too numerous and could still omit factors deserving consideration.

    
    

15. The proposed rules, including the rule in issue here, provide that certain prisoners are not eligible for work release; but the rule provides two exceptions to this general disqualification, to wit: those who "demonstrate outstanding institutional adjustment and extenuating circumstances." By providing these exceptions, the rule removes the arbitrary exclusion of certain prisoners from work release regardless of their good conduct in prison and demonstration that they have totally reformed and are most unlikely ever to again commit a crime.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. As a prisoner in the category directly and specifically affected by proposed Rule 33-9.007(9), Florida Administrative Code, Petitioner has standing.

18. In these proceedings, the burden is on Petitioner to prove the rule invalid. Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    349 (Fla. 1st DCA 1977); Agrico Chemical Company v. DER, 365 So.2d 759 (Fla. 2nd DCA 1979).

    
    

19. Section 944.09, Florida Statutes, directs the Department of Corrections to adopt rules relating to, inter alia, rules of conduct to be observed by inmates, disciplinary procedures, grievance procedures, gain-time for good conduct, classification of personnel and duties assigned, and such other rules as may be necessary for the efficient operation and management of the correctional system.

    
    

20. Section 945.091(1), Florida Statutes, provides in pertinent part:

    
    

    The department is authorized to adopt regulations permitting the extension of the limits of the place of confinement of an inmate as to whom there is reasonable cause to believe that he will honor his trust by authorizing him, under prescribed conditions, and following investigation and approval by the secretary . . . to leave the confines of that place unaccom-

    panied by a custodial agent for a prescribed period of time to:

    * * *

    (b) Work at paid employment, . . . while continuing as an inmate of the institution or facility in which he is confined . . . .

    * * *

    (3) The department may adopt regulations as to the eligibility of inmates for the exten- sion of confinement, . . .

    
    

21. These statutory provisions clearly authorize a department to adopt rules pertaining to the work release program and eligibility therefor.

    
    

22. Here Petitioner challenges the proposed rule as arbitrary and capricious. 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 is despotic. Agrico Chemical Company v. DER, 365 So.2d 759, 763 (Fla. 1st DCA 1978).

    
    

23. The evidence submitted clearly shows the proposed rule to have been promulgated following rational thought and reason.

    
    

24. Nor is the rule vague as contended by Petitioner. A rule is considered vague and fails to establish adequate standards for agency decisions when the terms of the rule are so vague that persons of common intelligence must necessarily guess at the rule's meaning and differ as to the rule's application. State v. Cumming, 365 So.2d 153 (Fla. 1978). In City of St. Petersburg v. Pinellas County Police Benevolent Association, 414 So.2d 293 (Fla. 2nd DCA 1982), the test for vagueness applied by the court was:

    
    

    1. Whether persons of common intelligence are required to guess at the rule's meaning; and (2) whether persons affected by the rule

       were properly apprised of the rule's effect on them.

       
       

25. A rule vests unbridled discretion in an agency when it fails to establish adequate standards and reserves to the agency the arbitrary power to determine private rights. Barrow v. Holland, 125 So.2d 749 (Fla. 1960).

    
    

26. The meaning of the term commitment is not vague nor does it fail to give adequate standards or vest unbridled discretion in the department. Circuit courts transmit commitment forms to the Respondent when an inmate is being committed to the Respondent. These forms are placed in the inmate's file and are counted to determine the number of commitments. The only discretion exercised by Respondent is not to count all of the commitment forms which discretion inures to the benefit of Petitioner.

    
    

27. This rule is uniformly applied to all inmates with four or more commitments and does not absolutely bar such an inmate from participating in the work release program; it only requires him to demonstrate that he has earned the privilege.

    
    

28. From the foregoing, it is concluded that Proposed Rule 33-9.007(9), Florida Administrative Code, is a valid exercise of delegated legislative authority and is neither vague, arbitrary

nor capricious.

ORDER

Accordingly, it is ORDERED:

The challenge to proposed rule 33-9.007(9), Florida Administrative Code, filed by Steven Rivera be dismissed.

DONE and ORDERED this 7th day of April, 1992, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1992.

COPIES FURNISHED:

Steven Rivera #D033406/A143

Walton Correctional Institution Post Office Box 1386

DeFuniak Springs, FL 32433

Louis A. Vargas, Esquire Department of Corrections 2601 Blairstone Road

Tallahassee, FL 32399-2500

Claire Dryfuss, Esquire Assistant Attorney General The Capitol, Suite 1603 Tallahassee, FL 32399-1050

Donna Malphurs

Department of Corrections 2601 Blairstone Road

Tallahassee, FL 32399-2500

Harry K. Singletary, Jr. Secretary

Department of Corrections 2601 Blairstone Road

Tallahassee, FL 32399-2500

Carroll Webb Executive Director

Administrative Procedures Committee Room 120, Holland Building Tallahassee, FL 32399-1300

Liz Cloud Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, FL 32399-1300

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: 92-000885RP

Orders for Case No: 92-000885RP