Findings Of Fact The Petitioner, Pamela Williams, doing business as Secure Home Management, seeks a license to operate an adult congregate living facility (ACLF) in Palatka, Florida. The Respondent is an agency of the State of Florida charged with regulating the operation and practices of adult congregate living facilities and licensure thereof, together with enforcement of licensure standards contained in Chapter 400, Part II, Florida Statutes (1981). Preliminary discussions and informal meetings between representatives of the Department and the Petitioner, Pamela Williams, occurred at various times in January 1983, during which discussions the Petitioner was advised by the Department that she was required to apply for an ACLF license in order to legally operate her business. The Petitioner took the position that the facility she operates was a transient rental facility and thus exempt from the ACLF licensing provisions contained in Chapter 400, Part II, Florida Statutes, which exemption is provided for at Section 400.404(d) of that chapter. However, as a result of these informal discussions between the parties, the Petitioner ultimately elected to apply for licensure as an ACLF and did so on January 31, 1983. After further deliberations by the Department, requests for additional information and further informal negotiations and conferences, the Respondent Department ultimately elected to deny the application for licensure and so informed the Petitioner on May 4, 1983. In essence, the reasons for the Respondent's denial of the application for licensure was the belief by the agency and its representatives that the applicant Petitioner lacked the financial ability to provide continuing adequate care to residents under authority of Section 400.414(1)(b), Florida Statutes (1981). Subsequent to the denial of licensure, the Petitioner made a number of good-faith efforts to attempt to meet the Respondent's criteria for licensing in the area of furnishing proof of financial responsibility. For instance, on April 15, 1983, just before denial of licensure, a letter from Jack Allen, a financial backer of the Petitioner, was provided to the Department promising adequate financial support. That letter was admitted as Petitioner's Exhibit 1. However, the Department nonetheless elected to deny licensure, being unsatisfied that that constituted adequate establishment of financial security for the proposed licensed institution. Following the denial of the license, the Petitioner and the Respondent continued to attempt to resolve the problem regarding establishment of financial support for the institution. The Petitioner in that regard furnished the Respondent with additional documentary evidence from Jack Allen, dated May 12, 1983, and admitted as Petitioner's Exhibit 2, in which unlimited resources were promised in order to assure that the ACLF would embark on its operations on a secure financial footing. Sometime in August 1983, in part at the behest of the Respondent, the Petitioner retained an attorney, with the result that a document establishing financial worth and responsibility for operating the facility with adequate provision for care for its residents from a financial standpoint was provided the Department, with the result that after certain other informal negotiations the license was ultimately issued on October 14, 1983, authorizing Pamela W. Williams, d/b/a Secure Home Management, to operate the subject ACLF. Prior to this licensure, the Petitioner continued to operate the facility while making good-faith attempts to meet the requirements of the Department and during which time the dispute concerning whether she needed licensure or conversely whether she came under the above-described exemption was unresolved in part between the parties. It was established through Petitioner's testimony, as well as that of Lee Darden, a representative of the Division of Aging and Adult Services of HRS, that at all times pertinent hereto, before and after licensure, the residents of the Petitioner's facility received at least adequate care and that the failure of the Petitioner to be licensed did not in any way jeopardize the health, safety or well-being of any of the Petitioner's residents.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that no fine be assessed and levied upon Pamela W. Williams, d/b/a Secure Home Management. DONE and ENTERED this 10th day of February, 1984, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1984. COPIES FURNISHED: Albert W. Whitaker, Esquire Post Office Drawer D Palatka, Florida 32078-0019 James A. Sawyer, Jr., Esquire District III Legal Counsel Department of Health and Rehabilitative Services 1000 NE 16th Avenue, Building H Gainesville, Florida 32601 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Rule 33ER91-3, Florida Administrative Code, constitutes an invalid exercise of delegated authority? Whether a proposed amendment to Rule 33-6.0045(2), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, David Ansgar Nyberg, is an inmate in the custody of the Respondent, the Department of Corrections, at Marion Correctional Institution. The Petitioner is subject to the rules of the Respondent, including the rules at issue in this proceeding. 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. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. 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. The Emergency Rule and Rule 33-6.0045(2)(g), Florida Administrative Code. 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. Inmates are classified as minimum, medium, close or maximum custody, with minimum being the least restrictive and maximum being the most restrictive. The procedure to be followed in classifying each inmate is provided in Rule 33-6.0045(2), Florida Administrative Code. 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. 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. The Emergency Rule was only effective during part of 1991, prior to promulgating the Proposed Rule. Relevant Effect of the Emergency Rule and the Proposed Rule. Chapter 917, Florida Statutes (1975), which is titled "mentally disordered sex offenders" provided, in pertinent part, the following: 917.14 Certifying defendant for hearing.-- 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: 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; There is a probable cause to believe that the person is a mentally disordered sex offender; and The mental disorder has existed for at least the immediately preceding 4 months. 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. 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. 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). 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: A "mentally disordered sex offender" or "offender is a person who: Has been convicted of or pleaded guilty or no contest to a sex offense or attempted sex offense in a current prosecution; Suffers from a nonpsychotic mental or emotional disorder, yet is competent; and Is likely to commit further sex offenses if permitted to remain at liberty. Subsequent to 1977, the classification of an offender as a mentally disordered sex offender was repealed. 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. The Statutory Authority for the Emergency Rule and the Proposed Rule. The specific authority for the Emergency Rule and the Proposed Rule is Sections 20.315, 944.09 and 958.11, Florida Statutes. 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. 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. The Rationale for the Emergency Rule and the Proposed Rule. 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. 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. 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. 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. 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. 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). 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. The Impact of the Emergency Rule and the Proposed Rule on the Petitioner and the Petitioner's Challenge. 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. The Petitioner was not charged with any sex offense. 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). 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." 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 Scruggs, III. 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: Have a mental disorder; and 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. On April 1, 1976, the Petitioner was transferred from a correctional institution to the state mental hospital in Chattahoochee, Florida. In March, 1980, the Petitioner was resentenced and returned to a correctional institution. Judge Scruggs recommended that the Petitioner be placed in minimum custody. 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. 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. The Petitioner failed to prove that he has successfully completed the mentally disordered sex offender program. The Petitioner was involved in a sex offense committed against him when he was a child. 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. The Petitioner has alleged that the Emergency Rule and the Proposed Rule are invalid because they are arbitrary and capricious. The Petitioner has also alleged that the Emergency Rule is invalid because no emergency existed when it was promulgated.
