The Issue Whether Petitioner was discriminated against by the Department of Corrections based on race, religion, disability, age, or in retaliation for participation in an activity protected under Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Emory Mosley, is an African-American male (Petitioner). In 1989, Petitioner was hired as a correctional officer by Respondent, the Department of Corrections (Department). Initially, he was assigned to the main unit at Madison Correctional Institution in Madison, Florida. By all accounts, during his first nine years with the Department, Petitioner was well liked by the institution's administration and his fellow officers. He was thought of as a hardworking professional officer and as one of the best officers at Madison Correctional Institution. New officers were routinely sent to Petitioner for him to train. In general and during Petitioner's employment, officers are assigned to different shifts and work assignments at Madison Correctional Institution so that officers can become familiar with all aspects of the Madison Correctional system. However, Petitioner was allowed to remain at the same post and shift for his first nine years. Over nine years, such permanence in Petitioner's assignment caused some resentment among other staff because of the perceived favoritism exhibited by the administration toward Petitioner. At some point in his ninth year with the Department, Petitioner began to perceive problems with other staff members. He concluded that certain rules were not being followed and began to believe that co-workers were in some manner conspiring against him, abusing inmates, and/or committing crimes related to their duties at the institution. His relationships with co-workers became strained. Staff and inmates began to complain about Petitioner's behavior toward them. During this time, Petitioner also complained to the warden about rule violations by staff. However, the details of these complaints were not revealed at the hearing. Petitioner's complaints did appear to be in the nature of "whistle-blowing." The evidence did not demonstrate that any of Petitioner's complaints involved any activity protected under Chapter 760, Florida Statutes. In July 1999, Colonel David McCallum transferred Petitioner to the Madison Correctional Institution work camp. The work camp was located a few hundred yards away from the main unit. The duties of a correctional officer at the work camp are primarily the same as those at the main unit with the difference that there are significantly fewer inmates at the work camp. As a result, many officers feel that the work camp is somewhat more relaxed and an "easier" assignment than an assignment at the main unit. To some officers, it is a desirable assignment. To other officers, it is not a desirable assignment. Opportunities for promotion are not diminished at the work camp; pay and benefits remain the same. The evidence did not show that transfer to the work camp was an adverse employment action on the part of the Department. Colonel McCallum, who thinks highly of Petitioner, transferred Petitioner to the work camp because he believed that Petitioner needed a change of scenery because of the problems he was having with staff and inmates at the main unit. He believed that he was doing Petitioner a favor by transferring him because of the more relaxed atmosphere at the work camp. The transfer was also made due to complaints from staff that Petitioner was receiving preferential treatment in that he was allowed to maintain the same post and shift for such a long period of time. Colonel McCallum was not aware of any complaints by Petitioner to the warden of alleged rule violations at the time that Petitioner was transferred. The evidence did not show that Petitioner was transferred in retaliation for any activity protected under Chapter 760, Florida Statutes. Petitioner's supervisor at the work camp was Lieutenant Patricia Herring, an African-American female. Herring emphatically denied at the hearing that the work camp was in any manner run as a type of concentration camp as opined by Petitioner and did not relate any race relation problems at the camp. The camp was run in a less strict manner than the main unit, especially in relation to the procedure used during the counting of inmates. These more relaxed methods greatly disturbed Petitioner, and he constantly agitated the work environment about such relaxed methods that he perceived as "rule violations." Herring testified that Petitioner was insubordinate and disrespectful to her during his time at the work camp. She believed that his disrespect came from his unhappiness with having a female supervisor. Petitioner received a written reprimand as a result of his insubordination and disrespect toward Herring. Unquestionably, Petitioner and Herring had a serious conflict between their personalities. There was no evidence that any conflict was based on discrimination or retaliation. Ms. Herring also testified that Petitioner received the same treatment as all other officers, vis-à-vis, shift and post assignments. There was no substantive evidence that Petitioner was treated differently in the assignments he was given at the work camp. There was no evidence that Petitioner sought accommodation for his diabetes or high blood pressure. Petitioner retired from the Department, effective December 1, 1999. He admitted at hearing that his retirement date had nothing to do with any actions allegedly taken against him by the Department; rather, he planned to retire on December 1, 1999, well before any problems with the Department began because that date ensured that he would receive retirement benefits based on ten years of service. There was no substantive evidence presented at the hearing that Petitioner was discriminated or retaliated against. Therefore, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 24th day of June, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Emory L. Mosley Post Office Box 8 Monticello, Florida 32345 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003), and Florida Administrative Code Rule 11B-27.0011(4)(a), and, if so, what discipline should be imposed.
Findings Of Fact Anderson is a certified correctional officer, certified by Petitioner. Her certificate number is 190482. At the time of the incident at issue, Anderson was working for the Wackenhut Corrections Corporation as a correctional officer at South Bay Correctional Facility. On May 27, 2003, Patricia Johns (Johns) was in the Wal-Mart parking lot in Clewiston, Florida. Johns was taking groceries she had purchased from a shopping cart and placing them in her vehicle. She placed her sweater and her purse in a shopping cart while she was loading the groceries. Johns retrieved her sweater from the cart, but left her purse in the cart. She pushed the cart with the purse in it between her vehicle and another vehicle, got into her vehicle, and left the parking lot. A few seconds later Anderson pulled into Johns' parking space. Anderson's vehicle bumped the shopping cart, pushing it forward a couple of feet. She got out of her vehicle, went over to the cart, and removed the purse. Anderson, while wearing her correctional officer uniform, placed the purse in the backseat of her vehicle, took her son out of the vehicle, and went into Wal-Mart. She did not take the purse into Wal-Mart and attempt to locate the owner. The purse was a Tommy Hilfiger brand valued at $50. Inside the purse was a wallet with $18 in cash, a credit card, and blank checks. A cellular telephone valued at $350 was also in the purse. Anderson picked up some prescriptions at Wal-Mart, returned to her vehicle, and eventually returned home. She knew that the purse did not belong to her, but claimed that she was planning to turn the purse in at the police department the next day. Her claim that she was going to turn the purse into the police is not credible based on later actions. Sometime after she had returned home, she remembered she had put the purse in the back of her vehicle and asked her fiancé to get the purse. When he went to retrieve the purse, only the wallet remained minus the cash. During the time that Anderson left Wal-Mart and the time that her fiancé discovered that the purse, cash, and cellular telephone were missing, both Anderson and her fiancé had driven the vehicle while carrying other passengers. Anderson did not remove the purse, cash, and cellular telephone from the vehicle. She believes that one of the other passengers who had been riding in her vehicle on May 27, 2003, took the purse, cash, and cellular telephone. The next day, Anderson placed the wallet in a zip-lock plastic bag and dropped it in a drop box at the post office. She did not notify the owner of the purse that she had taken the purse from the Wal-Mart parking lot, and did not notify the police until later that she had taken the purse. Johns reported to the police that her purse had been stolen. An investigation ensued, and it was learned based on a video tape of the Wal-Mart parking lot on May 27, 2003, that Anderson had taken the purse. A police officer attempted to contact Anderson by telephone concerning the incident. On June 9, 2003, Anderson gave a taped interview to police officers, in which she admitted taking the purse out of the shopping cart and placing it in the backseat of her car. She was arrested for grand theft and released on the same day after posting a bond. An information for grand theft, a third degree felony, was entered against Anderson on August 13, 2003. She agreed to make restitution in the amount of $419, and a Notice of Nolle Prosequi was entered on December 5, 2003. As a result of the incident at issue, Anderson was dismissed from her position as a correctional officer at South Bay Correctional Facility. She is sincerely sorry for her actions and has made restitution for the property taken.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Lenora R. Anderson is not guilty of a violation of Subsection 943.1395(6), Florida Statutes (2003); finding that she failed to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2003), and defined by Florida Administrative Code Rule 11B-27.0011; and imposing the following penalties as set forth in Subsection 943.1395(7), Florida Statutes (2003): issuance of a written reprimand and placement of Respondent on probation for two years under conditions as specified by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 7th day of December, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2004.
The Issue Whether Respondent, Casselberry ALF, Inc., d/b/a Eastbrooke Gardens, violated Section 400.28(1)(a), Florida Statutes, and Rule 58A-5.0182, Florida Administrative Code, as cited in the four AHCA Administrative Complaints, based on four consecutive AHCA surveys of Respondent's assisted living facility (ALF), alleging failure to provide care and services appropriate to the needs of its residents. Whether the facts alleged constitute Class I or Class II deficiencies. Whether, if found guilty, a civil penalty in any amount or the imposition of a moratorium is warranted pursuant to the cited statutes.
Findings Of Fact Petitioner is the State of Florida, Agency for Health Care Administration. Petitioner is responsible for licensing and regulating adult living facilities pursuant to Section 400.401 et seq., Florida Statutes, and Chapter 58A-5, Florida Administrative Code. Respondent is Casselberry ALF, Inc., d/b/a Eastbrooke Gardens, an assisted living facility located at 201 North Sunset Drive, Casselberry, Florida, which is licensed and regulated pursuant to Section 400.401 et seq., Florida Statutes, and Chapter 58A-5, Florida Administrative Code. On June 1, 2001, Petitioner's employee, Vilma Pellot, whose duties include surveying ALFs for compliance with licensure statutes and rules, conducted a survey of Respondent's facility based on an abuse complaint received by Petitioner. That same day, Pellot discussed her findings with the facility administrator, and later prepared AHCA form 3020. In her report, Pellot found that the facility was not in compliance with Rule 58A-5.0182, Florida Administrative Code, which states, in pertinent part: Resident Care Standards. An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. Pellot determined that the standard was not met because "the facility failed to take proactive measures to prevent patient to patient abuse and to minimize potential for falls resulting in injuries." The deficiency was classified as a Class II deficiency and a prospective $2,500 fine was imposed. At hearing, Petitioner did not produce the records that Pellot reviewed, nor did it present the testimony of any of the people with whom Pellot spoke. Other than Pellot's direct observations of the residents' bruises and dressings, the only other direct evidence offered by Petitioner regarding the June 1, 2001 survey was the AHCA form 3020, which Petitioner acknowledged was not being entered for proof of the facts stated therein. Pellot did not print or send the AHCA form 3020 to the facility and she does not know if the facility received the form 3020 when she made a subsequent visit to the facility. On July 16, 2001, Pellot conducted a follow-up visit to Petitioner's facility. She again observed residents with bruises or dressings and reviewed their records. She also observed two residents sleeping in the wrong beds. In addition, Pellot determined that based on an interview and incident reports review, the facility failed to submit to Petitioner a preliminary report of all adverse incidents within one business day after occurrence. Pellot discussed her findings with the new administrator and concluded that there was still patient wandering, resulting in injury, and patient-to-patient abuse. Following her visit, Pellot drafted another AHCA form 3020, finding a continued violation of Rule 58A-5.0182, Florida Administrative Code. The continued deficiencies of June 1, 2001, were upgraded to Class I and a prospective fine of $5,000 imposed. In addition, a Class III deficiency was found for the failure to report adverse incidents within one day. At hearing Petitioner did not introduce the records that Pellot reviewed on her second visit, nor did it present the testimony of any of the people with whom Pellot spoke. Other than Pellot's direct observations of the residents' bruises and dressings and her observation that two residents were in the wrong beds, the only other direct evidence offered by Petitioner regarding the July 17, 2001 survey was the AHCA form 3020, which contained hearsay statements. In regard to the Class III deficiency for failure to report adverse incidents within one day, there was no testimony or records presented by Petitioner to support the allegation set forth in the AHCA form 3020, dated July 16, 2001. Petitioner acknowledged, in its Order of Immediate Moratorium, that an incident report had been submitted regarding a kicking incident involving Resident number 6. Other incidents noted in the AHCA form 3020 did not require incident reports because they did not meet the definition of "major incident" as defined by rule. Following the surveys on June 1, 2001, and July 17, 2001, Petitioner made an administrative determination that "conditions in the facility present an immediate or direct threat to the health, safety or welfare of the residents . . ." and issued an Order of Immediate Moratorium against Respondent's ALF. Respondent was not permitted to admit any new residents until the moratorium was lifted. On August 8, 2001, another follow-up survey to the ALF was made, and Pellot observed bruises on residents and one resident wandering into another resident's room. Another AHCA form 3020 was prepared finding a continued violation of the rule. The continued deficiencies of June 16, 2001, were classified as Class I and a prospective fine of $5,000 imposed. In addition, a Class III extended congregate care (ECC) deficiency was found for the alleged violation of not admitting a resident who required ECC services, total help with activities of daily living (ADL), or discharging her. At hearing, Petitioner did not produce the records reviewed by Pellot, nor did it present any of the people with whom she allegedly spoke. Other than Pellot's direct observations of the residents' bruises and dressings and her observation of a resident wandering into another resident's room, the only other direct evidence offered by Petitioner regarding the August 8, 2001 survey was the AHCA form 3020, which contained hearsay statements. On August 17, 2001, another follow-up survey of the ALF was conducted, and bruises on residents were observed and a band-aid was seen on one resident. Another AHCA form 3020 was prepared, finding a continued violation of the rules. The continued deficiencies were classified as Class I and a prospective fine of $5,000 imposed. In addition, the Class III ECC deficiency previously determined in the August 8, 2001 survey was found to have been corrected. At hearing, Petitioner did not produce the records reviewed by Pellot, nor did it present any of the people with whom she spoke. Other than Pellot's direct observations of the residents' bruises and dressings, the only other direct evidence offered by Petitioner regarding the August 17, 2001 survey was the AHCA form 3020, which contained hearsay statements. Pellot returned to the facility on September 27, 2001, for a monitoring visit and on September 28, 2001, for a follow- up survey. At that time she concluded that the alleged deficiencies had been corrected and recommended that the moratorium be lifted. Petitioner recognizes that ALF residents do fall. The rule does not require that a facility be "fall free." There is no rule or regulation concerning falls, and there are no guidelines set forth in AHCA complaint investigation guidelines. Lois Bosworth, a certified gerontological nurse, is Director of Operations for Homestead Health Management Group which operates Respondent's ALF. Homestead Health Management Group operates nine ALFs in Florida, all of which have ECC licenses. ECC stands for Extended Congregate Care which is a higher level of care than a standard ALF license. All of Respondent's ALF residents are memory impaired to some extent. Most are in their 60s or older, some have early Alzheimer's, others have dementia for other reasons. Because they suffer from dementia, the residents' physical abilities are declining. Some are not ambulatory and use wheelchairs, some are able to use walkers to some degree, most can still feed themselves. In the evening, ALF residents with dementia have to be cued over and over to perform the activities of daily living (ADLs) more often than in the daytime because while they're up during the day, they become very tired and their processes decline. Some residents have the same levels all day, but over the course of weeks, to months, to years, they will decline, needing more hands-on personal services as their disease progresses. ECC has established criteria and retention criteria which Respondent is required to follow. With the dementia clients, it is gauged on their ability to transfer with minimal assistance. They may need help becoming steady because sitting for any length of time makes them unsteady or off balance when they first stand up. Retention criteria is also based on how much cuing a resident needs in feeding themselves. With Alzheimer's patients, it is typical that feeding is one of the last of the physical needs that they can do themselves. When residents are no longer able to ambulate or feed themselves, they are more prone to physical ailments that require nursing home care. If there is a question concerning appropriate placement, Respondent will have the Department of Children and Family Services (DCF) CARES team become involved. The CARES team consists of nurses that make the official determination of the appropriate level of care required for a resident. Many times it is necessary to involve the CARES team because the family is reluctant to have their loved one transferred from the ALF to a nursing home. In a facility such as Respondent's where there are many residents with dementia, it is not unusual for the residents to get into confrontations with one another. Often they will shout at each other before they touch each other. Alzheimer residents will sit next to each other touching each other, shoulder to shoulder, knee to knee. They'll even hold hands walking down the hallway. There are other times they need to have the comfort of someone touching them. But they have periods of time when they don't want people touching them at all and for no apparent reason. Of the residents identified in the June 6, 2001 survey, Resident number 1 was ambulatory. She would wander at night time up until midnight before she would settle down and go to sleep. This is typical Alzheimer's type activity. She was a lady who had very large bags under her eyes constituting soft tissue which can continue to bleed from a bruising into both eyes. Such an injury is typical of people with glasses, or people who get hit over the bridge of the nose, making it quite common to have two black eyes with one injury. A small bruise over the eye one day may be extremely massive the next because there will be continued leaking of blood under the skin and the tissues that cause the bruise. This resident was allegedly struck by another resident who was not known to be aggressive, but did not recognize people all the time. One of the defenses that Alzheimer's people have, if they can't process the thought and recognize someone, is to make someone the bad person because they don't remember what happened. Often they will respond verbally ordering the person to go away, even though the person may be a roommate. In the earlier stages of Alzheimer's, a person may recognize that he or she is forgetting things and have a tendency on some occasions to be more resistant, not necessarily aggressive. The resident who allegedly struck Resident number 1 was not known to be aggressive to other residents, even after this alleged incident. The alleged incident could not have been foreseen. Resident number 2 in the June 1, 2001 survey was receiving therapy for her falls. There was a recommendation that a different wheelchair with a seat which slightly tilts back be tried. After the June 1, 2001 survey, this resident was placed in a nursing home which could use restraints in a wheelchair. Resident number 5 in the June 1, 2001 survey would sit on the side of the bed to put her slippers on. She would pitch forward because she was short and the bed was too tall for her to sit on. Her mattress was placed on the floor to alleviate the problem which was resolved. Resident number 5 had a tendency to bruise easily. It was determined that she had a bleeding disorder, so that even a slight bump would cause her skin to bruise. She continued to have skin tears and bruising following June 1, 2001, which required her to go to the emergency room. When she returned her skin tear had not healed and she had very massive bruising from use of an IV in the emergency room. The patient eventually went back to the hospital and did not return to the facility. Resident number 4 in the June 1, 2001 survey was the resident who allegedly had an altercation with Resident number 1. She had no other problems such as this. Resident number 4 apparently alleged that Resident number 1 came into her room and grabbed her arm. Then she hit that resident for coming into her room, to defend herself. This is the only event that occurred with this resident. A person with dementia is usually not credible. It is not uncommon for people with dementia to blame something that happened to them on someone else. Due to memory impairment, they do not want people to think that something is wrong with them, so they blame someone else for something that happened to them. The material available, publications and educational offerings for Alzheimer's encourage allowances for wandering for Alzheimer's clients, because it is part of the disease process and part of their need. They are not able to sit quietly; in fact, the literature states that it's important that they be permitted to wander. At Respondent's ALF wandering is allowed throughout the facility, which is open. Respondent is barrier- free to permit the wandering, allowing a resident to pace up and down the hallways or common areas. The option to participate in activities is always the right of the resident. Alzheimer's clients can't always make that decision, and so they're encouraged to participate in activities to keep them distracted to a degree. They cannot be forced to participate if they choose to continue to walk up and down the halls. Respondent tries various techniques to deter wandering into the wrong room, from posting photographs on residents' doors to decorating rooms with personal items. Respondent tries hard to keep the residents in common areas when they wander and tries to keep doors to residents' rooms closed. But wandering is still a problem with Alzheimer's residents. There are no publications on how to prevent falls. Falls can be minimized in number and by the severity of injuries. The facility needs to be able to provide what the resident needs; if that means they need to go barefoot, then they should be allowed to go barefoot without neglect being alleged. While Respondent cannot prevent falls, it tries to minimize them by providing appropriate care and services to meet the residents' needs within the standards set by the state. Respondent has a procedure in place to minimize falls. Fall assessments were done by the therapy department. When someone had a first fall, therapy would do a screening and assessment to see if they had a need for therapy services to increase their functionality of ambulating. The administrative staff would also review the circumstances of the fall to see if it was preventable or non-preventable. The resident would be evaluated to determine if there was a medical condition that had arisen that was contributing to the fall. There would be a general assessment of the different environmental issues as well as clinical issues. The resident would be watched for any possible decline. Resident number 3 in the June 1, 2001 survey is a tall gentleman who walks around with a stuffed dog. He is friendly and takes direction easily. He is not aggressive, and he does not have a tendency to walk into other peoples' rooms. Other than the two residents seen napping in other residents' beds, the incidents cited in the July 16, 2001 survey, which led to the issuance of a repeat citation and a moratorium, consisted of the actions of one resident identified in that survey as Resident number 6. Resident number 6 was a 48-year-old lady who was brought to Respondent by DCF through an emergency placement under a court order to place her in an ALF for supervision of her care needs. She was a younger resident than normal for the facility because she had a diagnosis of Huntington's Chorea, which is a type of dementia which does not progress as quickly as Alzheimer's but strikes adults earlier in life. Respondent has an agreement with DCF which provides for emergency placements for persons who do not need to go into nursing homes, for those with memory impairment, including after-hour placement, and weekend placement. Respondent does not require that DCF bring with them a medical assessment. Regulations allow Respondent to have one completed within 30 days following the emergency placement. Resident number 6 was at a table and another resident reached for her purse. Resident number 6 picked up a cup of coffee that was sitting on the table and threw the coffee on the other resident's lap. The other resident involved was not injured because the coffee served was not hot coffee. Resident number 6 came to the facility in early June 2001. The coffee incident occurred on June 30th and was the first indication that there might be a problem. Respondent did not interpret the action of Resident number 6 to mean that Resident number 6 was going to hurt anyone. Resident number 6 did not come with a history of hurting anyone, and there was no documentation that she had tried to hurt anyone in the past. She calmed down after the incident and didn't seem to be a problem. Resident number 6 was quite settled in and was doing well. This was a DCF placement to see how she did and whether or not she would be able to return home or go to a different living arrangement. On July 11, 2001, the survey indicated that Resident number 6 had an altercation with Resident number 1 over a cigarette lighter and pushed him down and kicked him, requiring him to be admitted to the hospital with a fractured hip. On July 14, 2001, Resident number 6 allegedly grabbed the arm of Resident number 3 who was in her room and created a skin tear to Resident number 3 as she was pulling her down the hall to the nursing station. During the July 16, 2001 survey, Respondent was directed to remove Resident number 6 immediately from the facility. DCF declined to help. Respondent placed Resident number 6 on one-to-one supervision until the next day when DCF refused to remove her. Respondent could not Baker Act Resident number 6 to a mental facility because she did not meet the criteria. Respondent was finally able to get Resident number 6 to agree to a voluntary psychiatric placement. Resident number 4, a 98-year-old female, identified in the August 8, 2001 survey, apparently had been found on the floor of her room in April with no injuries. She appeared to fall because she was trying to dress herself and the blanket got wrapped up in her legs. In June, she fell into the soda machine with no injuries. And then on July 18th and 20th she fell in the evening. Evening is when some Alzheimer's residents have what is called "sundown syndrome," simply meaning that as the sun sets, they have become so tired they've exhausted all their physical resources and will have a decline. Resident number 4 was receiving physical therapy to keep her ambulating at the highest level possible. She reached her highest potential in therapy because she couldn't remember safety factors that she was taught. The purpose of physical therapy was to help Resident number 4 in her ability to ambulate and minimize her falls. The only way to actually prevent her from falling was to restrain her, which is not permitted at an ALF. On August 1st, Resident number 4 aparently stood up from a bench that was in the hallway and literally ran down the hallway, running to the point that a therapist and the nursing assistant could not catch her. Resident number 4 only stopped because she fell forward and hit her nose on the floor. She was in a dementia state, and did not reach her hands out to catch herself. There was no way anyone could have prevented such an accident, especially since Resident number 4 did not take off running all the time and she was under direct supervision when this happened. Resident number 3 in the August 8, 2001 survey, apparently fell in the TV room and the corner of her chin hit the table. While the injury did cause a massive bruise on her chest, there was no way of knowing the fall would occur since the resident did not have a history of falls. Resident number 6 identified in the August 8, 2001 survey, was non-verbal. During the survey she followed the staff and held hands with a staffer. She is a person who was always reaching for someone. She had a habit of patting another resident on the head, but she was not aggressive. She merely liked to touch, kiss, hold hands, or hug people. Respondent tried to keep her hands busy by giving her something to hold but that did not stop her need to touch people. During the surveyor's tour of the facility on August 8, 2001, a resident mistakenly walked up to a room and asked if it was hers. She was redirected before she entered the room. The resident who claimed to be missing glasses and spools of thread has a mild dementia. She was wearing glasses and the facility supplied her with spools of thread when she ran out. Resident number 2, in the August 17, 2001 survey, was totally ambulatory and did not have a history of falling. She was steady but very confused. She was walking to dinner in the dining room in an open area, no barriers, and apparently when she made a step, she stepped on the shoe of her other foot and fell down, striking her head on the piano. She had a tendency when she sat down to constantly shake her leg or cross her legs back and forth. She was in continuous motion, which is not unusual with Alzheimer's type of dementia. Apparently when she first came back from the hospital, she was able to stand up, help herself to bed with some assistance. Through the night she was having more difficulty and returned to the emergency room where they discovered that she in fact had a fractured hip from the fall. Resident number 1, in the August 17, 2001 survey, was approximately 97 years old, very frail and very thin. He had a recent diagnosis of cancer that was a progressive non-Hodgkins type lymphoma. He had good days and he had bad days, as far as his physical health, which is typical of the disease process. He also had confusion from memory impairment disorder that may or may not have been Alzheimer's. There were days when Resident number 1 could walk using a cane, on other days he could walk with a walker, and there were days when he was so tired he used a wheelchair. With his demented state he wasn't always sure which appliance to use for the day and had to be reminded. Resident number 1 was a smoker, so he would go out on the patio frequently. Sometimes he would reach for things and, being frail, would fall. He was in end stage with his cancerous process and one of his goals was to stay out of a nursing home. Resident number 1 did have a series of falls which created skin tears because his skin was very thin, but nothing that was more of a serious nature than that, and he was adamant that he stay at the ALF. He was able to be maintained at Respondent's ALF and did not have any fractures while he was there. Toward the end of his life, he determined that he did not want to be involved with the hospice group that came to visit. He did eventually go to a different level of care. Resident number 3, identified in the August 17, 2001 survey, fell in the shower when she was being assisted in May of 2001. She apparently fell and hit the back of her head on a shower stall, but she was receiving assistance at the time. This was an unusual occurrence, Resident number 3 was not a resident who fell frequently or had a great history of falls. On August 12 the survey notes that she had redness under both her eyes and a cut or scratch on her nose. This was another resident who had very large bags under her eyes and rubbed her eyes frequently. There was no documentation that this resident had received an injury or a fall that would create this redness around her eyes or the yellowish, purplish hematomas. There was no indication that this resident had had a fall and she was not prone to falls. Resident number 6, identified in the August 17, 2001 survey, was a resident who was required to wear shoes because it is considered inappropriate for our elders to walk around barefoot. She would take her shoes off frequently. When she did wear them, she had a difficult time picking her feet up high enough to walk without someone with her. Resident number 6 apparently tripped with no apparent injuries, but later that day her right hand showed bruising and swelling. There was no indication as to the cause of the swelling and an X-ray indicated no fracture. Resident number 6 apparently tripped again while walking, tried to catch herself and held onto a chair; she had a skin tear on her shin. Resident number 6 although ambulatory, would often catch herself from falling. Resident number 4, identified in the August 17, 2001 survey, scratched his arm because he has dry skin. It began bleeding and an aide administered a bandage. There was no need for documentation. The facts alleged in the four surveys at issue do not indicate any conditions or occurrences relating to the operation and maintenance of this facility, or the personal care of the residents which directly threatened the physical or emotional health, safety or security of the facility residents. At no time during any of her surveys that are at issue in this proceeding did Pellot find Respondent's ALF to be short-staffed. The facts alleged in the four surveys at issue do not indicate any conditions or occurrences relating to the operation and maintenance of the facility or the personal care of the residents which would have been an imminent danger to the residents or guests of the facility, or a substantial probability that death or serious physical or emotional harm could result therefrom. Respondent was providing appropriate care for the needs of the residents that were identified in the statements of deficiencies at issue in this proceeding. None of the patients who were involved in these incidents cited in the four surveys had the mental capacity to form a willful intent to harm someone. Nor could the patient's actions be interpreted, under the facts, to be anything more than defensive reactions or touching incidents of persons with mental impairments. The relevant facts showed that Respondent took appropriate steps to address wandering problems and protect residents in its facility. The events surrounding Resident number 6, in the July 16 survey were an anomaly and could not have been foreseen by the staff at the facility. Respondent had a right to rely on the assertion by DCF that Resident number 6 was appropriate for placement in an ALF. The incident with the coffee was not significant enough to precipitate the resident's removal from the facility. When it became apparent that the resident was aggressive at times, Respondent took appropriate steps to have her placed elsewhere. In addition, this isolated incident was not similar to those for which Respondent was cited in the first survey of June 1, 2001. This was a problem created by a particular patient and not incidents of falls or wandering. As such, it should not have triggered a repeat offense nor a moratorium. The evidence produced by Petitioner was primarily hearsay in nature without corroboration. Respondent presented none of the patients, staff or other witness to the incidents referred to, and none of the records referred to or relied on by the surveyor were produced. Under these circumstances, Petitioner failed to meet its burden to produce clear and convincing evidence that Respondent committed the violations alleged in Petitioner's form 3020s, the Administrative Complaints, or the Order of Immediate Moratorium. Respondent's witness was credible and its explanation surrounding each incident was plausible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order determining that: The deficiencies in the AHCA form 3020s are unfounded and must be withdrawn; The Administrative Complaints be dismissed against Respondent; and The Order of Immediate Moratorium be revoked. DONE AND ENTERED this 3rd day of September, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Theodore E. Mack, Esquire Powell & Mack 803 North Calhoun Street Tallahassee, Florida 32303 DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2002. Michael P. Sasso, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Suite 310-G St. Petersburg, Florida 33701 Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue Is Respondent, Department of Corrections' (Department), Notice of Intent to Award DC RFP-13-031 for Statewide Inmate Telecommunication Services to Intervenor, Global Tel*Link Corporation (Global), contrary to the governing statutes, rules, or policies or to the Department's Request for Proposal solicitation specifications?
Findings Of Fact Background The Legislature charged the Department with protecting the public through the incarceration and supervision of offenders and rehabilitating offenders through work, programs, and services. The Department is required to provide telephone access to inmates in its custody. Inmate telecommunication services provide inmates the ability to stay in contact with friends and family. The services promote and support efforts to help inmates re-enter society by fostering communications with the community outside jail and prison. The Department does not pay for these services. The inmates and their designated family members and friends pay for the services. The contract to provide the telecommunications service generates revenue for the Department. The provider pays the Department for access to the consumers. The provider charges the inmates and their designees for the service. The provider pays the Department a commission calculated as a percentage of revenues received. The commission is calculated as part of the charge for the services and is included in it. The price competition portion of the RFP is based on the prices charged to the inmates and designees and the commissions paid to the Department. According to the RFP, the State of Florida presently has a total inmate population of approximately 102,000 people. In fiscal year 2010-2011, the inmate calling services generated total revenue of $14,180,345 from 9,587,040 calls. In fiscal year 2011-2012, the inmate calling services generated total revenue of $13,513,495 from 8,226,577 calls. And in 2012-2013, the inmate calling services generated total revenue of $14,749,021 from 8,853,316 calls. In 2012–2013, interstate calls generated 11.6 percent of calls and 12.9 percent of revenues from the contract. Securus holds the contract with the Department to provide inmate telephone services and has for over six years. Before February 11, 2014, Securus paid a 35 percent commission to the Department on all of its call revenue from the contract. That changed as of February 11, 2014, when the Department interpreted a stayed order of the Federal Communications Commission (FCC), discussed in more detail later, to prohibit collecting the commissions on interstate calls. The record does not reveal if Securus stopped collecting the commission portion of the rates charged to inmates and their designees. The Department does not collect commissions because it interprets the FCC order to say that it cannot receive commission revenue because it is a state agency. The Department also declines to accept commissions because it fears finding itself in a position where it may have to refund money which has already been transferred to the general fund, possibly an earlier year's general fund. During the RFP process, Securus was aware of the Department's interpretation of the FCC order, because it had negotiated the change to its existing contract to end commission payments. The changes did not affect Securus charging inmates the commission. The Department did not include its interpretation of the order in the RFP, as modified by the Addenda. Commissions on interstate calls are significant revenue for the Department. This case involves the Department's second attempt to award a new contract for inmate telecommunication services. Earlier, the Department issued an Invitation to Negotiate for these services. CenturyLink, Global, and Securus all responded. The Department negotiated with all three. The Department initially decided to award the contract to CenturyLink. Eventually, the Department rejected all bids after it determined that the scoring language and selection criteria were poorly worded. They were subject to different reasonable interpretations that made how the Department would select the winning vendor unclear and made the playing field for vendors unequal. The vendors protested the decision to reject all bids. In upholding the decision to reject all bids, Administrative Law Judge Scott Boyd found at paragraph 70: The Department concluded that the wording and structure of the ITN and RBAFO did not create a level playing field to evaluate replies because they were confusing and ambiguous and were not understood by everyone in the same way. Vendors naturally had structured their replies to maximize their chances of being awarded the contract based upon their understanding of how the replies would be evaluated. The Department concluded that vendor pricing might have been different but for the misleading language and structure of the ITN and RBAFO. Global Tel Link Corp. v. Dep't of Corr., Case No. 13-3041BID (Fla. DOAH Nov. 1, 2013), adopted in whole, except for correcting two scrivener's errors, FDOC Case No. 13-81 (Fla. DOC Nov. 25, 2013). The Request for Proposals The Department released the RFP seeking to establish a five-year contract with a vendor to provide inmate telecommunications services on March 7, 2014. The Department subsequently issued Addenda 1, 2, and 3 to the RFP. The Addenda included vendor questions and the Department's answers. No vendor protested any term, condition, or specification of the RFP or the Addenda. The RFP sought vendor proposals to provide an inmate telephone system, video visitation system, and other services for inmates housed in the Department's facilities. The requested services included the actual service, system design, equipment, installation, training, operation, repair, and maintenance at no cost to the Department. The RFP included security, reporting, auditing, and monitoring requirements. It also established the procurement process, including scoring criteria. Of the RFP's 66 pages, only the commissions' role in pricing, scoring procedure, the score given Securus for its response to RFP section 3.15, and treatment of refunds are the focus of the disputes in this proceeding at this point. Review and Scoring The RFP established proposal scoring based upon four categories. The chart below reflects the categories, the tab of the RFP in which the scored categories are described, and the maximum points allowed for category. Mandatory Responsiveness Requirements 0 points Executive Summary and Other Proposal Submissions 0 points Category 1--Business/Corporate Qualifications (Tab 3) 50 points Category 2--Project Staff (Tab 4) 200 points Category 3--Technical Response (Tab 6) 400 points Category 4--Price Proposal 350 points TOTAL POSSIBLE POINTS 1,000 points The RFP breaks each of the categories into components, each referencing and correlating to specific RFP sections. These are found at RFP "Attachment 4--Evaluation Criteria." For each component, the Evaluation Criteria posed a question. For example, in Category 3, a question asks "How adequately does the Respondent describe their overall capability and process for providing a video visitation system?" The RFP provides a maximum score for each scoring component, which range from 15 to 50 points depending on the relative importance of the particular component. Each proposal was graded on the following qualitative scale: Omitted, Poor, Adequate, Good, and Exceptional. The RFP associates a point value with each qualitative description for each particular scoring component. For instance, if a component had a maximum score of 25 points, the scoring framework was as follows: Omitted--0; Poor--6.25; Adequate--12.5; Good--18.75; and Exceptional--25. A score of zero meant that a vendor completely omitted any information for the item from which a qualitative assessment could be made. The RFP directed the vendors how to generally format and package their proposals. Specifically, RFP Section 5 (Proposal Submission Requirements) stated: All Project Proposals must contain the sections outlined below. Those sections are called "Tabs." A "Tab," as used here, is a section separator, offset and labeled, (Example: "Tab 1, Mandatory Responsiveness Requirements"), such that the Evaluation Committee can easily turn [t]o "Tabbed" sections during the evaluation process.Failure to have all copies properly "tabbed" makes it much more difficult for the Department to evaluate the proposal. Vendors were to include seven "tabs" within their proposals: Tab 1 Mandatory Responsiveness Requirements Tab 2 Transmittal Letter with Executive Summary Tab 3 Business/Corporate Qualifications Tab 4 Project Staff Tab 5 Respondent's Financial Documentation Tab 6 Technical Response Tab 7 Minority/Service Disabled Veteran Business Enterprise Certification The RFP gave further instructions about the contents within each tab. RFP Section 5.6 provided the requirements for Tab 6, Technical Responses. It required vendors to provide a narrative technical response identifying how vendors will meet the scope of services required by the RFP and, more specifically, the scope of services described in RFP Sections 2 (Statement of Need/Services Sought) and 3 (Scope of Services). The RFP did not mandate any other formatting requirements for the contents of Tab 6. This becomes significant in the analysis of Securus's response to section 3.15 of the RFP. The RFP advised that the Department would assign an evaluation committee to evaluate proposals. It did not state how many evaluators would be selected to score proposals or whether evaluators would be responsible for scoring proposals in their entirety or just specific portions. The Department appointed a team of six evaluators: Jon Creamer, Shane Phillips, Randy Agerton, Steve Wilson, Charles Lockwood, and Richard Law. Mr. Law, a certified public accountant, reviewed each vendor's financial submissions on a pass/fail basis. The other five evaluators scored the technical responses, categories one through three. Julyn Hussey, the procurement officer, trained the evaluators, except for Mr. Law. She provided the evaluators with a training manual, the RFP, the vendors' proposals, and scoring sheets. During training, Ms. Hussey instructed the evaluators to review proposals in their entirety to properly evaluate and score their various components. The Department gave the evaluators approximately eight days to evaluate and score the proposals. The evaluators did not consult with each other during their evaluation. Each evaluator turned his completed score sheet in to Ms. Hussey. She then compiled the technical response scores. Ms. Hussey also calculated the price scores by taking the prices from the vendors' price sheet submissions and applying the RFP price scoring formula. The Department combined the technical and price scores to calculate each vendor's total score. Global received the highest total score with 2,960.42 points. Securus was second with 2,911.04 points. CenturyLink was third with 2,727.94 points. Global outscored Securus by 49 points on a 3,600-point scale. Global outscored CenturyLink by 232.48 points. Securus outscored CenturyLink by 183.10 points. Commissions, Pricing, and an FCC Order The vendors' price proposal was a critical category of the RFP review and evaluation. It was worth 350 of the 1,000 points available. Only the technical response could score more points, 400. Of the 350 points, 300 points were directed toward the inmate telephone service price proposal and 50 points were for the video visitation service price proposal. The RFP subdivides the inmate telephone service points into 150 possible points for the provider offering the highest commission payments to the Department; 125 points for the lowest intralata, interlata, intrastate, and interstate per-minute rates; and 25 points for the lowest local and local extended area per-minute rates. The vendor with the most favorable numbers in each subcategory received the maximum points. The rest received a percentage of the maximum points based on a ratio between their bid and the most favorable bid RFP Section 3.8.3, "Rate and Call Charge Requirements"3/ provided: For the price sheet, the Respondent shall establish a separate single, blended rate per minute, inclusive of all surcharges and department commission rate on the price sheet (attachment 5) for the inmate telephone service and the video visitation service. Local and local extended area service calls shall be billed as local calls and shall not exceed $0.50 for a 15 minute phone call. For the price sheet, the Respondent shall establish a single, blended rate per minute, inclusive of all surcharges, for all calls on the North American Dialing Plan, including intralata, interlata, intrastate, and interstate calls which shall not exceed the maximum rate per minute allowed by the Federal Communications Commission (FCC) and appropriate regulatory authority during the time the call is placed. In addition to the FCC, vendors can contact the state consumer protection agency, Better Business Bureau, or State Attorney General's Office to obtain maximum rate per minute information. Note: In accordance with Federal Communications Commission 47 CFR Part 64[WC Docket No. 12-375; FCC 13-113]--Rates for Interstate Calling Services--effective February 11, 2014, no commission shall be paid on revenues earned through the completion of interstate calls of any type received from the Contract Call charges for international calls shall not exceed the maximum rate allowed by the appropriate regulatory authority during the time the call is placed. Local call charges for coin-operated telephone calls at the Work Release Centers shall not exceed thirty-five cents (.35) per local call plus the Local Exchange Carrier (LEC) charges, which vary between LEC's. Long distance call charges for coin-operated phones at the Work Release Centers shall be at the same rates for inmate telephone calls. The Contractor shall agree that charges for calls shall include only the time from the point at which the called party accepts the call and shall end when either party returns to an on-hook condition or until either party attempts a hook flash. There shall be no charges to the called party for any setup time. The Contractor shall not charge, pass on, or pass through to the customer paying for collect or prepaid calls any charges referred to as Local Exchange Carrier's (LEC's) or Competitive Local Exchange Carrier's (CLEC's) billing costs, or any bill rendering fee or billing recovery fee. The Contractor shall also ensure that LEC's and CLEC's do not charge or pass on to the customer any additional fee or surcharges for billing. The Contractor shall be responsible for any such LEC or CLEC surcharges incurred if billing through the LEC or CLEC. In addition, the Contractor shall not charge, pass on, or pass through to the customer paying for the collect, prepaid calls or video visitation visits any of the following charges and/or fees: Bill Statement Fee, Funding Fee, Mail-In Payment Fee, Western Union Payment Fee, Refund Fee, Regulatory Recovery Fee, Wireless Admin Fee, Single Bill Fee, Paper Statement Fee, Account Setup Fee, Account Maintenance Fee, Inactive Account Fee, Account Close-Out Fee, Non-Subscriber Line Charge, Inmate Station Service Charge, Third-Party Payment Processing Fee, State Regulatory Recovery Fee, Check/Money Order Processing Fee, Biometric Service Charges, JPay Payment Fee, Federal Regulatory Cost Recovery Fee, Regulatory and Carrier Cost Recovery Fee, Validation Surcharge or Wireless Termination Surcharge. The Contractor shall ensure, inmates' family and friends utilizing the Florida Relay Service to receive calls from inmates are charged the same rates as those family and friends receiving calls from inmates not utilizing this service. [emphasis added]. The Department intended for the boldface note to advise responding vendors that the vendor would not pay commissions on interstate call revenues. The language raised questions which the Department replied to in the Addenda issued after the RFP issued. None of the Addenda modified the plain statement in section 3.8.3 that "the Respondent shall establish a separate single, blended rate per minute, inclusive of all surcharges and department commission rate on the price sheet (attachment 5) for the inmate telephone service." Section 7.3.1 of the RFP established the requirements for commission and monthly payments. It states: The Contractor shall pay to the Department a monthly commission based on the percentage of gross revenues as determined through this RFP process. The Department will begin to receive payment for a facility on the date the Contractor assumes responsibility for the operation of that facility's inmate telecommunication service in accordance with the Final Transition and Implementation Plan. Sections 7.3.2 through 7.3.4 contain additional requirements for commission payments, supporting documentation for the commission calculation, and penalty, if the vendor does not timely make the final commission payment at the end of the contract. They make the importance of commission payments to the Department clear. Attachment 5 is a mandatory form for vendors to provide their proposed call and commission rates. It contains the same boldface note about the FCC order as section 3.8.3. The form solicited a blended rate and a single commission rate for telephone services. FCC, 47 C.F.R. Part 64 (WC Docket No. 12-375; FCC 13-113) (FCC order), referred to in RFP Section 3.8.3 and Attachment 5, is a commission decision and regulation, effective May 31, 2013, addressing a need for reform in what the FCC determined were "egregious interstate long distance rates and services" in the inmate telecommunications business. The FCC identified paying commissions to correctional institutions and including them in the rates charged inmates and their families and other designees as a significant factor contributing to unreasonably high rates for inmate telecommunications services. The decision also addressed surcharges and fees. The FCC determined that inmate telecommunications charges must be cost- based and that commission payments, among other things, could not be included in the costs. The FCC adopted subpart FF to 47 C.F.R. part 64 of its regulations to regulate inmate calling services. The FCC included in subpart FF, section 64.010, titled, cost-based rates for inmate calling services. It states: "All rates charged for Inmate Calling Services and all Ancillary Charges must be based only on costs that are reasonably and directly related to the provision of ICS [inmate calling services]." This is the rule implementing the FCC's decision that commission payments are not included in the reasonably and directly related costs. The FCC made clear that it was not prohibiting payment of or collection of commissions, only prohibiting including them in the costs determining the fee paid by inmates and their designees. The FCC addressed this in paragraph 56 of the order, which states: We also disagree with ICS providers' assertion that the Commission must defer to states on any decisions about site commission payments, their amount, and how such revenues are spent. We do not conclude that ICS providers and correctional facilities cannot have arrangements that include site commissions. We conclude only that, under the Act, such commission payments are not costs that can be recovered through interstate ICS rates. Our statutory obligations relate to the rates charged to end users—the inmates and the parties whom they call. We say nothing in this Order about how correctional facilities spend their funds or from where they derive. We state only that site commission payments as a category are not a compensable component of interstate ICS rates. We note that we would similarly treat "in-kind" payment requirements that replace site commission payments in ICS contracts. Providers of inmate calling services, including all three vendors in this proceeding, sought review of the decision and regulation by the United States Court of Appeals for the District of Columbia Circuit. The court stayed section 64.010, along with sections 64.6020, and 64.6060. Following release of the RFP, the Department received and answered inquiries from vendors. The inquiries, the Department's responses, and changes to the RFP are contained in Addenda 1, 2, and 3 to the RFP. Rates and commissions received a fair amount of attention in the process. In response to inquiries about section 3.8.3 and Attachment 5, the Department changed both with Addendum 2. The questions and Department responses follow. Question No. 4 states: Page 30: 3.8.3 - Rate and Call Charge Requirements and Attachment 5 – Blended Call Rates. Regarding the blended rate (inclusive of all surcharges) to be bid – the current wording could be opportunistically misinterpreted in a few different ways: First in the treatment of per-call versus per-minute fees, based on our understanding, one bidder could possibly offer a flat $1.80 per call fee for non-local inmate telephone calls and claim to have the same blended rate ($1.80/15 minutes = $0.12) as someone bidding $0.12 per minute with no per-call fee. This could occur even though calls average less than 15 minutes (and many calls are less than 10 minutes), meaning these two offers are not comparable in terms of overall cost to family members. Second, the RFP wording could also possibly be interpreted as allowing a Contractor to set different rates for different call types (collect/prepaid, intraLATA/interstate) and then averaging them using assumptions they define. Question 1: To minimize cost to family members and make offers comparable, would the Department please explicitly disallow per-call fees for the inmate telephone system (for example, per-call setup charges, per-call surcharges), allowing only a true per-minute rate? Question 2: If no to Question 1, would the Department require separate disclosure of per-call fees and per-minute rates? Question 3: Would the Department please verify that ALL non-local domestic calls-- intraLATA, interLATA, and interstate, for both collect and prepaid-–must be charged at an identical rate? Answer No. 4 states: Question 1: Per this Addendum #2, the following revisions will be made to Section 3.8.3: In 3rd paragraph after first sentence add: The Respondent shall establish a separate single, blended rate per minute inclusive of all surcharges for all local and local extended area calls. These per minute rates delete: which Delete 4th paragraph beginning with Note. In 6th paragraph first sentence revised to read: Local call charges for coin-operated telephone calls at the Work Release Centers shall not exceed forty-five cents (.45) per local call plus the Local Exchange Carrier (LEC) charges, which vary between LEC's. In 9th paragraph following In addition, the Contractor shall not charge, pass on, or pass through to the customer paying for the collect, prepaid calls or video visitation visits any of the following charges and/or fees: Add Pre-call setup charges, Pre-call surcharges, Delete last paragraph; Question 2: Not applicable, Question 3: Confirmed, per Section 3.8.3 all non-local and local extended area calls must be charged at an identical rate. Question No. 5 states: Attachment 5 - Price Sheet. Page 30--Section 3.8.3 states that on the price sheet, the Respondent will provide a "single, blended rate per minute, inclusive of all surcharges . . . ." Attachment 5 states "Blended Telephone Rate for All Calls . . ." To eliminate ambiguity, would the Department consider changing the language in Attachment 5 to read "Blended Telephone Rate Per Minute for All Calls . . . ?" [sic] Answer No. 5 states: Attachment 5 will be revised to include "Blended Telephone Rate Per Minute for All Calls". Question No. 6 states: Page 30: 3.8.3 - Rate and Call Charge Requirements. The fourth paragraph states that "In accordance with Federal Communications Commission 47 CFR Part 64 [WC Docket No. 12-375; FCC 13-113]--Rates for Interstate Calling Services--effective February 11, 2014, no commission shall be paid on revenues earned through the completion of interstate calls of any type received from the Contract." Respectfully, this interpretation of the FCC's Order is incorrect. The Order, without question, does not prohibit the payment of commissions on interstate calls. Also, rules regarding future cost-based regulation (including consideration of commissions in rate-setting) have been stayed by the D.C. Circuit Court of Appeals, and FL DOC interstate rates are well below the FCC rate caps that have been left in place by the Court. This is why most providers have continued to pay commissions on interstate calling, in compliance with their contracts. Q. Will the State consider removing this paragraph from the RFP in order to ensure revenue for the State and a level playing field across providers? Answer No. 6: Section 3.8.3 and Attachment 5--Price Sheet is amended, per this Addendum to remove the paragraph. In addition, Section 7.3.1 has also been amended, per this Addendum, to state that commissions will be paid in accordance with all Federal, State and Local regulations and guidelines. Further questions and clarifications followed. They are found in Addendum 3 to the RFP. Question No. 2 states: In Addendum No. 2; Answer #4 Revises Section3.8.3 by revising the 3rd paragraph Instructions are to add the following language: The Respondent shall establish a separate single, blended rate per minute inclusive of all surcharges for all local and local extended area calls. These per minute rates (delete: which) For the price sheet, the Respondent shall establish a single, blended rate per minute, inclusive of all surcharges, for all calls on the North American Dialing Plan, including intralata, interlata, intrastate, and interstate calls which shall not exceed the maximum rate per minute allowed by the Federal Communications Commission (FCC) and appropriate regulatory authority during the time the call is placed. The Respondent shall establish a separate single, blended rate per minute inclusive of all surcharges for all local and local extended area calls. These per minute rates (deIete [sic]: which). In addition to the FCC, vendors can contact the state consumer protection agency, Better Business Bureau, or State Attorney General's Office to obtain maximum rate per minute information. The instructions to add "These per minute rates (delete: which)" does not fit with the instructions. The word "which" is not included in this area of paragraph 3. Question #2: Can the Department please clarify? Answer No. 2 states: To further clarify 3.8.3, paragraph 3 is revised to read as follows: For the price sheet, the Respondent shall establish a single, blended rate per minute, inclusive of all surcharges, for all calls on the North American Dialing Plan, including intralata, interlata, intrastate, and interstate calls. The Respondent shall also establish a separate single, blended rate per minute inclusive of all surcharges for all local and local extended area calls. Both of these per minute rates shall not exceed the maximum rate per minute allowed by the Federal Communications Commission (FCC) and appropriate regulatory authority during the time the call is placed. In addition to the FCC, vendors can contact the state consumer protection agency, Better Business Bureau, or State Attorney General's Office to obtain maximum rate per minute information. Question No. 3 states: Question: Is the Department requiring the successful Respondent to pay commissions on revenues generated through the completion of interstate calls? Answer No. 3 states: The Department's position is that the collection of commission rates will be determined by the FCC ruling 47 CFR Part 64 [WC docket no. 12-375; FCC13-113]. For purposes of this solicitation the Department requests respondents submit a commission rate for interstate calls. The Department will comply with any future FCC ruling. Question No. 10 states: Section 7.3.1 was revised to include: "Commissions will be paid in accordance with all Federal, State and Local regulations and guidelines." There are no Federal, State, or Local regulations and guidelines which require phone vendors to pay commissions on interstate calling. Thus, in not paying commissions on interstate calling, there would be no violation of any Federal, State, or Local regulation or guideline. The requirement as to whether or not commissions will be paid on interstate calling must come from FL DOC and must be clearly indicated in the RFP. If not clearly indicated one way or another, we fear some vendors may have an unfair advantage as commissions are not currently being paid and there does not seem to be a compliance issue with the current contract which requires such commissions. Please, clearly specify whether or not commissions are required to be paid on interstate calls. Answer No. 10 states: Please see answer to question 3. The Department never definitively stated whether it would ultimately collect commissions on interstate revenues. Nor did it provide a means for vendors to propose rates or commissions based upon whatever the Department concluded were the most likely scenarios resulting from the FCC order and appeal. But the Department's RFP persisted in the RFP requirement that the bidders must include the commission in the calculation of their blended rate for the price proposal. This stands in contrast to the RFP's lengthy list of items, such as bill statement fees, paper statement fees, and account setup fees, which could not be included in the rate. These are items, like the commissions, that the FCC order said could not be part of the fee base. A vendor, who did not calculate the commission in the blended rate, would have a significant price advantage over a vendor who included the commission in its blended rate. It could propose lower rates and/or higher commissions while maintaining its profit margin. That is because although the price sheet identifies a commission, the commission is not accounted for in the blended rate. CenturyLink included payment of a commission rate of 65.3 percent on interstate calls in the blended rate it provided on Attachment 5. This action is a reasonable application of the statements of the RFP and the Addenda about blended rates, commissions, and the cryptic statement about plans to follow the FCC order. CenturyLink proposed a blended rate that did "establish a separate single, blended rate per minute, inclusive of all surcharges and department commission rate." If CenturyLink had not included the commission payment on interstate calls in its blended rates, it could have bid higher commissions, lower rates, or a combination of both. Securus identified a commission percentage for all calls of 73 percent on its Attachment 5 price sheet. Securus did not include the cost of paying a commission on interstate calls in calculating the blended rate that it submitted. This allowed Securus to submit a lower blended rate than it would otherwise have had to submit to achieve the same revenue from the contract. The blended rate that Securus proposed did not "establish a separate single, blended rate per minute, inclusive of all surcharges and department commission rate." Global identified a commission percentage of 46 percent for all calls in its Attachment 5 price sheet. In determining the proposed rates for interstate calls, Global did not include or assume payment of the commission percentage rate. This allowed it to submit lower blended rates and/or a higher commission rate. Global did not intend to or think it would be required to pay commission rates on interstate calls. This was based on its evaluation of the FCC order, the appeal, and the Department's decision not to accept commission payments on interstate calls under its current contract with Securus. This is why it did not include the commission as a cost when calculating the blended rate. Global chose to take the business risk that its evaluation of the FCC order would be correct. If it was incorrect and a commission payment was required, Global was prepared to make the payment, even though it would not have been collected from inmates and their designees through the blended rate. The blended rate proposed by Global did not "establish a separate single, blended rate per minute, inclusive of all surcharges and department commission rate." Ms. Hussey applied the formula in the RFP to determine points awarded each vendor for its price proposal. This calculation was a ministerial function that did not call for any exercise of judgment or discretion. The overall cost ranking scores were: Global 280.42, Securus 276.04, and CenturyLink 232.94. The scores for the commissions were: Global 94.52, Securus 150, and CenturyLink 134.18. The scores for the blended rates for inmate telephone services that included interstate services were: Global 125, Securus 56.25, and CenturyLink 50.90. This difference reflects the vendors' differing treatment of commissions when proposing their blended rates. The Department did not know during the evaluation process that Global and Securus had not included or assumed payment of the commission in its proposed rates for interstate calls. The Department learned this during discovery in this proceeding. Not including commission payments on interstate calls in the proposed blended rate was contrary to the instructions of the RFP. Securus Response to RFP Section 3.15 The Department awarded Securus zero points for the question of "[h]ow adequate is the Respondent's plan to meet the performance measures outlined in section 3.15 of the RFP?" This criterion related to the performance measures of RFP Section 3.15, for which proposals could earn 125 total points. The difference between zero and the possible maximum points would have made a difference in winning and losing the contract award for Securus. The score of zero is a factual finding by the Department that Securus's 600-plus-page proposal had no information from which evaluators could qualitatively assess the proposal by that criterion. A score of zero is not a qualitative assessment, like a score of "poor" or "exceptional." A score of zero reflects a finding that information is completely absent. The evaluation criteria score sheet, RFP Attachment 4, provided factors to be considered in evaluating and scoring proposals. It presented the factors to evaluators in the form of questions to evaluators. For section 3.15, the question and accompanying scores allowed were: How adequate is the Respondent's plan to meet the performance measures outlined in section 3.15 of this RFP? (Omitted-0; Poor-6.25; Adequate-12.5; Good-18.75; and Exceptional-25.) Because the Department allowed each evaluator to score this factor, a total of 125 points was ultimately available to the vendors. RFP Section 3.15 provides: Performance Measures Upon execution of this contract, Contractor agrees to be held accountable for the achievement of certain performance measures in successfully delivering services under this Contract. The following Performance Measure categories shall be used to measure Contractor's performance and delivery of services. Note: the Contractor shall comply with all contract terms and conditions upon execution of contract and the Department may monitor each site upon implementation of services at that site to ensure that contract requirements are being met. The Department reserves the right to add/delete performance measures as needed to ensure the adequate delivery of services. Performance Outcomes and Standards; and Other Contract Requirements. A description of each of the Performance Measure categories is provided below: RFP Section 3.15 was divided into two components. Section 3.15.1 listed key "Performance Outcomes and Standards" deemed most critical to the success of the contract and required that "the contractor shall ensure that the stated performance outcomes and standards are met." The key elements were: (1) Completion of Routine Service, (2) Completion of Major Emergency Repair Service, and (3) Commission and Call/Video Visitation Detail Report (Invoice Documentation). The first is RFP Section 3.15.1. It provides: Performance Outcomes and Standards Listed below are the key Performance Outcomes and Standards deemed most crucial to the success of the overall desired inmate telecommunication service. The contractor shall ensure that the stated performance outcomes and standards (level of achievement) are met. Performance shall be measured as indicated, beginning the second month after which service has been fully implemented. Completion of Routine Services Outcome: All requests for routine service (as defined in Section 1.22) shall be completed within twenty-four (24) hours of request for service from the Department, unless otherwise instructed by the Department. Measure: Compare the date/time that service is completed to the date/time that the request for service was received from the Department by the Contractor. (Measure Monthly). Standard: Ninety percent (90%) of routine service requests shall be completed within twenty-four (24) hours of notice from the Department. Completion of Major Emergency Repair Service Outcome: All major emergency repair service (as outlined in Section 3.10.8) shall be completed within twelve (12) hours of request for repair from the Department, unless otherwise instructed by the Department. Measure: Compare the date/time that major emergency repair service is completed to the date/time that the request for major emergency repair service was received from the Department by the Contractor. (Measure Monthly). Standard: Ninety percent (90%) of routine service requests shall be completed within twelve (12) hours of notice from the Department. Commission and Call/Video Visitation Detail Report (Invoice Documentation): Outcome: The Contractor shall provide the Commission and Call/Video Visitation Detail Report to the Contract Manager or designee as specified in Section 7.3.3 within thirty (30) days of the last day of the Contractor's regular billing cycle. Measure: Compare the date the Commission and Call/Video Visitation Detail Report was received with the last day of the Contractor's regular billing cycle. (Measure Monthly). Standard: One hundred percent (100%) of Commission and Call Detail Reports shall be received within thirty (30) days of the last day of the Contractor's regular billing cycle. Upon execution of this Contract, the Contractor hereby acknowledges and agrees that its performance under the Contract shall meet the standards set forth above. Any failure by the Contractor to achieve any outcome and standard identified above may result in assessment of Liquidated Damages as provided in Section 3.17. Any such assessment and/or subsequent payment thereof shall not affect the Contractor's obligation to provide services as required by this Contract. Section 3.15.2 advised that the Department will monitor the contractor's performance to determine compliance with the contract. It states: Other Contract Requirements Standard: The Department will monitor the Contractor's performance to determine compliance with other contract requirements, including, but not limited to, the following: Video Visitation System (as outlined in Section 3.7) Inmate Telecommunication System Functionality (as outlined in Section 3.7) Transition/Implementation/Installation of System Bi-Annual Audit Timely Submittal of Corrective Action Plans (when applicable) Measure: Failure to meet the agreed-upon Final Transition/Implementation/Installation schedule or failure to meet (compliance with other terms and conditions of the contract or contract requirements listed above) may result in the imposition of liquidated damages Each of the three items in section 3.15.1 and the five items in section 3.15.2 relate directly to a particular provision within RFP Section 3 titled, "Scope of Services." Section 3.15.1 related to RFP Sections 1.22 and 3.10.7 (Routine Maintenance), 3.10.8 (Major Emergency Repair Service), and 7.3.3 (Detail Report). Section 3.15.1 specifically identifies the last two. Similarly, section 3.15.2 cross referenced section 3.7 (Telecommunications Services System Functionality) for the first two performance measure items. Two others items relate directly to sections 3.5 (Facility Implementation Plan and Transition of Service), 3.6 (Installation Requirements), and 3.11 (Bi-Annual Audit). This is significant because Sections 3.5, 3.6, and 3.11 were independently scored. In other words, the RFP required that the proposals contain a narrative explaining how vendors planned to provide the services required by each of those sections. The RFP did not require the proposals to contain a separately delineated section titled, "3.15." It only required that each proposal include, under "Tab 6," a narrative description of the vendor's solution and plan to meet the performance measures. Evaluation of Responses to Section 3.15 Global included a specifically labeled section 3.15 in its response. It essentially copied and pasted the RFP language for Sections 3.15, 3.15.1, and 3.15.2, and after each subsection, inserted the words "GTL [Global] Response: GTL understands and complies." Global did not provide a substantive narrative under the heading, section 3.15. CenturyLink's labeled response to section 3.15 was very similar. The evaluators reviewed the section of Global's proposal labeled as responsive to section 3.15. The maximum score the evaluators could award per evaluator was 25 points. Global earned scores of 25, 18.75, 12.5, 12.5, and 12.5 from Messrs. Lockwood, Agerton, Phillips, Creamer, and Wilson, respectively. The evaluators reviewed CenturyLink's proposal labeled as responsive to section 3.15. It also earned scores of 25, 18.75, 12.5, 12.5, and 12.5 from Messrs. Lockwood, Agerton, Phillips, Creamer, and Wilson, respectively. All five evaluators reviewed copies of the vendors' proposals. Some evaluators performed a section-by-section and some performed side-by-side evaluations of the proposals. Since Securus did not have a labeled section 3.15 and the other proposers did, the evaluators scored Securus's proposal as "Omitted-0" for section 3.15. After their initial review of Securus's proposal, three evaluators raised concerns with the Department's procurement officer, Ms. Hussey, over their inability to find a section in the Securus proposal specifically identified as a response to Section 3.15. Ms. Hussey reiterated the instruction given during evaluator training to review proposals in their entirety when scoring any component of the RFP. None of those evaluators changed their scores of "omitted" for section 3.15 of Securus's proposal after receiving Ms. Hussey's additional instruction and presumably performing a second review of Securus's proposal. RFP Section 3.15 included cross references to sections 3.7 and 3.10.8. Following these referenced sections to the matching section numbers in the Securus proposal reveals narratives addressing the section 3.15 requirements. In addition, these cross-referenced sections were separately scored by each evaluator during his review of each vendor's Telecommunications Service System Functionality and Telecommunication Service Equipment Requirements. Securus's proposal complied with the RFP specifications by affirming Securus's commitment to comply with section 3.15 throughout the proposal. Although Securus's proposal did not include a separate tabbed section addressing Securus's plan to meet the section 3.15 performance measures, Securus provided a narrative explaining how Securus would meet each performance measure required in section 3.15. Securus also provided narratives explaining how it would meet and provide the scope of service of each one of the performance measures of Section 3.15. The first performance measure in RFP Section 3.15.1 required that 90 percent of all routine service be completed within 24 hours of the Department giving notice to the vendor. The routine service requirement was located at section 3.10.7. In its proposal, behind Tab 6 and labeled "3.10.7 Routine Service," on page 388, Securus's response stated: All routine service shall be completed within twenty-four (24) hours of the initial system failure notice, service request for service or equipment failure or liquidated damages may be imposed as stated in Section 3.17. Securus has read, understands, and complies. Securus Field Repair staff is strategically located throughout the state to be able to respond to all repair service needs in order to meet all repair service needs. Securus will continue to complete all routine service, as we do under the existing contract, within twenty-four (24) hours if the initial system failure notice, service request for service or equipment failure or liquidated damages may be imposed as stated in Section 3.17. This response complied with the RFP requirement. It could not rationally be deemed omitted. The second performance measure in RFP Section 3.15.1 required that 90 percent of all major emergency repair services (as outlined in section 3.10.8) be completed within 12 hours of the Department giving notice to the vendor. This performance measure cross-referenced section 3.10.8. Securus's proposal behind Tab 6 and labeled "3.10.8 Major Emergency Repair Service," addressed the emergency repairs stating: All major emergency service shall be completed within twelve (12) hours of the initial system failure notice request or liquidated damages may be imposed as stated in Section 3.17. Securus has read, understands, and complies. Securus Field Repair staff is strategically located throughout the state to be able to respond to all repair service needs in order to meet all repair service needs. Securus will continue to complete all major emergency service, as we do under the existing contract, within twelve (12) hours if the initial system failure notice, service request for service or equipment failure or liquidated damages may be imposed as stated in Section 3.17. Securus's response complied with the RFP requirement. It could not rationally be deemed omitted. The third performance measure in RFP Section 3.15.1 required that the Commission and Call/Video Visitation Detail Report (Invoice Documentation) be provided to the contract manager or designee, as specified in section 7.3.3 at the end of every month with the contractor's regular billing cycle. Securus addressed this requirement behind Tab 6 in a section labeled "2.4 Revenue to be Paid the Department," on page 107. Securus's response stated: This RFP will result in a Revenue Generating Contract. The Contractor shall pay the Department a commission based on a percentage of gross revenue. The Contractor shall be responsible for collections and fraud, and shall not make any deductions from gross revenue for uncollectible accounts, billing fees or other administrative costs prior to applying the commission percentage. Notwithstanding the above, gross revenue shall not include taxes charged by an appropriate governmental entity. The monthly commission amount is obtained by multiplying the commission percentage times each month's total charges. The successful contractor shall submit a Commission and Call/Video Visitation Detail Documentation for Monthly Payment report as indicated in Section 7.3.3 with the monthly commission payment. Securus has read, understands and complies. Securus will provide the monthly payment report as required and will provide all appropriate auditing detail required upon request from the Department. This response complies with the RFP requirement and cannot rationally be deemed omitted. Some evaluators acknowledged that they did not factor Section 3.15.2 into their scoring of Securus's proposal. The terms of the RFP require considering section 3.15.2 during the scoring of section 3.15. It is part of that section. Failing to consider Securus's narrative related to section 3.15.2 is not rational. As with section 3.15.1, Securus's proposal complied with the RFP Section 3.15.2. Securus committed to complying with the requirements of section 3.15.2 throughout its proposal. The record does not prove whether each evaluator re-reviewed the cross-referenced sections identified in Section 3.15. But Mr. Phillips did. Despite seeing the exact language in those sections as required in the "Outcome" portion of Section 3.15, Mr. Phillips awarded Securus a score of zero because, in his mind, "key parts of 3.15" were not addressed. The conclusion that Securus entirely omitted a plan to address Section 3.15's requirements is irrational and clearly erroneous. Something was there. A score of omitted is not supported. Mr. Phillips also did not score section 3.15 consistently with the way he scored another section of Securus's proposal. He originally gave Securus a score of zero for section 3.14 entitled, Training, because he did not find a specifically delineated section titled section 3.14 in Securus's response. But Mr. Phillips changed his score before submitting it to Ms. Hussey because upon further review of Securus's proposal, he found some aspects that addressed the training requirements of section 3.14. He scored that section accordingly. This highlights the error in evaluators not doing the same with section 3.15. The evaluators irrationally concluded that Securus failed to include in its technical proposal any information explaining how it would meet the performance standards and outcomes of section 3.15. Some evaluators relied on the theory that Securus did not "acknowledge" the outcomes and standards. As established above, Securus acknowledged that "the Performance Outcomes and Standards are crucial to the success of the overall inmate telephone service," and throughout its technical response, Securus addressed all the required outcomes and standards. Securus mentioned and acknowledged the performance outcomes and standards a total of six times in its proposal: twice on page 42 and once on each of pages 100, 138, 160, and 392. Three of those pages were narrative responses to sections 3.7 and 3.11, which are specifically included as part of section 3.15. Some evaluators also claimed that Securus never expressly agreed to be bound by the performance measures of section 3.15. That may theoretically affect the qualitative evaluation of the response, but it does not support a finding that the information was omitted. Also, the RFP did not require a vendor to specifically delineate each of the 18 subsections of section 3 in its response. To comply with the Technical Response section of the RFP, a vendor needed to address, in narrative form, its plan to provide the scope of services outlined in section 3. This was not disputed. Several Department employees testified and agreed that a response to the RFP did not require specifically delineated sections of the response that mirrored the delineation of the RFP. Inclusion of Prohibited Fees In Addendum 2, the Department asked the vendors to provide a sample refund policy. The policies were not described as or intended to be final refund policies that would be used in administration of the contract. The terms of a refund policy, if any, would be negotiated with the winning vendor, subject to the requirements of the RFP, including the prohibition against including fees in the blended rate. The sample policies of Securus and Global included some costs or forfeitures for obtaining a refund depending on how and when the inmate sought the refund. These are not prohibited fees or even items agreed to in the RFP. They are only samples. The evidence does not prove that the sample refund policies violate the requirement of section 3.8.3. Scoring The review and evaluation process described in section 6 of the RFP identified the maximum number of points that could be awarded for each part of the inmate calling services project. The total number of possible points was 1,000. The sections and points allotted to them were as follows: Mandatory Responsiveness Requirements--0, Executive Summary and Other Proposal Submissions--0, Business/Corporate Qualification--50, Project Staff--200, Technical Response--400, and Price Proposal--350. This allowed 350 points for the pricing section and 650 for the remaining technical sections. Because each evaluator scored the technical sections, the cumulative totals of their scores exceed 1,000. Securus maintains that this scoring is inconsistent with the process described in the RFP. But each evaluator scored the technical portion of the proposals within the maximum 650 total points available to each vendor. And the procurement staff scored the price proposals within the maximum 350 points available for price to each vendor. Applying the RFP's mathematical scoring methodology to the price proposals, the procurement staff scored the pricing as follows: Global 280.42, Securus 276.04, and CenturyLink 232.94. The scoring for each was within the RFP's 350-point maximum. The scores given by each evaluator for the technical portion of the vendors' proposals are as follows: EVALUATORS: Shane Phillips Steve Wilson Jon Creamer Charles Lockwood Randy Agerton CenturyLink 722.94 857.94 707.94 776.69 734.19 Securus 749.79 808.54 702.29 834.79 779.79 Global 782.92 880.42 751.67 859.17 802.92 Each evaluator's technical score when combined with the pricing score was within the RFP's 1,000-point maximum. Ms. Hussey totaled all the evaluator's technical scores for each vendor with the pricing score for that vendor. The resulting number exceeded 1,000. The award memorandum presented the totals, as follows: Ranking = Cost + Total Evaluator Scores (As Posted) Commission + Rates Evaluation Scores Total Ranking Global 280.42 2,680.00 2,960.42 1 CenturyLink 232.94 2,495.00 2,727.94 3 Securus 276.04 2,635.00 2,911.04 2 This method of compilation did not affect the relative ranking of the vendors. If the technical scores awarded by the five evaluators are averaged and added to the pricing scores, the points total for each vendor is under 1,000. And the ranking of the vendors does not change. Ranking = Cost + Evaluator Scores (Evaluator Scores Averaged) Commission + Rates Evaluation Scores Total Ranking Global 280.42 535.00 815.42 1 CenturyLink 232.94 499.00 731.94 3 Securus 276.04 527.00 803.04 2 Averaging in this fashion is consistent with the RFP. The evidence does not prove the Department erred in scoring the proposals.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a final order rejecting all proposals for Request for Proposal DC RFP-13-031. DONE AND ENTERED this 4th day of September, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 2014.
The Issue This case concerns the issue of whether Baker Correctional Institution Operating Procedure 78-0-3, requiring a V-68 series lock is an invalid exercise of delegated legislative authority. This rule challenge proceeding was initiated by the fIling of a petition to determine the invalidity of a rule on December 5, 1983. By order of assignment, this case was assigned to the undersigned Hearing Officer on December 12, 1983, and the formal hearing was held on January 5, 1984. At the formal hearing, the Petitioners called as witnesses William M. Ellis, Michael R. Odom, and Melvin Davis. Petitioners Dennis Michael Neary, Curtis Head, and Joe Lewis Holland testified on their own behalf. The Petitioners offered and had admitted into evidence Petitioners' Exhibit No. 1 and 2. Respondent presented no evidence. Petitioners and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with this order, they are rejected as not being supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact The Petitioners are inmates, who at the time of hearing were incarcerated in Baker Correctional Institution, Olustee, Florida. Baker Correctional Institution is a prison operated and maintained by the Department of Corrections. The Superintendent of Baker Correctional Institution has issued Institutional Operating Procedure which provides in part that each inmate may have as a part of his personal property "1 Each Combination Lock (Master V-68 Series) . These locks are used by the inmates to secure their personal storage lockers where authorized valuables and personal property items of the inmate are stored. This operating procedure was first issued on August 1, 1978, and revised April 29, 1983. No evidence was presented as to the provisions contained in the operating procedure prior to its revision on April 29, 1983. There is no exception to the requirement that the lock be a "Master V- 68 Series." This lock is required because a master key permits the institution personnel to inspect the contents of an inmate's locker at any time. The Superintendent considers a key lock to be a security problem because it would better enable an inmate to hide a weapon or contraband in his storage locker. The policy contained in Operating Procedure 78-G-B is based upon the Superintendent's interpretation of those Policy and Procedure Directives listed in the referenQe portion of the operating procedure. That reference section includes: Florida Statutes, Chapters 20.315, 915.23, 944.09, 944.081 and 945.21 Department of Corrections Policy and Procedure Directive No. 3.01.01, 3.01.04 and 3.04.07 These Policy and Procedure Directives have not been promulgated as rules and are not contained in the Florida Administrative Code. The numbers assigned to these directives do not comport with the rules of the Department of State. These policy and procedure directives were not offered into evidence or made a part of the record by either party. The superintendent relied upon those statutory sections contained in the reference section as his authority for issuing the challenged operating procedure. Under Operating Procedure 78-G-3, inmates who transferred to Baker Correctional Institution who owned another type of lock were not allowed to keep the lock and were required to purchase a "Master V-68" type lock. If the inmate did not have sufficient funds to purchase such a lock, he was required to either leave his personal property with an institutional employee or keep it in his storage locker without a lock. Petitioner Joe Lewis Holland had a master keyed lock when he arrived at Baker Correctional. This lock is now being held by the property and receiving officer. When Petitioner Dennis Michael Neary arrived at Baker Correctional, he had a V-64 type combination lock. Petitioner Neary purchased his lock while an inmate at Cross City Correctional Institution. Cross City Correctional permits inmates to keep the locks they have when they arrive at that facility. As a result of not having a lock, some of Mr. Neary's personal property was stolen from his storage locker. Approximately December 10, 1983, after his property was stolen, Petitioner Neary received a V-68 type lock on loan from the institution. He had to return that lock no later than January 10, 1984. Mr. Neary has no living relatives to whom his unauthorized personal property can be sent. The policy of loaning locks to new arrivals is a new policy adopted in December, 1983. The Operating Procedure 73-G-3 had not at the time of hearing been revised to permit such a loan. Under this new policy, an inmate who does not have enough money to purchase a V-68 type lock will be loaned a V-68 type lock until he has earned enough to buy one or until the end of 30 days, whichever is shorter. The cost of the V-63 type lock is approximately $4.00. Petitioner Curtis Head arrived at Baker Correctional Institution on September 23, 1983. Upon arrival, he did not have a V-68 type lock and had to leave his valuable and personal property with the property and receiving officer for the two weeks it took him to obtain a V-68 type lock. The Master keyed lock belonging to Petitioner Holland was purchased by him while he was an inmate at Union Correctional Institution. He purchased the lock for $4.65. He was without a lock for 1 1/2 months after he arrived at Baker Correctional Institution. The locks that are being held by the property and receiving officer are held for a period of 30 days. If the inmate has not made arrangements to send the lock and any property held to a relative or friend within the 30 days, then the property is disposed of by the institution. When an inmate arrives at Baker Correctional Institution, the property and receiving officer inventories all the inmate's personal property. All unauthorized items such as a non V-8 type lock are not permitted Inside the facility.
Findings Of Fact There are no issues of material fact in dispute. Respondent, Department of Children and Families (Department), pursuant to section 394.9151, Florida Statutes (2018),2/ has contracted with a private entity, Wellpath, LLC (Wellpath), to use and operate a facility, Florida Civil Commitment Center (FCCC), to comply with the requirements of chapter 394, part V (entitled “Involuntary Civil Commitment of Sexually Violent Predators”). Petitioner, who is a sexually violent predator, is a person subject to chapter 394, part V, and is confined in the FCCC. Petitioner alleges that the FCCC Resident Handbook is an unpromulgated rule which is imposed on FCCC residents, and that the same is an improper exercise of delegated legislative authority as a de facto agency rule that has not been adopted pursuant to the rulemaking procedures of section 120.54(1)(a), Florida Statutes. Petitioner also claims that because “Baker Act residents” are housed at FCCC, then “all rules governing every aspect of the facility must be implemented” in accordance with section 394.457. Petitioner does not allege that he is housed at FCCC pursuant to the Baker Act.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since August 10, 1988, certified by the Commission as a correctional officer. He holds certificate number A86-502-07. Respondent has spent his entire career as a correctional officer with the Metro-Dade Corrections and Rehabilitation Department (hereinafter referred to as "Metro"). He currently holds the rank of corporal. On June 26, 1989, Respondent was a Correctional Officer I and assigned to the third floor of Metro's Pre-Trial Detention Center, which is also known as the Main Jail. He worked the 3:00 p.m. to 11:00 p.m. shift that day. During the eight month period prior to June 26, 1989, Respondent served as the acting supervisor of the third floor of the Main Jail during his shift. June 26, 1989, was Corporal Darlene Beasley's first day as the Main Jail's new third floor supervisor during the 3:00 p.m. to 11:00 p.m. shift. Respondent was one of the officer's under her supervision that day. On June 26, 1989, the third floor of the Main Jail housed approximately 220 inmates in three separate wings, "A" Wing, "B" Wing and "C" Wing. John Breedlove was one of these inmates. Breedlove was 19 years old. His height was approximately five feet, eight inches. His weight was approximately 210 pounds. Breedlove had the privilege of being a trustee. Consequently, his cell was in "B" Wing, which housed all of the trustees on the floor. Trustees are inmates who are given various tasks to perform in and around the Main Jail. They perform these tasks under the supervision of a Labor Supervisor and receive monetary compensation and gain time for their services. As a general rule, trustees are accompanied to and from their work assignments by their Labor Supervisor, who signs them out when he or she takes them from the floor and signs them back in when he or she returns them to the floor. Sometimes, however, a staff member other than a Labor Supervisor will assume the responsibility of escorting trustees to and from their work assignments. Escorting trustees to and from their work assignments lessens the likelihood that they will be successful in any efforts they may make while they are out of their cells to obtain contraband and distribute the contraband to other inmates at the facility. On June 26, 1989, Breedlove was assigned trustee duty in the rear lobby of the Main Jail, which is located on the first floor of the facility. The work was to be performed during the 3:00 p.m. to 11:00 p.m. shift that day under the supervision of Labor Supervisor Ricardo Gibson. Gibson signed Breedlove out at the beginning of the shift and escorted him to his work assignment on the first floor. Sometime thereafter Breedlove asked Gibson if he could return to the third floor to get a haircut and take care of some laundry. Gibson replied that Breedlove could do so, but only after he had completed his work assignment. Later that day, after he had done some, but not all, of the work he had been assigned, Breedlove encountered Beasley, who was on the first floor to obtain information concerning the whereabouts of certain inmates assigned to her floor. Breedlove told Beasley that he had completed his work assignment and requested that she escort him to the third floor. Beasley complied with Breedlove's request. Respondent had just finished giving the inmates in "A" Wing their dinner meal when he noticed Breedlove sitting on a bench outside the attorney interview rooms located on the third floor. Respondent asked Breedlove what he was doing there. Breedlove responded that he had returned to the floor to get a haircut and to do his laundry. Respondent admonished Breedlove for being on the floor and instructed him to return to his work assignment. Respondent thereupon continued his feeding of the inmates on the floor. After he had delivered to the inmates in "B" Wing their dinner meal, Respondent again saw Breedlove outside the attorney interview rooms. Respondent asked Breedlove what he was still doing there and reminded him that he had been told to return to his work assignment. Gibson then arrived on the scene. He too admonished Breedlove for leaving his work assignment. After Gibson arrived, Respondent continued his feeding of the inmates on the floor. After he finished feeding the inmates in "C" Wing, Respondent observed that, notwithstanding his and Gibson's prior admonishments, Breedlove was still on the floor. Respondent approached Breedlove and asked him why he had not followed his instructions to leave the floor and return to his work assignment. Breedlove's response was that Beasley had brought him back to the floor. Respondent then went to speak about the matter with Beasley, who was doing paperwork in the control booth on the floor. The control booth is a secure enclosed area situated adjacent to the third floor lobby where the elevators are located. It is constructed of concrete, concrete block, one quarter inch thick polished wire glass and steel mesh. Manning the control booth is a Correctional Aide, who from his vantage point in the front of the booth can look through the glass and observe activity that is taking place in the lobby area of the floor as well as on the corridors of all three wings of the floor. Correctional Aide Harold McCartney was manning the control booth during the 3:00 p.m. to 11:00 p.m. shift on June 26, 1989. Beasley was seated at a desk behind McCartney. Respondent walked up to Beasley and asked her if she had brought Breedlove back up to the floor. Beasley indicated that she had. Respondent and Beasley then discussed the matter further. The discussion resulted in Beasley agreeing to take Breedlove back downstairs to the rear lobby to finish his work assignment. She thereupon retrieved Breedlove. She then walked to the elevators on the floor. Breedlove followed behind her. Correctional Aide Gregory McKenzie was also waiting for an elevator to go downstairs. The elevator stopped and McKenzie and Beasley walked on. Just as Breedlove was about to walk on to the elevator, he uttered, in an irritated tone of voice, some profanity. Respondent heard Breedlove. This was the final straw as far as Respondent was concerned. He believed that Breedlove was no longer deserving of the privilege of being a trustee. Respondent therefore told Breedlove that he was "busted." In jail parlance, "busted" means removed from trustee status. Any correctional officer in the Main Jail has the authority to "bust" a trustee. Respondent ordered Breedlove to get off the elevator and to go to his cell to pack his belongings. Breedlove got off the elevator and appeared to be headed in the direction of his cell in "B" Wing when he stopped, turned around and just stared at Respondent. Respondent reacted by repeating his order that Breedlove go to his cell. Breedlove, however, did not move. Respondent then started walking towards Breedlove. Breedlove then turned his back to Respondent and made an obscene remark directed at Respondent. Given Breedlove's defiance, Respondent reasonably felt that he needed to take control of the situation and physically guide Breedlove to his cell. He thus walked up to Breedlove, who was somewhere between two to eight feet from the front of the control booth, and put his hand on Breedlove's shoulder to lead him to his cell. As Respondent grabbed Breedlove by the shoulder, Breedlove suddenly started to pull away. Respondent followed after Breedlove, grabbing him by the back of his pants while trying to maintain the grasp he had on his shoulder. The struggle ended abruptly when Respondent fell on top of Breedlove and they both went to floor. Before hitting the ground, Breedlove struck his face on one of the glass panels of the control booth, breaking the glass as well as the wires inside the glass. Although it may have appeared otherwise to those who witnessed the incident, Respondent did not intentionally push or shove Breedlove into the control booth glass. The only force that Respondent purposely used against Breedlove was that which was reasonably necessary to overcome Breedlove's physical resistance to Respondent's directives that he return to his cell. Breedlove started to bleed profusely after hitting the glass. Blood was streaming down his face and onto to his shirt. Respondent was more fortunate than Breedlove. He did not come in contact with any glass. He was startled by the breaking of the glass, but uninjured. After falling to the ground, he got off of Breedlove and backed away to regain his composure. He stood by as Beasley rushed to Breedlove's aid. Beasley helped Breedlove to his feet and took him to the jail clinic to receive medical assistance. Although Respondent did not offer any assistance, his help was not needed inasmuch as Beasley had the situation under control. Breedlove suffered multiple lacerations on his right cheek as a result of the incident. At the jail clinic, bandages were wrapped around his face to control the bleeding. Because of the nature of the injury, Breedlove was referred to Jackson Memorial Hospital (hereinafter referred to as "Jackson") for further treatment. At Jackson, Breedlove was seen by a nurse practitioner. A small piece of glass was removed from his right check and he received six stitches. After taking Breedlove to the clinic, Beasley went to the office of the shift commander, Lieutenant Francie D'Erminio, to report what had happened between Respondent and Breedlove. A short time thereafter, Respondent arrived at D'Erminio's office to tell her about the incident. D'Erminio ordered that the matter be investigated. An internal investigation of the incident was conducted. Following the completion of the internal investigation, Respondent was given a 15 day suspension by Metro. Respondent successfully appealed his suspension. He subsequently was promoted to corporal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence insufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character" in violation of Section 943.1395, Florida Statutes, and (2) based upon such a finding, dismissing the Administrative Complaint issued against him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of August, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1993.
The Issue Whether the registration of the Respondent, Betty Lou Haber, license #0034988 should be revoked or suspended, or whether Respondent should be otherwise disciplined.
Findings Of Fact An administrative complaint was filed by the Petitioner, Florida Real Estate Commission, on September 29, 1978, seeking to revoke or suspend or otherwise discipline Respondent Haber. The administrative complaint charged that the licensee was presently confined in a state prison. Respondent requested an administrative hearing. A stipulation was entered by Barry A. Cohen, Esquire, the attorney for Respondent, confirming that Respondent Haber was and had been continuously confined in the Broward Correctional Institution since August 16, 1977. Said stipulation is attached hereto and made a part hereof. Prior to the hearing a letter was received by the Petitioner, Florida Real Estate Commission, advising the Petitioner that Respondent did not intend to proceed to hearing and requesting Petitioner to close the matter. The Division of Administrative Hearings was not so notified. A copy of said letter is attached hereto and made a part hereof. Petitioner presented the aforesaid stipulation and aforesaid letter and a witness at the hearing. The witness, Martha Iglesias, Inmate Records Supervisor for the Broward Correctional Institution, testified that Respondent Haber was an inmate of said institution, having been found guilty by a jury of First Degree Murder in Case #75-518 in the Circuit Court in and for Hillsborough County, Florida, and sentenced to be imprisoned in the State Penitentiary for a period of her natural life.
Recommendation Revoke the non-active salesman license held by the Respondent, Betty Lou Haber. DONE and ORDERED this 18TH day of April, 1979, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Manuel E. Oliver, Esquire 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Barry A. Cohen, Esquire 100 Twiggs Street, Suite 4000 Tampa, Florida 33602 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Based on the stipulations of the parties and on the evidence received at the hearing, I make the following findings of fact. All seven Petitioners are prisoners at Baker Correctional Institution and are subject to the rules of Respondent. Petitioners' Exhibit One, a memorandum of December 29, 1987, was issued by O. J. Phillips, Superintendent of Baker Correctional Institution. By incorporation into Rule 33-3.0045(9), Florida Administrative Code, a new package permit became effective January 1, 1988, but according to the December 29, 1987, memorandum, Baker Correctional Institution would not begin using the new package permit until February 1, 1988. The old and new package permits, Petitioners' Exhibits 2 and 3, respectively, differ somewhat in the quantity and types of items the inmates are permitted to possess. The new package permit also lists a dollar amount limit on the value of each item. As alleged in paragraphs I(1), (3), (5), (7), (8), (9), and (11) of the petition, each Petitioner has property in excess of that provided for on the new package permit. Al Cook, Assistant Superintendent at Baker Correctional Institution, drafted the December 29, 1987, memorandum for O. J. Phillips' signature. The memorandum was the result of a rule change. He was uncertain of the date Baker Correctional Institution received the new rule. Since the new package permit was not available before Christmas, Baker Correctional Institution used the old permit. When the new one arrived, the institution decided to give the inmates a grace period until February 1 before implementing the new permit. The memorandum was to advise everyone of the change. When a proposed rulemaking package is received by Baker Correctional Institution, the Superintendent's secretary copies and distributes the proposed rules for posting on inmate bulletin boards. Mr. Cook believes his institution received the proposed rulemaking package for the rules challenged in this action in August 1987. He saw a document signed by Sergeant Flores, whose responsibility it was to distribute and post the proposed rules, attesting to the fact the challenged proposed rules were posted. According to the State Fire Marshal's codes, prisoners must keep all their personal items in a metal locker. Due to storage limitations at Baker Correctional Institution, inmates can have only one small locker. It is each inmate's choice as to what items he can fit into that locker and what items to mail out to his family. Petitioner Pacheco was a law clerk in the prison library. He did not see the notice of change in rules in the library. He saw the new package permit on the dormitory bulletin board but did not see a proposed rulemaking package. There have been occasions what he has witnessed inmates ripping memorandums off the bulletin boards. Although he has not had any property confiscated, Petitioner Pacheco has excess property. He has funds to mail the items home, but does not feel he should have to do so. Petitioners Smith, Cox, and Estremera did not see any proposed rule changes in the package permit posted on the bulletin boards during the last six months. Petitioner Cox had excess property but mailed it out. Petitioner Estremera has not had any property confiscated. Petitioner Peterssen understands little or no English; he is Spanish- speaking. The memorandum and rules in question were not published or posted in Spanish, and Peterssen became aware of the change only from talking with other Spanish-speaking inmates. Petitioner Cribbs did not see a rule change notice. He had personal and legal items seized from him on February 14, 1988. This is the subject of a pending disciplinary hearing. The reason given for the seizure is that the items seized were not stored in his locker due to lack of room. Petitioner Cribbs has no money to mail his excess property home. Richard Kirkland, formerly the security administrator for Respondent, was involved in changing the package permit. The reasons for the change were fourfold: The Fire Marshal mandated that items in institutions had to be stored in metal lockers. During a year's time, the Department transfers over 27,000 inmates in 15-passenger buses. There is little room in the buses to move personal property. Inmates moving from institutions more liberal in storage space to institutions with less space often have property seized. The change provides uniformity so that inmates and staff will know the property limitations. Without dollar valuations established, the Division of Risk Management had had to pay out what it considered excessive claims for such items as a "gold chain." By establishing dollar value limitations, the state can more fairly assess dollar losses for stolen or missing property. The rule change to establish a fair value, number, and type of acceptable items of personal property was promulgated after a year's work by a committee from around the state. Since four permits are allowed each year, inmates will be able, in most instances, to replace those items that wear out rather quickly. The challenged rules do not address religious or legal materials since those property items are covered by other rules. Additional property for valid medical conditions can be approved by medical staff.
The Issue Whether the Florida Department of Corrections' Rule 33-3.02(6), Florida Administrative Code, Policy and Procedure Directive 4.07.04 and Union Correctional Institution Policy Memoranda Nos. 81-12, 82-68, and 82-69, constitute invalid exercises of delegated legislative authority.
Findings Of Fact Standing of Petitioners Prior to and at the time of hearing, petitioners were substantially affected by the challenged Department rule, directive and memoranda, which establish and implement the Department's requirements that prisoners be clean shaven and their hair be cut properly. Petitioners are subject to both requirements. Prior to January, 1983, each had applied for and received no- shaving passes or exceptions to the clean shaven requirement. Now, however, under the challenged rule, directive and memoranda, further exceptions have been denied them. II. Rule 33-3.02(6), Florida Administrative Code Department Rule 33-3.02 provides, in part: Care of Inmates * * * (6) . . . Inmates shall be required to have their hair cut properly, within good taste, and they must be clean shaven. Sections 944.09 and 945.21, Florida Statutes, cited as the specific statutory authority for this rule, authorize the Department to adopt rules governing the administration of the correctional system, including rules of conduct for inmates. The challenged rule prescribing clean shaven facial hair pertains to the Department's administration of the correctional system, and specifies a rule of conduct for inmates, thus falling within the statutory grant. Petitioners do not argue that the Department lacks authority to regulate the length of inmates' facial hair. Rather, they urge that the rule is invalid because it is all-inclusive and fails to allow exceptions to the clean shaven requirement for medical or religious reasons. There is a minor cutaneous disease, known as pseudofolliculitis barbae. [It is] caused by curved hairs that, when sharpened by shaving, either penetrate the epidermis in an arc through stratum corneum (reentry penetration) or pierce follicular wall (transfollicular penetration) and . . . elicit a foreign body reaction. (P-5) This disease inflicts blacks and is rarely found in whites. It may be accompanied by minor pain, with a few early traumatized papules and papulopustules, and blotchy pigmentation. Once diagnosed, it is essential that the facial hair be allowed to grow, unshaven, over a four to five week period, to a length of approximately one centimeter. This will relieve the symptoms but, upon resumption of shaving, the disease will, in all likelihood, reoccur. (P-5; Testimony of Stone, Holland, Redman, Ridley, Adams) The Department admits that there may be medical reasons which require that an inmate be allowed to have facial hair in excess of what is permitted in the rule. (Department's Response and Memorandum of Law) The Department has also accepted a ruling by the U.S. District Court, Southern District of Florida, (Alexander Harvin v. Louie L. Wainwright, Case No. 82-69-Civ-SMA [attached to Department's Response]), that, upon a doctor's determination, an inmate will be permitted to grow facial hair. And, in actual practice, the Department has granted exceptions (as it did earlier with each petitioner) to the clean shaven rule for medical reasons. 2/ (Department Response) Nonetheless, the challenged rule imposes a blanket requirement that all inmates be clean shaven and fails to allow exception for medical reasons. By so doing, it is arbitrary and capricious in that it lacks a reasonable basis and is unsupported by facts or logic. The evidence is insufficient to establish, however, that the rule's failure to provide an exception for religious reasons is arbitrary or capricious. III. Policy and Procedure Directive 4.07.04 Department PPD 4.07.04, issued August 11, 1977, is entitled "Male Inmate Hairstyles", and applies throughout the state correctional system. It states: Male inmates will be allowed to select their hairstyles within the following guidelines: Hair, including sideburns, will be clean and combed, cut short to medium length and neatly trimmed at all times with no part of the ear or collar covered. Sideburns shall not extend beyond the bottom of the earlobes and will have straight lines with no flare at the base. The face will be clean shaven. Each institution is encouraged to provide photographs or drawings of acceptable hairstyles. The foregoing guidelines are felt to be sufficiently broad to permit a range of additional expression and taste while still meeting the demands of our agency operation as outlined in the Administrative Rules. An inmate's failure to conduct himself within these guidelines will result in disciplinary action. The Department candidly states that the first paragraph of this directive specifies a department-wide policy on what type of hairstyles will be permitted in the various correctional institutions; "accepts the contention of Petitioners that said policy should be adopted as a rule"; (Department's Response, p. 5), and promises to initiate rulemaking as soon as possible. This is deemed an admission by the Department that this part of PPD 4.07.04 is an illicit rule. But that part of the first paragraph which requires that inmates' faces be clean shaven is simply a restatement of the requirement already imposed by Rule 33-3.02(6). Assuming the continuing validity of that rule, the restatement would not, in and of itself, create rights, require compliance, or adversely affect the rights of others. However, since that portion of Rule 33- 3.02(6) is, by this order, invalidated, the corresponding requirement in PPD- 4.07.04 is a statement of general applicability which purports, in and of itself, to create rights of and adversely affect others; it allows subordinates no discretion in implementation and is virtually self-executing. Paragraph two of the directive states that an inmate's failure to comply with these "guidelines" will result in disciplinary action. Such language lends support to the conclusion that the requirements of paragraph one are intended to be mandatory, and self-enforcing; and that compliance is required. UCIPM 81-12 IV. UCIPM 81-12, 82-68 and 82-69 Union Correctional Institution Policy Memorandum 81-12, entitled "Inmate Program Planning" and issued on April 20, 1970, is a broad policy statement describing institutional goals, staff responsibilities, and inmate program planning at Union Correctional Institution. It does not purport, in and of itself, to create rights or affect others. Neither does it require compliance or otherwise purport to have the direct and consistent effect of law. Its purpose is to define goals and assign program planning responsibilities to staff members at Union Correctional Institution. UCIPM 82-68 UCIPM 82-68, entitled "Forced Shaving," was issued by the Superintendent of Union Correctional Institution on December 15, 1976. One of its stated purposes is to instruct staff on the procedure to be followed when an inmate refuses to comply with the "clean shaven" requirement. With the exception of one paragraph 82-68.2, it does not, in and of itself, purport to create rights or adversely affect others, require compliance, or otherwise have the direct and consistent effect of law. Moreover, it frequently commits the exercise of judgment and discretion to staff. (P-6) For example, paragraph 82-68.3 requires staff members to follow these procedures when they observe an inmate out of compliance with the clean shaven requirement: (1) Advise inmate that he is not in compliance, instruct him to shave within a reasonable period of time, and advise him that his refusal will result in further staff action to insure compliance; (2) Upon his refusal to shave after counseling, initiate a disciplinary report; (3) If he is found guilty during disciplinary report procedures and still refuses to shave, notify the Superintendent or Assistant Superintendent. (P-6) Paragraph 82-68.4 provides that, when notified of an inmate's refusal to shave, the Superintendent or Assistant Superintendent will: (1) Counsel the inmate and reasonably attempt to persuade him to follow instructions; (2) Confirm that he is not exempt for medical reasons; (3) Order the Correctional Officer Chief IV or Shift Lieutenant to use the minimum amount of force necessary to shave the inmate. (P-6) Paragraphs 82-68.5, 82-68.6, and 82-68.7 provide further detailed guidance in applying the minimum force necessary to carry out the shaving order. (P-6) These paragraphs, which provide procedures for forced shaving, are nothing more than instructions to staff on applying minimal force against inmates in the context of a refusal to shave. Rule 33-3.066(1), entitled "Use of Force," already expressly authorizes the application of force to an inmate in an amount and type which reasonably appears necessary to accomplish the authorized objective. Paragraph 82-68.2, however, expressly exempts one category of inmates from the forced shaving requirements--those who have received medical authorization because of a skin condition. This is a Department statement of general applicability--applying throughout Union Correctional Institution-- which prescribes policy and purports, in and of itself, to confer rights or affect the rights of others. It is unequivocal, self-executing, and allows no discretion in its implementation. UCIPM 82-69 UCIPM 82-69, entitled "Administrative Confinement--Policy and Procedures" was issued by the Superintendent of Union Correctional Institution on September 13, 1982. Its stated purpose is to establish criteria, policy, and procedures for the placement of inmates in administrative confinement status. That portion of the memorandum relating to inmate shaving and haircuts is found in paragraphs 82-69.7 I. and J.: 82-69.7 Policies, Rules and Procedures applicable to all Inmates in Administrative Confinement * * * Showering and Shaving: Each inmate in Administrative Confinement will be required to shower and shave three times each week. The only exception will be in those instances where, for treatment of acute medical problems, a doctor has authorized an inmate in writing to not shower or shave for a specific period of time. Inmates exempted from shaving by a doctor will be required to remove facial hair on a regular basis by close cutting with scissors or barber clippers. J. Haircuts: Inmates in Administrative Confinement will be required to obtain haircuts as necessary to meet regulations of the Department. Paragraph I., above, requires, in part, that inmates in administrative confinement shower and shave three times each week. This requirement is nothing more than a restatement of Rule 33-3.081(12)(b)1, Florida Administrative Code. It thus does not, in and of itself, confer rights, affect others, or require compliance. However, that part of paragraph I. which grants, an exemption to the showering and shaving requirement (for medical reasons) does prescribe policy and purports, in and of itself, to confer rights and affect others; it is self-executing, allows subordinates no discretion in implementation, and requires compliance. Paragraph J., above, simply requires inmates in administrative confinement to obtain haircuts in compliance with the Department's regulations. As such, it imposes no additional requirement; neither does it in and of itself, create rights, affect others, or require compliance.
