The Issue Whether Respondent violated chapter 440, Florida Statutes (2016), by failing to secure payment of workers’ compensation coverage, as alleged in the Stop-Work Order for Specific Worksite Only (“SWO”) and Amended Order of Penalty Assessment (“AOPA”); and, if so, whether Petitioner correctly calculated the proposed penalty assessment against Respondent.
Findings Of Fact Background The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. The Department is the agency responsible for conducting random inspections of jobsites and investigating complaints concerning potential violations of workers’ compensation rules. Allstate is a corporation engaged in business in the State of Florida. Allstate was organized on May 23, 2005. Edgar A. Ezelle is the president and registered owner of Allstate. The address of record for Allstate is 8217 Firetower Road, Jacksonville, Florida 32210. In March 2017, Respondent was hired as the general contractor to renovate a hotel at a jobsite located at 3050 Reedy Creek Boulevard. When Respondent accepted the project, Prestige Handyworkers, LLC (“Prestige”), a subcontractor, was working on the jobsite. Although Prestige was hired by the previous general contractor, Respondent continued to work with Prestige. On June 15, 2017, the Department’s investigator, Kirk Glover, conducted a routine visit to the jobsite to conduct a compliance investigation. Mr. Glover observed six individuals performing construction-related work at the site. Mr. Glover conducted an interview of the individuals and took notes during the course of his interviews. Mr. Glover identified the individuals as: Luis Miguel Paz; Joseph A. Pizzuli; Roger Penley, Jr.; Georgios Rapanakis; Stavros Georgios Rapanakis; and Joseph Youngs. The six individuals were employed by subcontractor Prestige to perform work on behalf of Allstate. Luis Miguel Paz, Joseph A. Pizzuli, and Roger Penley, Jr., were engaged in painting work; Georgios Rapanakis and Stavros Georgios Rapanakis were supervising the other workers; and Joseph Youngs was engaged in cleanup of the construction site. The workers did not testify at the final hearing. Mr. Glover then contacted Allstate president, Edward Ezelle, who confirmed he was the general contractor for the jobsite and that he retained Prestige as the subcontractor for the site. Mr. Glover conducted a search of the Department’s Coverage and Compliance Automated System (“CCAS”), which revealed that Respondent did not have active workers’ compensation coverage for Prestige or its employees. Prestige did not have workers’ compensation coverage for its employees. The search of CCAS revealed that Mr. Ezelle had an active workers’ compensation coverage exemption, effective July 27, 2015, through July 26, 2017. Based on the results of his investigation, on June 16, 2017, Mr. Glover issued an SWO to Allstate for failure to maintain workers’ compensation coverage for its employees. On June 19, 2017, Mr. Glover hand-served a Request for Production of Business Records for Penalty Assessment Calculations (“Records Request”). The Records Request directed Respondent to produce business records for the time period of June 16, 2015, through June 15, 2017. Respondent did not provide any business records to the Department. Mr. Ezelle testified that Allstate did not conduct business in Florida for the period of September 2016 through March 2017. While the undersigned has no reason to doubt Mr. Ezelle’s testimony that his business was not active during that time period, Respondent failed to produce records in response to the Records Request to support his testimony. Penalty Assessment To calculate the penalty assessment, the Department uses a two-year auditing period looking back from the date of the SWO, June 16, 2017, also known as the look-back period. Generally, the Department uses business records to calculate the penalty assessment. If the employer does not produce records sufficient to determine payroll for employees, the Department uses the imputed payroll to assess the penalty as required by section 440.107(7)(e) and Florida Administrative Code Rule 69L-6.028. Eunika Jackson, a Department penalty auditor, was assigned to calculate the penalty assessment for Respondent. Based upon Mr. Glover’s observations at the jobsite on June 16, 2017, Ms. Jackson assigned National Council on Compensation Insurance (“NCCI”) classification code 5474 to calculate the penalty. Classification code 5474 applies to work involving painting. Ms. Jackson applied the approved manual rates for classification 5474 for each of the six individuals working on the jobsite. The application of the rates was utilized by the methodology specified in section 440.107(7)(d)1. and rule 69L- 6.027 to determine the penalty assessment. The manual rate applied in this case was $11.05 for the period of June 16, 2015, through December 31, 2015; and $11.02 for the period of January 1, 2016, through June 15, 2017. The statewide average weekly wage, effective January 1, 2017, was used to calculate the penalty assessment. Georgios Rapanakis and Starvos Georgios Rapanakis had a workers’ compensation exemption for the period of June 16, 2015, through June 10, 2016. However, they were not covered by an exemption from June 11, 2016, through June 15, 2017. Although Mr. Ezelle has an exemption, his exemption was not in effect for a short period of July 19, 2015, through July 26, 2015. None of the other employees had an exemption. Based upon the Department’s calculation, the penalty assessment for the imputed payroll would be $153,908.20. On November 17, 2017, the Department filed a Motion for Leave to Amend Order of Penalty Assessment (“Motion for Leave to Amend”). The Department sought leave from the undersigned to amend the penalty assessment. The Department, as a party, is not authorized to amend a penalty without leave from the undersigned after the matter was filed with the Division. See § 120.569(2)(a) and Fla. Admin. Code R. 28-106.202. Despite the AOPA reflecting an issued date of July 14, 2017, the record supports a finding that the AOPA was issued November 17, 2017, the date the undersigned granted the Department’s Motion for Leave to Amend. Thus, the Department issued the AOPA for the imputed payroll 105 business days after Respondent received the Records Request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order as follows: finding that Respondent failed to secure and maintain workers’ compensation coverage for its subcontractors; and dismissing the Amended Order of Penalty Assessment against Respondent. DONE AND ENTERED this 26th day of January, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 26th day of January, 2018. COPIES FURNISHED: Christina Pumphrey, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Edgar Ezelle Allstate Custom Contracting, Inc. 8217 Firetower Road Jacksonville, Florida 32210 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue Did Respondent commit the offense alleged in the Administrative Complaint and, if so, should Respondent's Correction Certificate No. 101468 be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent Beverly A. Morris was a certified correctional officer, having been certified by the Criminal Justice Standards Training Commission on October 13, 1986, and issued Correctional Certificate No. 101468. At all times material to this proceeding, Respondent was employed by the DeSoto Correctional Institution. On October 20, 1996, Respondent was assigned as supervisor in "A" Dormitory at the DeSoto Correctional Institution. On October 20, 1996, Inmate Richard Lloyd was assigned to, and a resident of, "H" Dormitory at the DeSoto Correctional Institution. At all times material to this proceeding, Correctional Officer Mark McFry was employed in security with the DeSoto Correctional Institution. On October 20, 1996, Officer McFry was assigned to east side patrol on the perimeter road. On October 20, 1996, between the hours of 6:00 p.m. and 7:30 p.m., Officer McFry observed Respondent with Inmate Richard Lloyd. During this same period of time, Officer McFry also observed Respondent repeatedly touch Inmate Richard Lloyd by rubbing her hand on his stomach, chest, and back. Officer McFry did not report the incident immediately but waited until October 25, 1996, some five days later to report the incident. At all times material to this proceeding, Officer Richard Wuest was employed in security with the DeSoto Correctional Institution. On October 20, 1996, Officer Wuest was assigned to west side patrol on the perimeter road. On October 20, 1996, between the hours of 6:00 p.m. and 7:30 p.m., Officer Wuest observed Respondent with Inmate Richard Lloyd. During this same period of time on October 20, 1996, Officer Wuest also observed Respondent repeatedly touch Inmate Lloyd by rubbing her hand on his stomach, chest, and back. Officer Wuest did not report the incident but was named as a witness in Officer McFry's report. There is insufficient evidence to show that Respondent advised Inmate Lloyd that she was not going to take a polygraph, notwithstanding the testimony of Darron Duval which I find lacks credibility. Subsequent to this incident, Inmate Lloyd was transferred from DeSoto Correction Institution to Hardee Correctional Institution. Respondent wrote Inmate Lloyd a letter dated July 7, 1997, and enclosed a photograph of herself and her daughter which was intercepted by the officials at Hardee Correctional Institution. There was no evidence that any other prior violation had been committed by the Respondent or that any other prior disciplinary action had been taken against the Respondent by the Commission. There was no evidence presented as to what, if any, disciplinary action had been taken against the Respondent for this incident by the DeSoto Correctional Institution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of the aggravating and mitigating circumstances set out in Rule 11B-27.005(6), Florida Administrative Code, it is recommended that the Commission suspend Respondent's Correctional Certificate No. 101468 for a period of one year and, upon being reinstated, that Respondent be placed on probationary status for a period of six months subject to terms and conditions imposed by the Commission. DONE AND ENTERED this 15th day of May, 1998, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1998. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Karen D. Simmons Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Beverly A. Morris 1811 Southwest Hendry Street Arcadia, Florida 34266
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent was certified by the Criminal Justice Standards and Training Commission on February 11, 1983, and issued certificate number 19-82-502-08, which he still holds. For approximately the past eight years, Respondent has been employed by the Metro-Dade County Department of Corrections and Rehabilitation (Department). During the first six years of his employment with the Department, he held the position of Correctional Officer I. His duties as a Correctional Officer I included supervising crews of inmates performing lawn maintenance work on public grounds outside the correctional facility in which they were housed. One of Respondent's supervisors was Jerry Meese, the Director of the Department's Operations Division. On September 26, 1986, while returning to his office from a lunchtime excursion, Meese observed a Department truck used to transport inmate work crews parked outside a private residence. The truck's presence in the residential area aroused Meese's suspicion. He therefore stopped to investigate. He soon discovered that Respondent and some inmates were in the area. One of the inmates was found to have some chewing gum in his possession. The inmate told Meese that Respondent had given him money to purchase the gum at a nearby store. A short walking distance from where Meese had encountered the inmate was a bag containing seven containers of beer. The containers were cold to the touch. Meese went to the store to which the inmate had referred and spoke to the store clerk. The store clerk advised Meese that the inmate, a short time before, had bought the beer that Meese had found in the bag. Meese discussed the matter with Respondent. It appeared to Meese that Respondent's speech was slurred and that his eyes were red. Upon his return to the office, Meese was provided with statements from inmates supervised by Respondent in which the inmates indicated that they had drank beer and smoked marijuana with Respondent. Shortly thereafter Meese learned that the inmates had tested positive for drugs. The Department had a policy which required a correctional officer to submit to drug testing if there existed a reasonable suspicion that the officer was involved in the illicit use of drugs. Based upon what had occurred that afternoon, Meese justifiably believed that he had grounds to invoke this policy and he therefore directed Respondent to submit to a drug test. He gave Respondent until Monday, September 29, 1986, to take the test. On September 29, 1986, prior to submitting to the test, Respondent was interviewed by Robert Sobel, an investigator with the Department's Internal Affairs Unit. Respondent freely admitted to Sobel that he "smok[ed] marijuana on a regular basis" and that he "would like to enroll in a program to overcome this problem." Later that day, at 3:10 p.m., in compliance with Meese's directive, Respondent went to the Consulab facility at the Cedars Medical Center in Miami and gave a urine specimen. The sample was screened by the use of an enzyme immunoassay testing procedure. The screening test was performed twice. On both occasions, the sample tested presumptively positive for cocaine and marijuana. The sample was then subjected to confirmatory testing. The thin layer chromatography (TLC) method was used. When performed by a competent technologist, TLC testing is accurate 95 to 99 percent of the time. The two technologists who tested Respondent's urine sample using the TLC method were highly competent. Their tests, which were completed at about 4:50 p.m., revealed the presence of cocaine metabolites 1/ and cannabinoids (marijuana). 15. The tests were accurate. Respondent had knowingly used cocaine and marijuana on or about the date of the testing. Notwithstanding the results of the testing, Respondent was not terminated by the Department. Instead, he was suspended. As a condition of continued employment, he was required to participate in a drug rehabilitation program and to remain drug-free. Respondent has met these requirements to the satisfaction of the Department. Not only has Respondent remained in the employ of the Department, he how occupies the position of corporal, a supervisory position to which he was promoted approximately two years ago. His post-September, 1986, employment record reveals that he has taken full advantage of the opportunity given him by the Department to rehabilitate himself.
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 Respondent guilty of having failed to maintain "good moral character" in violation of Section 943.1395(5), Florida Statutes, by virtue of his unlawful use of cocaine and marijuana on or about September 26, 1986; and (2) based upon such a finding, (a) suspend Respondent's certification for 30 days, (b) place Respondent on probation for a period of two years to commence upon the expiration of this 30-day suspension, and (c) include among the terms and conditions of his probation the requirements that Respondent submit to scheduled and monthly drug testing and that he agree to release the results of such testing to the Commission or its designee. DONE and ORDERED in Tallahassee, Leon County, Florida, this 30th day of May 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 30th day of May 1990.
Findings Of Fact Petitioners and Respondent have stipulated to the following facts: The three petitioners are inmates at Union Correctional Institution, Raiford, Florida, in the custody of the Department of Corrections. All three of the petitioners have had their PPRD's established by the respondent-commission as follows: In June of 1982, Mr. Piccirillo's PPRD was established by the commission to be September 30, 1986. In January of 1982, Mr. Adams' PPRD was established by the commission to be November 11, 1991. In December of 1982, petitioner Hemming's PPRD was established by the commission to be September 29, 1993. Subsequent to the commission having established their PPRD's, all three of the petitioners have been transferred from one Florida penal institution to another state institution as follows: Mr. Piccirillo was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1982. Mr. Adams was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1932. Mr. Hemming was transferred from Avon Park Correctional Institution to Union Correctional Institution on February 16, 1983. The petitioners were not transferred to Union Correctional Institution because of any unsatisfactory institutional conduct at their former institutions. Petitioners are currently scheduled by the commission for biennial interviews to review their established PPRD's as follows: Mr. Piccirillo is scheduled for a biennial interview in March of 1984. Mr. Adams is scheduled for a biennial interview in October of 1983. Mr. Hemming is scheduled for a biennial interview in September of 1984. The following additional findings are made from evidence presented at the hearing: The respondent-commission has not made a finding that any of the petitioner's institutional conduct has been unsatisfactory under the challenged rule nor has respondent extended their PPRD's or refused to authorize their EPRD's. In applying the challenged rule, the fact that an inmate has been transferred to a higher custody or higher level institution is only considered to be unsatisfactory institutional conduct where the commission receives documentation evidencing institutional misconduct as the basis for the transfer. Petitioners transfers from other institutions to Union Correctional Institution would not be considered unsatisfactory institutional conduct under the challenged rule because there is no documentation of institutional misconduct which led to these institutional transfers.
Findings Of Fact 10. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on February 17, 2009, the Amended Order of Penalty Assessment issued on May 19, 2009, and the 2nd Amended Order of Penalty Assessment issued on June 5, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Findings Of Fact Accepted. Accepted in substance. Accepted but is more Conclusion of Law than Finding of Fact. Accepted. Conclusion of Law and not Finding of Fact. Conclusion of Law and not Finding of Fact. Accepted. COPIES FURNISHED: James L. Frederick Douglas L. Adams Union Correctional Institution P. O. Box 221 Raiford, Florida Julia Forrester Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Louis A. Vargas General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Ms. Liz Cloud Administrative Code Bureau Department of State Room 1802 The Capitol Tallahassee, Florida 32301 Carroll Webb, Exec. Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301
The Issue Whether grievance procedures set forth in the provisions challenged are arbitrary and capricious and an abuse of respondent's discretion? Whether the policy and procedure directive and policy memorandum should be declared invalid as rules?
Findings Of Fact At the various institutions in which respondent houses some 29,000 prisoners, about 8,000 grievances are acted on annually. In addition, departmental personnel in Tallahassee decide 2,000 grievances annually, of which all but two or three hundred are appeals. Nineteen percent of departmental decisions on the merits of grievances are in favor of the inmate. Not every grievance has been handled in strict adherence to every particular of rule, policy directive and policy memorandum, nor are the requirements these documents lay down always identical. The hearing officer ruled that the merits of any specific grievance proceeding were not relevant. On one occasion, the correctional officer complained of in a grievance was the officer to whom investigation of the grievance was assigned. At Union Correctional Institution, Dan Williams deals with 200 to 250 grievances monthly, turning back grievances that are not signed, dated or concise, or which do not reflect resort to informal measures. Occasionally, Mr. Williams drafts a preliminary response on the merits or "combine[s] . . . [an investigative] report . . . with the directives and the institutional operating procedures and, based on a collection of those two, . . . draft[s] a preliminary response." (T. 189.) Ordinarily, a superior signs the responses Mr. Williams drafts. Petitioners are inmates at Union Correctional Institution. Joe Lewis Holland and Douglas L. Adams had grievances pending at the time of the hearing. Carl Cribbs and John Russell have filed grievances in the past, but the evidence did not show them to have filed any grievance not already disposed of. Petitioner Rufu did not testify at hearing. Petitioners do not complain of the procedures attending promulgation of Rule 33-3.07, Florida Administrative Code, which provides: Inmate Grievance Procedure. The purpose of this procedure is to provide an inmate with a channel for the administrative settlement of the legitimate grievance. A grievance is a formal complaint concerning an incident, policy, or condition with the institution or the Department of Corrections. Most valid grievances can be resolved quickly through direct contact with the staff of the institution who are responsible for the particular area of the problem. Inmates should he encouraged to use routine informal remedies prior to initiating a formal grievance. However, when an inmate feels he has sufficient reason to submit an official formal grievance, he should obtain a copy of the request form for administrative remedy or appeal; all facts should be listed accordingly. Only one grievance per form can be initiated. The grievance complaint must be filed no later than 30 calendar days from the date on which the basis of the complaint occurred, unless it is clearly demonstrated by the inmate that it was not feasible to file within such a period. The Assistant Superintendent of the institution will have the grievance complaint logged and will have a receipt sent to the inmate. He may handle the grievance personally or he may designate appropriate staff members to investigate and/or respond. If a staff member investigates and responds, he too will sign the form along with the Assistant Superintendent. The response should state clearly why the grievance is approved or disapproved. If approved, it should state what action will be taken to correct the problem. One copy will be placed in the inmate file and two copies will be returned to the inmate advising of action taken. When an inmate feels that he may be adversely affected by submission of his grievance at the institutional leval because of its sensitive nature he may mail his grievance directly to the Secretary. He must clearly indicate a valid reason for not initially bringing his complaint to the attention of the institutional staff. Grievances of this type may be sealed in an envelope by the inmate and processed through routine institutional mail channels. Institutional officials will have up to 30 days, including holidays and weekends from the receipt of the grievance to take action and respond to the inmate. When the grievance is, in the opinion of the Assistant Superintendent, of an emergency nature, a reply should be made as soon as possible. If the inmate feels his or her grievance has not been satisfactorily resolved at the institutional level, he or she may appeal to the Secretary. If the inmate files a formal grievance form to the Secretary the factual basis for appeal must be clearly stated in Part A and a copy of the original grievance and response at the institutional level attached. If the inmate fails to provide a reason for appeal or attach a copy of his institutional grievance and response or the Secretary feels that the reason supplied is not adequate, the appeal must be returned to the inmate and reasons for return will be specified in Part B. The Secretary or his designated representative will have a receipt sent to the inmate. He will cause the appeal to be investigated and will have up to 30 days, including weekends and holidays from receipt of the appeal form to make a response. A copy of the response to the inmate will be sent to the superintendent and a copy filed in the Central Office. The Superintendent's copy will be reviewed and filed in the Institution. The time limit cannot be met either at the institutional or departmental level, the time limit may be extended for a reasonable period not to exceed thirty (30) days. If this action is taken the complainant will be notified in writing with the time of extension noted. A record must be made of each grievance or appeal and should contain at least the following information: Inmate name, prison number, date of receipt, subject of grievance or appeal, disposition of the grievance or appeal, and date of disposition. A copy of this record should be filed monthly in the Superintendent's or the Secretary's office. Inmates can be assured that no action will be taken against them resulting from submitting a grievance unless they knowingly and intentionally make a statement which is proved false pursuant to a disciplinary proceeding. They contend that the rule does not afford a neutral, detached factfinder, and is arbitrary and capricious for that and other reasons. On the same substantive grounds, and on the additional ground that neither was promulgated as a rule, petitioners challenge Policy and Procedure Directive 4.07.02 (PPD 4.07.02) and Union Correctional Institution Policy Memorandum 82-14 (UCI Memo 82-14) which provide: Inmate Grievance Procedure Authority: The provisions of this directive are authorized by: Florida Statutes, Chapters 944.09(2) and 945.21. Rules and Regulations of the Department of Offender Rehabilitation, Chapter 33-3.07. General Policy Statement: The purpose of this procedure is to provide an inmate with a channel for the administrative settlement of a legitimate grievance. A grievance is a formal complaint concerning an incident, policy or condition within an institution or the Department. Most valid grievances can be resolved quickly through direct contact with staff who are responsible in the particular area of the problem. This is the preferred course of action. Staff awareness of the importance of prompt attention and reply to these routine requests will minimize the use of formal grievance procedures. In addition to providing the inmate an opportunity of having a grievance heard, such procedure will assist the Department by providing additional means for internal solution of problems and improve lines of communication. This procedure will also provide a written record in the event of subsequent judicial or administrative review. Informal Remedy: In most cases an inmate may resolve the problem by discussing it with: The staff member responsible in the particular area of the problem. The Classification Team. The appropriate section head. Other institutional staff. This method should provide an immediate solution to the problem and can be handled by personal contact, letter or request for interview. An inmate should be encouraged to use routine informal remedy procedures prior to initiating a formal grievance. Formal Institutional Remedy: The Superintendent may designate the Assistant Superintendent as representative, delegating the authority to receive, review and investigate any grievance of an institutional nature, and to grant and implement relief as approved by the Superintendent. When an inmate has reason to submit an official grievance, a copy of the Request for Administrative Remedy, Form DC-77 (See Sample No. 1) may be obtained from the staff member designated by the Superintendent. The inmate should fill out the identifying data at the top and Part A of the request so that it is legible. All facts should be listed accurately and the aggrieved inmate is requested to substantiate that the informal remedy procedures have been exhausted as stated in the Section above on Informal Remedy. Inmates who cannot read or write or who cannot write legibly are authorized to obtain assistance from other inmates, so long as the assistance requested does not interfere with the security and good order of the institution. In cases where inmate assistance is either not available or cannot be made available, staff members will assist the inmate. Only one issue/question should be listed on each form. The form should then be forwarded to the Superintendent or Assistant Superintendent. Time Limit On Filing A Grievance: The grievance must be filed no later than 30 calendar days from the date on which the grievous complaint occurred or within 30 calendar days after final action was decided which would result in a grievance complaint being initiated. An extension of the 30-day period may be granted when it is clearly demonstrated by the inmate to the satisfaction of the Superintendent or Assistant Superintendent that it was not feasible to file within the initial period. Appeals must be filed within 30 calendar days following the date of disposition of the original institutional grievance. Procedures For Processing Grievance: The Superintendent or Assistant Superintendent will have the grievance logged and will have a receipt sent to the inmate. The Superintendent or Assistant Superintendent may investigate the grievance personally or may designate an appropriate staff member to investigate and prepare a report. The Superintendent or Assistant Superintendent will evaluate the investigative report for use in formal consideration of the grievance. The Superintendent or Assistant Superintendent will respond to the grievance by completing Part B of Form DC-77. If approved, the response should state what action will be taken to correct the problem. If denied, the response must state the reasons for denial and the information to justify the denial. Distribution will be as follows: The original and second copy will be returned to the inmate. The first copy will be placed in the inmate record. All grievances, except those filed directly with the Regional Director or Secretary, must be filed at the institution in which the inmate is presently assigned. When the complaint deals with a grievance that has occurred at another location, it will remain the responsibility of the staff at the inmate's present location to handle the grievance. Direct contact with staff at the inmate's prior location may he necessary in resolving the grievance. Direct Grievance Request: When an inmate feels that because of the sensitive nature or possible adversity by submission of the grievance at the institution, direct submission to the Regional Director or Secretary may be accomplished by use of Form DC-77-A (See Sample No. 2). The inmate may mail in sealed envelope the direct grievance request. The inmate must clearly indicate the reason for not initially bringing the complaint to the attention of the institution staff. Upon receipt of the direct grievance report, the Regional Director, Secretary or designee will have the grievance logged and a receipt sent to the inmate. If the Regional Director, Secretary or designee feels that the inmate's reason for not processing the complaint through institutional channels is invalid, Form DC-77-A will be returned to the inmate, with the reasons for return specified in Part B. Should it be determined that the grievance was properly channeled to the Regional Director or Secretary, the complaint will then be investigated and Part B of Form DC-77-A will be completed. If approved, the response should state what action will be taken to correct the problem. If denied, the response must state the reasons for denial and the information to justify the denial. Distribution will be as follows: Original to inmate. First copy of the response will be filed in the Office of Use Regional Director or the Office of the Secretary. Second copy will be forwarded to the Superintendent for review and subsequent filing in the institutional inmate record. Time Limit For Response: Response to grievance will be made within 30 calendar days from date of receipt. When, in the opinion of the Superintendent or Assistant Superintendent, Regional Director or Secretary the grievance is of an emergency nature, a reply should be made as soon as possible. Formal Department Level Appeal: If the inmate feels the grievance has not been satisfactorily resolved at the institution level, an appeal, Form DC-77-A, may be submitted to the Regional Director or Secretary. In such cases, the factual basis for the appeal must be clearly stated in Part A and a copy of Form DC-77 (the original grievance and response at the institutional level) must be attached. Appeals should be forwarded to the Regional Director or Secretary through routine institutional mail channels. If the inmate does not provide substantial reason for appeal or attach a copy of the original grievance and response (Form DC-77) and the Regional Director or Secretary determines that the reason lacks support, the appeal request will be returned to the inmate and findings for return will be specified in Part B. Action By The Regional Director Or Secretary: The Regional Director, Secretary or designee will have a record made of all Form DC-77-A (grievance appeals) received and will have a receipt sent to the inmate. The appeal will be investigated within 30 calendar days from receipt of the appeal. Distribution will be as follows: The original will be returned to the inmate. The first copy will be placed in the inmate record in the Bureau of Offender Records with a copy of Form DC-77 attached. The second copy will be sent to the Superintendent for review and subsequent filing in the institutional inmate record. When Time Limit Cannot Be Met: The period of time referred to for action at the institution, Region or Central Office level may be extended for a reasonable period not to exceed 30 days, upon finding that the circumstances are such that the initial period is insufficient to make an appropriate decision. This action must be communicated in writing to the inmate with the time of the extension noted. Record Keeping As previously stated, a record should be made of each grievance or appeal and should contain at least the following information: Inmate name Prison number Date the grievance was filed Date received Nature of grievance or appeal and issue/question to be resolved Disposition of grievance or appeal Date of disposition A copy of this record, Form DC-78 (See Sample No. 3), should be filed monthly in the Superintendent's, Regional Director's or Secretary's office. Freedom To Use Grievance Procedure: Inmates can be assured that no action will be taken against them resulting from submission of a grievance, unless, facts show acts designed to render false or misleading statements. Policy and Procedure Directive 4.07.02. 82-14.1 Authority Florida Statutes, Chapter 944.09, 945.21 Department of Corrections Policy & Procedure Directive 4.07.02. 82-14.2 Purpose The purpose of this procedure is to provide an inmate with a channel for the administrative settlement of a legitimate grievance. A grievance is a formal complaint concerning an incident, policy or condition within an institution or the Department of Corrections. Most valid grievances can be resolved quickly through direct contact with staff who are responsible in the particular area of the problem. This is the preferred course of action. Staff awareness of the importance of prompt attention and reply to these routine requests will minimize the use of formal grievance procedures. In addition to providing the inmate an opportunity of having this grievance heard, such a procedure assists the Administration by providing an additional vehicle for internal solution of problems and improves lines of communication. Further, it provides a written record in the event of subsequent judicial or administrative review. 82-14.3 Informal Remedy In most cases, an inmate may resolve his problem by discussing it with (1) the staff member responsible in the particular area of the problem; (2) his Treatment Team; (3) the appropriate Department Head; or (4) other institutional staff. This method should provide an immediate resolution to the problem and can be handled by personal contact, letter, request for interview form, et cetera. An inmate should be encouraged to use the informal remedy procedures prior to initiating a formal grievance. 82-14.4 Formal Institutional Remedy The Assistant Superintendents shall have the authority to receive, review, and investigate any grievance of an institutional nature and to grant and implement relief as approved by the Superintendent. When an inmate feels he has reason to submit an official grievance, he should obtain a copy of the Request for Administrative Remedy Form (DC 1-303) from the appropriate Classification Team Specialist or the Law Librarian. He should check the box marked "Assistant Superintendent" and fill out the identifying data at the top of the form and Part A of the request (DC 1-303) so that it is readable. All facts should be listed accurately, and the aggrieved inmate is directed to substantiate that the informal remedy procedures have been exhausted as stated in Section 82-14.3 above. Only one grievance per form can be initiated. The grievance is to be filed by one individual inmate with his signature only appearing on the grievance. The DC 1-303 then should be forwarded to the Assistant Superintendents' Office. Grievances submitted or signed by more than one inmate will be returned unanswered to the senders as being improperly filled out. Inmates who cannot read or write, or who cannot write legible, are authorized to obtain assistance from other inmates, so long as the assistance requested does not interfere with the security and good order of the institution. In cases where inmate assistance is either not available or cannot be made available, staff members will assist the inmate. 82-14.5 Time Limit on Filing Complaint The grievance must be filed no later than 30 calendar days from the date on which the grievous complaint occurred or within 30 calendar days after final action was decided which would result in a grievance complaint being initiated. An extension of the 30-day period may be granted when it is clearly demonstrated by the inmate to the satisfaction of the Assistant Superintendents that it was not feasible to file within the initial period. Appeals must be filed within 30 calendar days following the date of disposition of the original institutional grievance. 82-14.6 Procedures for Processing Grievance The Assistant Superintendents will have the grievance logged and will have a receipt sent to the inmate. They may investigate the grievance personally, or may designate an appropriate staff member to investigate and prepare a report for use in formal consideration of the grievance. The Assistant Superintendents will respond to the grievance (Part B), clearly stating why the grievance is approved or denied. If approved, the response should state what action will be taken to correct the problem. If denied, the response must state the reasons for denial and the information to justify denial. The first copy will he place in the inmate file, and the original and second copy will be returned to the inmate. All grievances, except those filed directly with the Regional Director or Secretary, must be filed with staff at the institution to which the inmate is presently assigned. When the complaint deals with a grievance that has occurred at another location, it will remain the responsibility of the staff at the inmate's present location to handle the grievance. Direct contact with staff at the inmate's prior location may be necessary to resolve grievances which occur under this provision. When an inmate feels that because of its sensitive nature he may be adversely affected by submission of his grievance at the institution level, he may, by checking the box marked "Secretary, Florida Department of Corrections" on Form DC 1-303, submit his grievance directly to the Regional Director or Secretary in a sealed envelope processed through routine institutional mail channels. He must clearly indicate a valid reason for not initially bringing his complaint to the attention of the institution staff. Upon receipt of Form DC 1-303 the Regional Director, Secretary, or his designee will have the grievance logged in and a receipt sent to the inmate. If the Regional Director, Secretary, or his designee feels that the inmate's reason for not processing his complaint through institutional channels is invalid, Form DC 1-303 will be returned to the inmate, with the reasons for return specified in Part B. Should it be determined that the grievance was properly channeled to the Regional Director or Secretary, the complaint will then be investigated and the original of Form DC 1-303, with appropriate response (Part B), will be forwarded to the inmate. The first copy of the response will be filed in the office of the Regional Director or the office of the Secretary; the second copy forwarded to the Superintendent for his review and subsequent filing in the institutional inmate file. 82-14.7 Time Limit for Response Responses to grievances will be made within 30 calendar days from date of receipt. When in the opinion of the Assistant Superintendents, Regional Director, or Secretary, the grievance is of an emergency nature, a reply should be made as soon as possible. 82-14.8 Formal Department Level Appeal If the inmate feels his grievance has not been satisfactorily resolved at the institutional level, he may appeal, using Form DC 1-303, checking the appropriate box and submitting his appeal to the Regional Director, Secretary or designee. In such cases, the factual basis for appeal must be clearly stated in Part A and a copy of Form DC 1-303, the original grievance and response at the institutional level, must be attached. Appeals should be forwarded to the Regional Director or Secretary through routine institutional mail channels. If the inmate does not provide a reason for appeal, or attach a copy of his original grievance and response, or the Regional Director or Secretary feels that the reason supplied is not adequate, the appeal request will be returned to the inmate and reasons for return will be specified in Part B. 82-14.9 Action by the Director The Regional Director, Secretary or designee will have a record made of appeals received and will have a receipt sent to the inmate. He will cause the appeal to be investigated and will have up to 30 calendar days from receipt of the appeal form to make a response. The original Direct Appeal Form will be returned to the inmate. The first copy (with copy of the Institutional Appeal attached) will be placed in the inmate record in the Bureau of Offender Records. The second copy will be sent to the Superintendent for his review and subsequent filing in the institutional inmate file. 82-14.10 When Time Limit Cannot Be Met The period of time referred to for action at the institution, Region, or Department level may be extended for a reasonable period not to exceed 30 days, upon finding that the circumstances are such that the initial period is insufficient to make an appropriate decision. This action must be communicated in writing to the complainant with the time of the extension noted. 82-14.11 Record Keeping As previously stated, a record should be made of each grievance or appeal and should contain at least the following information: Inmate Name, Prison Number, Date Grievance was filed, Date of Receipt, Nature of Grievance or Appeal, and Issued Question to be resolved, Disposition of Grievance or Appeal, and Date of Disposition. A copy of this record should be filed monthly in the Assistant Superintendents', Regional Director's or Secretary's Office. 82-14.12 Freedom no Use Grievance Procedure Inmates can be assured that no action will be taken against them requiring from submission of an grievance unless they knowingly and intentionally make a statement which is proven false beyond a reasonable doubt pursuant to disciplinary procedures. An inmate should report to Administrative Staff any threats or other punitive type actions taken by staff personnel. 82-14.13 Fact Finder This facility has been selected to initiate a pilot program utilizing volunteer attorneys to hear inmate grievances. These scheduled visits will be coordinated by the Assistant Superintendent for Programs, who has been designated as institutional coordinator. Hearings will he administrative in nature and the attorneys nay utilize tape recorders if desired. Fact Finders will forward their written reports to D. H. Brierton, Project Coordinator. The Fact Finder report is advisory and will be considered by the Secretary in making his final decision on the grievance. Union Correctional Institution Policy Memorandum 82-14. George W. Bedingfield, respondent's inmate grievance administrator, conceded that UCI Memo 82-14.13 states matters not covered by Rule 33-3.07, Florida Administrative Code. As a practical matter, however, funds for the experimental project contemplated by UCI Memo 82-14.13 are now depleted. Respondent conceded at hearing that so much of PPD 4.07.02 as provides, "The aggrieved inmate is requested to substantiate that the informal remedy procedures have been exhausted and like language in UCI Memo 82-14.4, depart from Rule 33-3.07, Florida Administrative Code. Respondent's proposed order includes proposed findings of fact which have been adopted, in substance, in large part. Proposed findings have been rejected where unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
