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
Findings Of Fact Respondent, Teresa D. Mejico, was certified as a correctional officer by petitioner, Criminal Justice Standards and Training Commission, on February 17, 1988, and issued certificate number 03-87-502-02. At approximately 2:45 a.m., on October 3, 1988, respondent, while employed as a correctional officer at the Broward Correctional Institute, was observed by her supervisor leaning on her desk in the officer's station at Dormitory H-4. Sitting in a chair at respondent's side was Inmate Deronda Lemmonds, who was observed holding respondent's right arm, and kissing, licking and nuzzling it, while her right hand was between respondent's legs in the area of her crotch. Respondent was immediately relieved of duty, and later that day was discharged from her employment at Broward Correctional Institute for her failure to comply with Florida Department of Corrections Rule 33-4.002(28), Florida Administrative Code. That rule provides: Employees shall maintain a professional relationship with all persons in the custody or under supervision of the Department, and their immediate family or visitors. No personal or business relationships are permitted. Marriage between employees and inmates is prohibited. That respondent was fully aware of the foregoing rule, and the standard of conduct it established, cannot be gainsaid for she acknowledged such at hearing. Notwithstanding such knowledge, however, respondent persisted in fostering the personal relationship which existed between her and Inmate Lemmonds despite denials to her superintendent that any such relationship existed and counseling from her superintendent to avoid any such relationships. Following the termination of her employment at Broward Correctional Institute, respondent maintained contact with Inmate Lemmonds through the mail and by telephone, and variously expressed her affection and love for the inmate. On one occasion, she mailed the inmate 20-25 photographs of herself, including some photographs that captured respondent in partially nude and suggestive poses. In all, the proof demonstrated that respondent was romantically involved with Inmate Lemmonds while she was employed at Broward Correctional Institute, and continued to be so involved as of the date of hearing. It further demonstrated that she was untruthful with her superintendent, failed to abide the rules of conduct for correctional officers, and neglected her duty to guard Dormitory H-4 while engaged in a liaison with an inmate under her charge.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent' s certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of May 1990. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6410 Petitioner's proposed findings of fact are addressed as follows: 1. Adopted in paragraph 1. 2-4. Adopted in paragraph 4. 5-9. Not material or not necessary to result reached. 10-14. Adopted in paragraph 5. Adopted in paragraph 2. Adopted in paragraph 3. COPIES FURNISHED: Elsa Lopez Whitehurst Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Teresa D. Mejico 7502 S.W. 5th Street North Lauderdale, Florida 33068 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent violated Sections 943.13(7) and 943.1395(6), (7), Florida Statutes, and Rule 11B-27.011(4)(a), (c), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Reinaldo C. Pascual (Pascual), has been certified by the Petitioner, Criminal Justice Standards and Training Commission (CJSTC), as a corrections officer since June 17, 1988. His certificate number is 65593. On May 24 and 25, 1993, Pascual was employed by the Metropolitan Dade County Department of Corrections and Rehabilitation (Corrections) as a corporal. He was assigned to the ninth floor of the pretrial detention facility. The ninth floor is the psychiatric ward. Pascual was working the 11 p.m. to 7 a.m. shift. On May 21, 1994, Eladio Vega appeared in court on a traffic matter after which the judge instructed him not to drive his vehicle because Mr. Vega had been drinking all night. Mr. Vega went to his vehicle after the court appearance. As a result of his actions, he was held in contempt of court and sentenced for a number of days in jail. Mr. Vega was incarcerated in the Dade County Jail and was placed on the fourth floor of the pretrial detention facility with the general inmate population. Late in the evening of May 24 or early morning hours of May 25, 1993, Mr. Vega began to exhibit some bizarre behavior, touching other inmates and changing the channels on the television set in the dayroom. Officer Gary Banks received complaints from the other inmates about Mr. Vega's behavior. Officer Banks went to Mr. Vega's cell and asked him to step outside the cell. Acting nervously, Mr. Vega complied but told Officer Banks that he had to get back in the cell because his son was in the cell. Mr. Vega's son was not in the cell. Thinking that Mr. Vega's behavior was strange, Officer Banks contacted his superior and requested authorization to take Mr. Vega to the clinic so that a nurse could take a look at him. Around 1:45 a.m., Officer Banks escorted Mr. Vega to the clinic. While Vega was in the clinic, he was pacing, sweating, and acting nervously. The nurse on duty determined that Mr. Vega should be transferred to the ninth floor until he could be evaluated by the day nurses. Mr. Vega was transferred to the ninth floor and placed in a cell with fifteen to twenty other psychiatric patients. The inmates complained about Mr. Vega's behavior, and Mr. Vega was transferred to cell 9-C-2, which is a single-man cell. The cell is one of five or six pods which are locked with no access to the dayroom. Each pod is approximately eight feet by six feet and contains a metal bunk, a toilet, and a sink. The only opening to the pod is a chow hole, which is a slot that is approximately two feet by one foot with a metal cover. The chow hole is used to serve food to the inmates. The door to the pod is made of steel with chicken wire enclosed by glass. The wall to the pod is transparent and made of glass. There are slots in the glass wall so that the inmates and officers can communicate. Mr. Vega began to bang on the cell walls, yelling and screaming. Officer Del Castillo was on duty on the ninth floor and went to see what was wrong with Mr. Vega. Officer Del Castillo tried to verbally calm Mr. Vega, but he did not succeed. Mr. Vega was trying to kick out the window in the cell, using a donkey kick by having his back to the window and kicking the window with his feet. Unable to quiet Mr. Vega, Officer Del Castillo went to his supervisor, Pascual, and told him about Mr. Vega's behavior and of his fear that Mr. Vega would harm himself. Pascual got the leg shackles and went to Mr. Vega's cell with Officer Del Castillo. Both officers unsuccessfully tried to calm Mr. Vega. Pascual decided to go into the cell and restrain Mr. Vega. As Officer Del Castillo opened the cell door, Pascual was standing directly in front of the door. When the door opened, Mr. Vega ran out, hitting Pascual in the abdominal area and knocking him toward the floor. Mr. Vega testified that he ran out of the cell because he thought the officers were trying to poison the air in his cell. Pascual managed to hit Mr. Vega in the face. Mr. Vega then turned and started to throw punches at Officer Del Castillo. None of Mr. Vega's punches found their mark. Officer Del Castillo was able to land a couple of punches on Mr. Vega's head and face. Having recovered from Mr. Vega's initial hit, Pascual hit Mr. Vega in the face. Mr. Vega fell backward and landed on the floor with his back to the cell wall. Mr. Vega hit the left side of his head on the chow hole in the cell. Pascual told Mr. Vega to turn onto his stomach and to put his hands behind his back. Mr. Vega did not comply but started to get up on his feet. Pascual, thinking that Mr. Vega was going to attack him again, grabbed Mr. Vega around the throat and tried to implement a lateral vascular neck restraint (LVNR). Mr. Vega was thrashing from side to side and leaned forward carrying Pascual upward on his back, piggy back style, until they lost their balance and fell forward hitting the metal bunk in the cell. Pascual was able to apply the LVNR, and Vega passed out for a few seconds. By this time Mr. Vega was bleeding profusely on the left side of his head. Pascual and Officer Del Castillo, placed handcuffs on Mr. Vega's wrists and shackles on his ankles. Mr. Vega was placed stomach down on a stretcher, which was between six to twelve inches from the floor. Pascual and Officer Del Castillo placed Mr. Vega in the elevator to take him to the clinic. While they were in the elevator, Mr. Vegal rolled off the stretcher at least two times. The stretchers were old and were not equipped with straps to hold the inmate down. When they arrived at the clinic, Nurses Kim Smith and Dorothy Ferguson were on duty along with Officer Lionel Cloney. Nurse Ferguson completed a medical addendum at 4:45 a.m. concerning Mr. Vega. She completed the section entitled "Specific description of any and all injuries" as follows: Bizarre behavior. Irrational. Out of control. Violent Behavior! Bleeding from R eye/Laceration in ear. Bright red-Large amt bleeding. Harmful to self & others. Nurse Ferguson completed the section of the medical report entitled "Treatment Rendered and/or Medical Recommendations" as follows: 4 point restraints. Harmful to self & others. Refer Ward-D Emergency. Ward D is a section of Jackson Memorial Hospital for inmates that need to go to the hospital for medical treatment. There are three ways to transport an inmate from the pretrial detention facility to Ward D: first, inmates with the most extreme emergencies are transported by Fire Rescue; second, inmates with less extreme emergencies are transported by ambulance; third, inmates needing routine medical care are transported by Corrections. The medical staff at the pretrial detention facility decides how the inmates will be transported to the hospital. In the case of Mr. Vega, the nurses determined that Mr. Vega would be transported to Ward D by Corrections. Officers Del Castillo and Pascual took Mr. Vega to the lobby of the detention facility to wait to be transported to Ward D. Officer Del Castillo went back to the ninth floor to write his report, and Pascual stayed with Mr. Vega. They were in the lobby approximately fifteen minutes before they left for the hospital. While Mr. Vega and Pascual were waiting in the lobby, Sergeant Alfonso Iglesisas observed Mr. Vega yelling and screaming. He also saw Mr. Vega roll off the stretcher two or three times. Pascual and Officer Marshall transported Vega to Ward D in a Corrections station wagon. Mr. Vega was placed in the rear of the vehicle, and Pascual sat in the front seat with Officer Marshall. The trip to Ward D took less than five minutes. Upon their arrival at Ward D, Pascual advised Corrections personnel there that he had a violent inmate in a four-point restraint and that he needed assistance to bring the inmate inside. Two or three officers assigned to work Ward D came out with a wheelchair and took Mr. Vega inside. Pascual accompanied Mr. Vega inside, where Mr. Vega was placed in a holding cell. Mr. Vega was still behaving violently and screaming. Pascual returned to the pretrial detention center. Mr. Vega had the following injuries when he was admitted to the intensive care unit hospital on May 26, 1993 at 4:04 a.m.: fractures of the orbit, a large bruise on his flank, fracture of the nasal bone, fracture of the second cervical vertebra, a cut over the left ear, a punctured eardrum, extensive bruising on his arms, deep abrasions on the right side of his abdomen and left side of his chest and abdomen, and a rotator cuff tear. Additionally he was suffering from alcohol withdrawal delirium and rhabdomyolysis, which is damage to the muscle. Rhabdomyolysis can be caused by trauma or alcohol withdrawal. In Mr. Vega's case, it could not be determined what was the cause of his rhabdomyolysis. The injuries noted are consistent with more than three blows to the head. The rotator cuff tear likely occurred when the officers were trying to apply handcuffs to Mr. Vega. All of Mr. Vega's injuries were sustained at approximately the same time and could have occurred within a time period of five to six hours. Mr. Vega's injuries were caused by blunt trauma sustained as a result of being punched or kicked. Mr. Vega spent 13 days in intensive care at Jackson Memorial Hospital. As a result of his injuries, he required oral-facial surgery. The rotator cuff tear will produce some pain in the shoulder after it has healed and may result in arthritis in the future. At the time of the incident at issue, a Use of Force/Levels of Resistance Matrix established by the CJSTC was in effect. The matrix serves "as a guideline for an officer to select effective reasonable and legal force options in a verbal or physical encounter." (Petitioner's Exhibit 6) The matrix has six resistance levels and six response levels. Resistance level four is active physical resistance and is defined as follows: A subject makes physically evasive movements to defeat an officer's attempt at control. This may be in the form of bracing or tensing, attempts to push/pull away or not allowing the officer to get close to him/her. Resistance level five is aggressive physical resistance and means the following: A subject makes overt, hostile attacking movements which may cause injury, but are not likely to cause death or great bodily harm to the officer or others. The highest response level on the matrix for active physical resistance is the use of intermediate weapons, such as a baton, side handle baton, aerosol tear gas, and flashlight. These weapons are used primarily to control a person. The highest response level on the matrix for aggressive physical resistance is incapacitation, which is defined as: Techniques that are intended to stun or render a subject temporarily unconscious, delivered with or without an impact weapon, such as a strike to a major nerve area. If a specific level of response is not available to an officer, the officer can go up one level to respond to the resistance. Neither Pascual nor Officer Del Castillo had intermediate weapons available at the time that Mr. Vega ran out of his cell and starting fighting the officers. The Metro-Dade Corrections and Rehabilitation does not use intermediate weapons. The LVNR is not included in or classified in the response levels of the Use of Force/Levels of Resistance Matrix. If it had been classified, it would come under incapacitation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed. DONE AND ENTERED this 3rd day of December, 1997, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1997. COPIES FURNISHED: Karen D. Simmons Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Teri Gutman Valdes Assistant General Counsel Dade County Police Benevolent Association 10680 Northwest 25th Street Miami, Florida 33172-2108 A. Leon Lowry, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue The issue is whether the correctional officer certification of Steven S. Wright should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Steven S. Wright is a certified correctional officer, having been issued certificate number 43-88-502-05 on December 19, 1988. Mr. Wright was employed as a Correctional Officer I at Lake Correctional Institute in June 1989. On the morning of June 20, 1989, and on other occasions, Mr. Wright had discussed drugs with inmates. He did not encourage or support the use of drugs. He believed these discussions were a useful part of the rehabilitation process. Later on June 20, 1989, Inmate Clinton Gholson approached Mr. Wright in the Food Services area and placed a piece of paper in Mr. Wright's pocket. Mr. Wright was planning to be married in a short time. Gholson had indicated that he and some other inmates wanted to make a wedding present for Wright in Arts and Crafts. Because inmates are generally prohibited from giving gifts to correctional officers, Mr. Wright and Gholson had agreed to a paper work process which was to be followed if Gholson and the others wished to make the gift for Mr. Wright. Authorization was to be sought before Mr. Wright actually received the gift. Gholson was to give Mr. Wright a choice of gifts Gholson could make. Mr. Wright understood that Gholson was to give him a short written list from which to pick. While Mr. Wright was working on June 20, 1989, Gholson approached him from behind and slipped the piece of paper into Mr. Wright's back pocket. Gholson indicated it was the gift list and Mr. Wright was to circle the gift he wanted. Gholson said something like, "You do that and that's what we'll make." Mr. Wright did not look at the note then. He forgot about it and finished his work. When Mr. Wright got home that evening, he discovered the note in his pocket. When he opened it, instead of a gift list, he found $3.00 and a note asking Mr. Wright to smuggle drugs (a "twenty cent piece") into the prison and they would make $240.00 from it. Mr. Wright was scheduled off from work the next two days. He was afraid he would lose his job because of what Gholson had done. When Mr. Wright returned to work on June 23, 1989, he told Sergeant Alexander what had happened. She sent him to Major Collier to make a report. Wright made the report and submitted it. He had forgotten to bring the note and money that day, so he could not attach it to the report. When Mr. Wright returned home that night, the note and money were gone. It was never determined if his wife or his nephew or someone else had thrown it away. Once Gholson knew he had Mr. Wright in a bad position, he used it to his advantage. He began demanding money from Mr. Wright and stated at various times that he had given Mr. Wright $10.00 to buy drugs and that he had loaned Mr. Wright $10.00. Mr. Wright reported these incidents immediately. When Gholson wrote another note demanding $10.00, Mr. Wright immediately turned that note over to Major Collier. A hearsay statement from Gholson in the form of a taped interview was submitted into evidence. It is found that Gholson's statements are so unbelievable as to be unworthy of any credibility. Even if the statements were not hearsay, they would be too unbelievable to form the basis for a finding of fact. Mr. Wright was fired from his job at Lake Correctional Institute as a result of these incidents and Gholson's statements. While there are some insignificant inconsistencies among the various statements and reports given by Mr. Wright, I find that his testimony and account of these events is absolutely credible and worthy of belief. While it is not disputed that Mr. Wright left the correctional institute on June 20, 1989, with a note and $3.00 which Gholson slipped into his pocket, it is affirmatively found that Mr. Wright had unwittingly done so. Mr. Wright had no idea that Gholson had placed money into his pocket until he reached home later that night. Mr. Wright did not knowingly accept money from Gholson.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Criminal Justice Standards and Training Commission enter a Final Order dismissing all charges against Steven S. Wright. RECOMMENDED this 10th day of June, 1991, at Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1991.
Findings Of Fact 1. Incorporated in Finding of Fact 1. 2-7. Incorporated in Finding of Fact 16. Incorporated in Finding of Facts 3 and 4. Incorporated in Finding of Fact 6. 10-11. Incorporated in Finding of Facts 7 and 8. Incorporated in Finding of Facts 10 and 11. Rejected as contra to the weight of the evidence. Incorporated in Finding of Fact 17. Incorporated in Finding of Fact 16. Incorporated in Finding of Facts 12-14. Incorporated in Finding of Fact 15. Incorporated in Finding of Facts 12-14. Incorporated in Finding of Fact 15.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore RECOMMENDED that: Respondent's certification as a corrections officer be revoked, but that the revocation be suspended and respondent placed on probation for a-period of two years at which time if there is no further evidence of misconduct by the Respondent, the revocation be remitted and the probation terminated. RECOMMENDED this 22nd day of July, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings This 22nd day of July, 1986. COPIES FURNISHED: Joseph S. White, Esq. Assistant General Counsel Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302 Gene "Hal" Johnson, Esq. 233 W. College Avenue Tallahassee, FL 32301 Robert R. Dempsey Executive Director Department of Law Enforcement O. Box 1489 Tallahassee, FL 32302 APPENDIX The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
Findings Of Fact Petitioner, Jean Colden (Colder), was employed full time by Respondent, Department of Corrections (Department), as an Accountant II at Broward Correctional Institution. The evidence establishes that Colden was absent without authorized leave on three consecutive workdays, to wit: October 1-3, 1985. At no time did Colden notify the Department of her intention not to appear for work on those dates, and at hearing she offered no explanation for her absences. By certified letter dated October 4, 1985, return receipt requested, Colden was advised that her absence from work since October 1, 1985, was unauthorized and that, pursuant to Rule 22A-7.10(2), F.A.C., she was deemed to have abandoned her position and resigned from the Career Service. The letter further advised Colden of her right to petition the Department of Administration for a review of the facts, and whether they constitute abandonment. Colden timely petitioned the Department of Administration for review On November 5, 1985, he Department of Administration accepted Colden's petition and requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing.
Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. Respondent has stipulated that Petitioners have "standing" to challenge the rules and the policy and procedure directives which are the subject of this proceeding. At the time the petition in this cause was filed, Petitioners challenged the validity of Rule 33-3.081, Florida Administrative Code, as it existed as of its latest revision on May 22, 1981. However, subsequent to the filing of the petition in this cause, and prior to the date of final hearing, Respondent amended Rule 33-3.081, and filed these amendments with the office of the Secretary of State on June 23, 1983. At final hearing in this cause, the parties stipulated to the Petitioners maintaining a challenge to newly amended Rule 33-3.081(4), (5), and (9)(a) and (d), Florida Administrative Code. On or about November 30, 1979, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.11, which was subsequently revised on June 14, 1981. This directive contains 13 separately titled sections. The first section, entitled Authority, simply lists the authority, both statutory and rule-based, for issuance of the directive. Section three contains definitions which, with a single exception not relevant here, are identical to those contained in Rule 33-3.081(2). Sections four through thirteen likewise recapitulate provisions contained in Respondent's rules or in relevant statutes. The following is a list of titles of sections four through thirteen, each of which is followed with a parenthetical reference of the rule provision substantially incorporated therein: Staff Selection (33- 3.081(10)); Basis for Placement (33-3.081(1)); Placement (33-3.081(4)); Protection Cases (33-3.082); Visiting (33-3.081 (5)); Gain Time (33-11.11 and Section 944.28, Florida Statutes); Review of Administrative Confinement (33- 3.081(6)); Self-Improvement Programs (33-081(7)); Facilities (33-3.081(8)); General Provisions (33-3.081(9)(a)-(k)). Sections 13(l) and (m) of the policy and procedure directive essentially reiterate the provisions of Rule 33-3.081(6) and 33-3.081 (11) , respectively. On or about June 14, 1981, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.20, entitled "Discipline." This directive which purportedly issued pursuant to the authority contained in Sections 944.09, 944.14, 944.15, 944.28 and 945.21, Florida Statutes, and Chapter 33-3.08, Florida Administrative Code. In fact, each of the 20 separately numbered portions of this directive substantially recapitulate requirements already contained in Rule 33-3.08, Florida Administrative Code. The single exception is Section 7 of the directive, entitled Administrative Confinement, which finds its support in Rule 33-3.081. Neither Policy and Procedure Directive 4.07.11 nor Policy and Procedure Directive 4.07.20 purport to create or otherwise adversely affect rights of inmates in any manner which differs from corresponding provisions of Rules 33- 3.081, 33-3.08 or the provisions of the Florida Statutes cited as authority for issuance of the policy and procedure directive. Rather, the rights of inmates are specifically determinable pursuant to those cited statutory provisions and the requirements of Rules 33-3.081 and 33-3.08, and the challenged policy and procedure directives simply recapitulate the requirements contained therein.
The Issue The issue presented herein is whether or not Union Correctional Institution's Policy and Procedure Directive 3.04.11 is a rule not promulgated pursuant to Section 120.54, Florida Statutes, and therefore is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner is an inmate at Union Correctional Institution at Raiford, Florida. Petitioner is a black male affected by pseudofolliculitis barbae or "PFB," a skin condition caused by ingrown facial hairs which manifests itself in lesions and irritation in affected areas. The best treatment for "PFB" is to refrain from shaving in the affected areas and allowing the facial hair to grow. Petitioner has allowed his facial hair to grow and does not at the present time shave. If an inmate chose, or for some reason was required to shave and irritation developed, medicinal preparations available at the institution's infirmary could be administered to alleviate the irritation. Further, should an infection or other serious medical problem develop as a result of the shave, arrangements would be made for such an inmate to see a dermatologist at the Lake Butler Institution's infirmary. Alcohol, although a drying agent, would further irritate the affected area. (Testimony of Dr. Julius Avilez, general practitioner employed at Union Correctional Institution's infirmary) On February 26, 1981, Respondent issued Policy and Procedure Directive 3.04.11, Inmate Package Permit. The directive indicated that items containing alcohol would not be accepted in packages received by inmates at all institutions and community facilities within the Department of Corrections. Subsequent to the issuance of the above directive, the Petitioner, on February 3, 1984, had several items confiscated from an approved package by Officer K. E. Scates, a Property Room Officer at the institution. Two plastic containers of splash-on aftershave cologne, trade name "Brut" with S and D alcohol content, were confiscated and are presently being held in the institution's Property Room as property of the State. The aftershave lotion was confiscated by the institution authorities pursuant to the above directive and the Petitioner was notified that the substance would be forfeited unless arrangements were made for return of the substance to either its source or Petitioner's family.
