Findings Of Fact Standing. The Petitioner, David Ansgar Nyberg, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Petitioner has challenged Rule 33-12.001(2), Florida Administrative Code. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Rule 33-12.001(2), Florida Administrative Code. Rule 33-12.001, Florida Administrative Code, provides in pertinent part: Prior notice of adoption, amendment or repeal of a rule shall be made available to persons or parties directly affected by the rule as required in 120, F.S. Notice to those directly affected by a proposed rule shall be by: . . . . (b) Publication in the Florida Administrative Weekly at least 14 days prior to any proposed hearing. . . . . (d) Posting by memorandum notice of the intended action on the inmate and personnel bulletin boards of all major institutions, road prisons, community correctional centers, community vocational centers and offices throughout the state directing that complete proposed rules are available in each institutional library or office. A copy of the notice shall be circulated among the inmates in all disciplinary, administrative or close management confinement areas of all facilities.
The Issue Whether Rules 33ER91-1 and 33ER91-2, Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners, Donald Eugene Halpin and Richard Edward Jackson, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are subject to the rules of the Respondent, including the emergency rules at issue in this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing the rights of inmates, the operation and management of correctional institutions, classification of inmates and all other aspects of the operation of the prison system in Florida. Chapter 33-6, Florida Administrative Code. Chapter 33-6, Florida Administrative Code, governs, among other things, the classification of inmates. Rule 33-6.009, Florida Administrative Code, governs the classification of inmates for purposes of determining the type of custody an inmate should be subjected to. Pursuant to Rule 33-6.009(3), Florida Administrative Code, inmates may be classified in one of five custody classifications: minimum, medium-out, medium-in, close or maximum. History of Changes in Custody Grade Classification of Inmates Since 1990. In June of 1990, Donald D. Dillbeck, an inmate of the Respondent, was classified and placed in a minimum custody classification, which is the least restrictive custody classification. While outside of the institution in which he was housed and while working at a vocational center, Dillbeck escaped from custody of the Respondent and murdered a woman in the parking lot of a shopping center in Tallahassee, Florida. In response to this murder, then Governor Bob Martinez issued an executive order ordering that all medium or minimum custody classifications of capital-life felons be revoked and that all capital-life felons be classified as close custody, the second most restrictive custody classification. Governor Martinez's executive order was followed by the promulgation by the Respondent of Rule 33ER90-4, Florida Administrative Code, amending Rule 33-6.009, Florida Administrative Code. Effective January 23, 1991, the Respondent promulgated Rule 33ER91-1, Florida Administrative Code, amending Rule 33-6.009, Florida Administrative Code. Effective April 23, 1991, at approximately the same time that Rule 33ER91-1 expired, the Respondent promulgated Rule 33ER91-2, Florida Administrative Code, amending Rule 33-6.009, Florida Administrative Code. Rule 33-6.009, Florida Administrative Code, Prior to the First 1991 Emergency Rule. Rule 33-6.009, Florida Administrative Code, prior to its amendment by Rule 33ER91-1, and other subsequent amendments, contained the following general provisions, pertinent to this proceeding: Section (3) contained provisions concerning the manner in which custody grades of inmates were determined; Section (4) contained provisions placing restrictions on the placement of certain inmates into the community; and Section (5) contained provisions placing restrictions on the assignments that certain inmates could be given. In general, Rule 33-6.009(3), Florida Administrative Code, provided the following: Five classes of custody were established. Rule 33-6.009(3)(a), Florida Administrative Code; An initial questionnaire and reclassification questionnaires were required to be completed for all inmates. Rule 33-6.009(3)(b), Florida Administrative Code; Inmates were awarded a numerical score as a result of the completion of the initial and reclassification questionnaires. Each inmate's custody classification was initially determined based upon this numerical score. For example, an inmate with an initial score of six or more and an inmate with a reclassification score of eight or more was classified as close custody. Rule 33-6.009(3)(c), Florida Administrative Code; If an inmate's numerical score was below the score for close custody and the inmate was not within thirty-six months of release, the inmate's custody classification had to be raised to close custody if any of a number of factors referred to as a "custody checklist" applied to the inmate. For example, an inmate serving a sentence for first or second degree murder had to be classified as close custody even if that inmate's questionnaire score was below six points (on an initial questionnaire) or below eight points (on a reclassification questionnaire). Rule 33-6.009(3)(d), Florida Administrative Code; Additionally, an inmate had to be classified as close custody even if the inmate's score was below six or eight points until the minimum mandatory portion, if any, of the inmate's sentence was satisfied or the inmate was within thirty-six months of release, if the inmate was serving time for certain specified offenses. Rule 33-6.009(3)(d)4, Florida Administrative Code; An inmate's custody grade questionnaire score could also be modified upward based upon consideration of other factors specified in Rule 33- 6.009(3)(d)5, Florida Administrative Code, such as whether the inmate's primary offense had been reduced as a result of a plea bargain. Custody grade scores could be modified downward based upon the same factors but only if the custody checklist was met. Rule 33-6.009(3)(d)5, Florida Administrative Code; Finally, all custody assignments had to be reviewed and approved by the superintendent or his designee. Rule 33-6.009(3)(d)6, Florida Administrative Code. Rule 33-6.009(4), Florida Administrative Code, prohibited the placement of an inmate on work release or other community contract bed if the inmate met any of a number of specified factors, including conviction of 1st or 2nd degree murder (unless the inmate had completed the mandatory portion of the inmate's sentence and was within twelve months of release). Rule 33-6.009(5), Florida Administrative Code, prohibited inmates from being assigned to a road prison, vocational center, forestry camp or to a work camp not adjacent to a major institution if the inmate met any of a number of specified factors, including conviction of 1st or 2nd degree murder. Rule 33ER91-1, Florida Administrative Code. Rule 33ER91-1, Florida Administrative Code, amended the substance of Rule 33-6.009(3), (4) and (5), Florida Administrative Code. Rule 33ER91-1 did not amend the five classes of custody established in Rule 33-6.009(3)(a), Florida Administrative Code. Rule 33ER91-1 did not amend the requirement that initial and reclassification questionnaires be completed for all inmates contained in Rule 33-6.009(3)(b), Florida Administrative Code. Rule 33ER91-1 did not amend the manner in which inmates are awarded a numerical score as a result of the completion of the initial and reclassification questionnaires. Each inmate's custody classification is still initially determined based upon this numerical score. Rule 33-6.009(3)(c), Florida Administrative Code. Rule 33ER91-1 did amend Rule 33-6.009(3)(d), Florida Administrative Code, by eliminating the requirement that the custody classification of an inmate with a grade below the score for close custody had to be raised if any of the factors on the "custody checklist" applied to the inmate. Therefore, for example, an inmate serving a sentence for first or second degree murder is not automatically classified as close custody even if that inmate's questionnaire score is below the six points (on an initial questionnaire) or below eight points (on a reclassification questionnaire). Rule 33ER91-1 also amended Rule 33-6.009(3)(d), Florida Administrative Code, by eliminating the requirement that an inmate be classified as close custody even if the inmate's score was below six or eight points until the minimum mandatory portion, if any, of the inmate's sentence was satisfied or the inmate was within thirty-six months of release based upon the specified offenses formerly contained in Rule 33-6.009(3)(d)4, Florida Administrative Code. Rule 33ER91-1, also amended Rule 33-6.009(3)(d)5, Florida Administrative Code. In essence, the amendment to Rule 33-6.009(3)(d)5, Florida Administrative Code, requires that the Respondent consider a number of factors to either increase or decrease an inmate's custody grade questionnaire score. Generally, all of the factors which the Respondent was required to consider under Rule 33-6.009(3)(d), Florida Administrative Code, and all of the factors which required close custody under Rule 33-6.009(3)(d), Florida Administrative Code, must only be considered by the Respondent under the emergency rule. Rule 33ER91-1, eliminated the requirement contained in Rule 33- 6.009(3)(d)6, Florida Administrative Code, that all custody assignments be reviewed and approved by the superintendent or his designee. The superintendent of a prison is now required under the emergency rule to review and approve all modifications to the custody classification resulting from an inmate's questionnaire. Rule 33ER91-1 repealed Rule 33-6.009(4), Florida Administrative Code, and its prohibition on the placement of an inmate on work release or other community contract bed if the inmate met any of the factors specified in this portion of the rule. Finally, Rule 33ER91-1 repealed Rule 33-6.009(5), Florida Administrative Code, and its prohibition on inmates being assigned to a road prison, vocational center, forestry camp or to a work camp not adjacent to a major institution if the inmate met any of the factors specified in this portion of the rule. The weight of the evidence failed to prove that the requirements of Rule 33ER91-1, Florida Administrative Code, are arbitrary or capricious. Rule 33ER91-2, Florida Administrative Code. Rule 33ER91-2, Florida Administrative Code, is for all practical purposes identical to Rule 33ER91-1, Florida Administrative Code. Rule 33ER91-2, Florida Administrative Code, was declared invalid in a Final Order entered on October 1, 1991, in Darryl James McGlamry v. Department of Corrections, Division of Administrative Hearings Case No. 91-2804R.
Findings Of Fact On December 3, 1991, the Petitioner, Douglas Adams, filed a Petition to Determine the Invalidity of an Existing Rule. In the Petition, the Petitioner challenged Rule 33-22.012, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. The Petitioner is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the Challenged Rule. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Chapter 33-22, Florida Administrative Code, contains rules governing "inmate discipline." Those rules provide the general policy of the Respondent concerning inmate discipline (Rule 33-22.001), terminology and definitions (Rule 33-22.002), the procedures for taking disciplinary action against inmates (Rules 33-22.003-33-22.010), and the "Rules of Prohibited Conduct and Penalties for Infractions (the Challenged Rule). Rule 33-22.012, Florida Administrative Code, provides, in pertinent part, the following: 33-22.012 Rules of Prohibited Conduct and Penalties for Infractions. The following table shows established maximum penalties for the indicated offenses. As used in the table, "DC" means the maximum number of days of disciplinary confinement that may be imposed and "GT" means the maximum number of days of gain time that may be taken. Any portion of either penalty may be applied. "All GT" includes both earned and unearned gain time. In addition to the penalties listed below, inmates may be required to pay for damaged, destroyed or misappropriated property under the provisions of rule 33-22.008(2)(b)13. . . . . Rule 33-22.012, Florida Administrative Code, includes a table listing of various offenses for which disciplinary action may be taken and the maximum penalty for such offenses. The Petitioner has alleged, in part, that the Challenged Rule is invalid because it: provides maximum penalties for major violations, but fails to designate, or define minor infractions, or provide sufficient guidelines to guide the agency in exercise of its discretion to designate minor infractions as opposed to major infraction listed by the rule. More particularly, the rule provides in part that "any portion of either penalty may be applied." Applying either penalty listed in this rule, which provides for loss of gaintime or disciplinary confinement, is definitionally a major violation. . . . The Petition and the Amended Petition do not included any alleged facts supporting the Petitioner's assertion that the Challenged Rules are "arbitrary and capricious."
The Issue The issue presented is whether Respondent should deny Petitioner's application for licensure as a resident life insurance agent, including variable annuity and health insurance.
Findings Of Fact Respondent is the state agency responsible for licensing insurance agents in the state pursuant to Chapter 626, Florida Statutes (2004). On May 2, 2005, Respondent received Petitioner's application to be licensed as a resident life, variable annuity, and health agent (insurance agent). On September 22, 2005, Respondent issued a Notice of Denial to Petitioner. Respondent based the denial on several grounds that may be divided into three parts. The first part is based on Petitioner's prior criminal history. In relevant part, the Notice of Denial denies the application because Petitioner pled guilty to two crimes allegedly punishable by imprisonment of one year or more. The Notice of Denial further states that the crimes were crimes of moral turpitude and that Subsection 626.611(14), Florida Statutes (2004), makes denial of the application compulsory. Even if the crime were not one of moral turpitude, the Notice of Denial states that the guilty pleas provide a discretionary ground to deny the application pursuant to Subsection 626.621(8), Florida Statutes (2004). The second part of the grounds for denial is also compulsory. The second part of the grounds may be fairly summarized as alleging a lack of fitness or trustworthiness to engage in the business of insurance within the meaning of Subsections 626.611(7), 626.785(1), and 626.831(1), Florida Statutes (2004). The second part of the grounds for denial is a tautology of the criminal offenses. The Notice of Denial states that Petitioner lacks one or more qualifications for the license because of the criminal convictions. The third part of the grounds for denial relates to waiting periods. The Notice of Denial states that Florida Administrative Code Rule 69B-211.042(9)(a) requires Petitioner to wait a longer period of time before applying for a license as an insurance agent due to the multiple criminal offenses. The remaining findings of fact address the factual sufficiency of the second part of the grounds for denial. The conclusions of law, in relevant part, address the legal sufficiency of the first and third parts of the grounds for denial. The criminal record of Petitioner is undisputed. On October 17, 1986, the Circuit Court of Broward County, Florida, adjudged Petitioner guilty of the felony of possession of cannabis, withheld adjudication of guilt pertaining to a felony charge of possession of cocaine, and sentenced Petitioner to two years' probation. Petitioner satisfactorily completed his probation. On January 13, 2005, Petitioner entered a plea of guilty to a felony charge of willful and malicious damage to real or personal property. The court withheld adjudication of guilt, imposed fines and costs of $450, required restitution in an amount of at least $1,000 and not more than $2,500, and placed Petitioner on probation for two years. Petitioner's son had run away from home. Petitioner had information that his son was residing in the residence for which Petitioner was charged with property damage. Petitioner was attempting to locate his son and bring him home. Petitioner did not satisfactorily complete probation. Petitioner changed residences without prior notice to his probation officer. Petitioner testified that he undertook every reasonable effort to notify his probation officer before moving. The trier of fact finds the testimony concerning Petitioner's notice to the probation officer to be credible and persuasive. The probation officer had constructive knowledge of the new residence. The move caused no harm to the state or the public.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order determining that Petitioner's license application has been granted by operation of law. DONE AND ENTERED this 8th day of June, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 8th day of June, 2006.
Findings Of Fact Rule 23-21.03(9)(b) , Florida Administrative Code, the rule under challenge, contains a list of forms to be used by the Commission in parole grant-and-rescind types of proceedings. The particular form which is challenged is PCG-4.4, entitled "Special Commission Action." The Commission on September 7, 1983, extended petitioner's presumptive parole release date (PPRD) by utilizing form PCG-4.4. Petitioner and the Commission agree that invalidation of the challenged rule will not affect petitioner's PPRD. Petitioner does not challenge the method by which Rule 23-21.03(9)(b) , Florida Administrative Code, was promulgated.
The Issue Whether the undisputed facts of this case support a Final Order of Dismissal against the Respondent, Agency for Health Care Administration.
Findings Of Fact On or about May 3, 2004, after the commencement of the hearing in DOAH Case No. 04-0217RU, AHCA announced it intended to engage in rulemaking for the subject matter addressed by the rule challenge (the statewide rates described above). DOAH Case No. 04-0217RU went into abeyance pending the results of the agency’s rulemaking effort. The Respondent scheduled a “rule development workshop” for June 8, 2004. On or about October 8, 2004, AHCA published a notice in the Florida Administrative Weekly that scheduled the public hearing in the cause, proposed a rate table, and gave persons interested in participating in the matter who wished to provide information regarding the “statement of estimated regulatory costs” to file such information within 21 days. The Petitioners timely responded to the notice. The Petitioners did, in fact, submit information regarding the statement of estimated regulatory costs. Whether or not AHCA was “required” to respond to the information provided by Petitioners is unknown. The Respondent did not notify the Petitioners that it was not “required” to consider the information. The parties participated in a public hearing on the subject matter of the rule on November 2, 2004. The Respondent did not notify the Petitioners at the public hearing that it would not respond to the information regarding the statement of estimated regulatory costs. In fact, AHCA elected to review the information and did prepare a response to the Petitioners. On December 23, 2004, AHCA issued the response to the information provided by the Petitioners regarding the statement of estimated regulatory costs. Whether or not the response was “adequate” under the law is not known. For purposes of this matter, it is undisputed that the Respondent tendered the response. On December 27, 2004, AHCA filed the proposed rule (designated in this record as Rule 59G-8.200) with the Secretary of State. The notice of the filing of the instant rule with the Secretary of State was published in the Florida Administrative Weekly on January 14, 2005. The subject rule became “effective” on January 16, 2005. The Petitioners first challenged the “proposed rule” on January 11, 2005. At that time the publication of filing of the rule was not publicly available. There was no published notice prior to January 11, 2005, to indicate that the proposed rule had been filed with the Secretary of State. After the petition challenging the “proposed” rule was filed with the Division, the case was set for hearing for February 7, 2005. At that time the Respondent filed a series of motions seeking to continue the hearing, limit the Petitioners to specified issues, and to require a more definite statement. Essentially, the Respondent has maintained that the Petitioners did not timely file the proposed rule challenge and that the petition to challenge the existing rule is inadequate. The Petitioners intended to challenge the proposed rule and were unaware that the rule had been filed until January 14, 2005. The Petitioners sought to amend their petition challenging the proposed rule. At the hearing commenced on February 7, 2005, the procedural issues of the matter became more fully evident to all parties. At one point during the proceedings, the undersigned asked counsel for the Respondent when the Petitioners were afforded a point of entry to challenge the proposed rule. While the Respondent maintained the Petitioners had not adequately alleged the factual basis for their challenge, the procedural issue of whether the rule at issue was a “proposed” rule verses an “existing” rule had not been fully deciphered. The Respondent’s legal position, as noted by counsel, continued to be that the rule was an existing rule, that the Petitioners had not fleshed-out their claims sufficiently to meet a due process burden, and that the Petitioners bear the burden of proof in this case. The Petitioners entered an ore tenus motion for summary final order that was later reduced to writing and filed with the Division on February 22, 2005. The Respondent was granted leave to respond to the motion and did so. When the hearing was reconvened on March 3, 2005, both sides had fully addressed the issues of the case. Both sides were afforded additional argument on the matter.
The Issue Whether the Florida Department of Corrections' Emergency Rule 33ER83-3 constitutes an invalid exercise of delegated legislative authority for the reasons contained in petitioner's Petition for Determination of Validity of Emergency Rule, dated November 21, 1983.
Findings Of Fact On November 18, 1983, the Department filed and adopted Emergency Rule 33ER83-3, which provides: Shaving. All male inmates in the custody of the Department shall be clean shaven. An exemption from this requirement may be granted on medical grounds if it is determined by qualified medical staff that shaving would be detrimental to the inmate's health. In such cases the inmate may be required to keep his facial hair closely trimmed with scissors or clippers. In the December 2, 1983, Florida Administrative Weekly, Vol. 9., No. 48, the Department stated its reasons for finding an immediate danger to the public health, safety or welfare, justifying adoption of the emergency rule: The Department's rule requiring inmates to be clean shaven has recently been held invalid because of a failure to include provision for medical exemptions. If inmates were able to grow beards, mustaches and other facial hair it would seriously interfere with the identification of inmates by staff. To maintain institutional security and order it is essential that staff members be able to identify inmates easily. The emergency rule, by its terms, requires all male inmates in the Department's custody to be clean shaven, but authorizes a medical exemption. The rule applies to petitioner Adams because he is a male inmate in the Department's custody who grows facial hair. These facts are inferences which arise from the following: The hearing was held in guarded quarters at Baker Correctional Institution; Mr. Adams was obviously a male; and he wore a uniform identical to that worn by two inmates who testified. The clean-shaven rule is strictly enforced by the Department. One enforcement checkpoint is the inmate dining hall. Inmates with facial hair, and without no-shaving passes (proof of medical exemption) are required to shave their facial hair prior to eating. Food is not withheld, however, if they promise to shave immediately after eating. (Testimony of McGuire) There are sound reasons which justify the adoption of the rule on an emergency basis. If inmates were allowed to grow facial hair, such as beards and mustaches, the Department's ability to quickly and accurately identify them would be seriously impaired. Inmates with facial hair could easily and quickly alter their appearance by shaving. This would make it more difficult to identify inmates who commit crimes such as rape, robbery, and assault within the correctional institutions. For the same reasons, it would be more difficult to identify and apprehend inmates who successfully escape because the picture distributed to law enforcement agencies would depict inmates only in their clean-shaven condition. (Testimony of Townsend) The extent to which facial hair changes a person's appearance is illustrated by the recent experience of John Townsend, Assistant Superintendent of Baker Correctional Institution. During a two-week vacation in August 1983, he grew a mustache. On his return, he toured the correctional institution without being recognized by correctional officers. Two officers required him to show identification. (Testimony of Townsend) There is a bona fide infectious condition known as Pseudo Folliculitis Barbae ("PFB") which occasionally afflicts male inmates. In its acute form, it infects an inmate's face causing symptoms such as sores, puss, and bumps. Medical treatment consists of applying an antihistamine facial cream such as Caladryl, and authorizing the inmate to forgo close shaving for approximately two weeks. In lieu of shaving, whiskers are cut with scissors or clippers; this allows facial hair to grow to a length of 1-2 millimeters. PFB symptoms vary, and actual medical treatment must be decided on an individual basis. Some conditions may require only facial cream, others may require no-shaving passes for periods shorter or longer than two weeks. (Testimony of Di-Huyen Luu, M.D.)
Findings Of Fact At all times material hereto Petitioner was an inmate incarcerated at Union Correctional Institution within the custody and control of the State of Florida, Department of Corrections. Respondent stipulated at final hearing that Petitioner has "standing" to maintain the rule challenge proceeding. The parties also stipulated that the rule under challenge in this proceeding is a rule adopted by Respondent in accordance with the settlement reached in a previous administrative rule challenge proceeding in which Petitioner was a party. The parties further stipulated that ". . . inmates within the Respondent's care enjoy meaningful access to the courts." There are presently approximately 2,500 inmates incarcerated at Union Correctional Institution. There is one Xerox machine located in the law library at Union Correctional Institution, and the librarian has two inmate clerks assigned to assist in the operation of the library. There is insufficient money in the library budget to fund either additional copying machines or additional personnel to assist in copying materials other than those authorized under Respondent's rule.
The Issue Whether Rules 33-3.005(2), (7) and (11), 33-3.0051, and 33-5.006(8), Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact The Petitioner and the Intervenor; Standing. The Petitioner, W. Gerry Hargrove, is an inmate in the custody of the Respondent, the Department of Corrections. At all times relevant to this proceeding, the Petitioner was subject to the rules of the Respondent. At all times relevant to this proceeding, the Petitioner's marital status was single. At all times relevant to this proceeding, the Intervenor, Ann Hintenlang, was a married woman. The Intervenor is not related to the Petitioner. The Petitioner and the Intervenor have attempted to get approval for the Intervenor to visit the Petitioner. The Respondent has refused to approve the Intervenor as a visitor of the Petitioner because she is a married woman unrelated to the Petitioner. The Respondent's rejection of the Intervenor as a visitor is based upon the Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida and the operation of the Respondent. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted governing mail, visiting hours and privileges and all other aspects of the operation of the prison system in Florida. Rule 33-5.006(8), Florida Administrative Code. Section 944.23, Florida Statutes, provides, in pertinent part: The following persons shall be authorized to visit at their pleasure all state correctional institutions: The Governor, all Cabinet members, members of the Legislature, judges of state courts, state attorneys, public defenders, and authorized representatives of the commission. No other person not otherwise authorized by law shall be permitted to enter a state correctional institution except under such regulations as the department may prescribe. [Emphasis added]. Pursuant to the authority of Sections 944.09 and 944.23, Florida Statutes, the Respondent has adopted Chapter 33-5, Florida Administrative Code, titled "Visitors." Rule 33-5.006(1), Florida Administrative Code, provides, in pertinent part, the following: Upon being committed to the custody of the Department, each inmate shall be given the opportunity to submit a list of persons from whom he wishes to receive visits. The initial list . . . shall be limited to members of the inmate's immediate family. Once the inmate has been assigned to a permanent institution, additional relatives and friends, business associates and others may be considered, but only after a criminal history background inquiry has been made. . . . Rule 33-5.006(7), Florida Administrative Code, provides: (7) Inmate visits with approved family members or friends should be encouraged for the positive purpose of maintaining home and community ties, which after release should provide a deterrent to recidivism. To the extent that it is safe and practicable to do so, such visiting should be allowed to take place in a relaxed atmosphere. Rule 33-5.006, Florida Administrative Code, also provides certain circumstances when a person may be excluded from an inmate's visitors list. For example, persons convicted of a felony may be excluded. Rule 33-5.006(5), Florida Administrative Code. Rule 33-5.007, Florida Administrative Code, is titled "Visitation Denial." Pursuant to this rule, it is provided that visitation may be denied under certain circumstances, i.e., if a visit would present a clear and present danger to the security and order of an institution. Rule 33-5.007, Florida Administrative Code, also provides: (3) No visit should be denied: . . . . (c) for any reason unrelated to the security, order or rehabilitative objectives of the institution. Rule 33-5.006(8), Florida Administrative Code, provides the following: (8) Inmates not married may be allowed to have one single non-immediate family member of the opposite sex on the visiting list, after approval. A married inmate may be allowed to have one single, non-family member of the opposite sex on the visiting list, after approval, if a pending divorce or separation of long duration can be verified and the spouse is removed from the list. [Emphasis added]. The Respondent interprets the portion of Rule 33-5.006(8), Florida Administrative Code, challenged in this proceeding and emphasized in finding of fact 15, to allow a single male inmate to have a single female visitor and, therefore, prohibits a single male inmate from receiving visitation from a married female visitor not related to the inmate. The Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code, as argued in its proposed final order, is intended "in part to deter potential problems involving visitors to the institution and to promote security of the institution and the inmates because of fights and conflicts which have occurred in the visiting park." See proposed finding of fact 7 of the Respondent's Proposed Final Order. The Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code, set out in finding of fact 17 is uniformly applied by the Respondent. The Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code, set out in finding of fact 17 has not been adopted as a rule pursuant to Section 120.54, Florida Statutes. Rule 33-3.005, Florida Administrative Code. The Petitioner presented no evidence during the formal hearing concerning Rule 33-3.005, Florida Administrative Code, other than the rule itself. The Petitioner has challenged Rule 33-3.005(2), (7) and (11), Florida Administrative Code. Rule 33-3.005(2), Florida Administrative Code, provides: (2) Legal mail shall be defined as: Mail to and from municipal, county, state and federal courts. Mail to and from state attorneys. Mail to and from private attorneys. Mail to and from public defenders. Rule 33-3.005(7), Florida Administrative Code, provides: (7) The institution shall furnish postage for mail to courts and attorneys and for pleadings to be served upon each of the parties to a lawsuit for those inmates who have no funds at the time the mail is submitted to the mailroom, but not to exceed payment for the original and two copies except when additional copies are legally required. The inmate shall be responsible for proving that copies in addition to the routine maximum are legally necessary. Rule 33-3.005(11), Florida Administrative Code, provides: (11) "Privileged mail" is a category that includes, mail to and from public officials, governmental agencies and the news media. Privileged mail may be opened only for inspection for contraband and only in the presence of the inmate. Such mail may not be read except for signature and letterhead. If necessary, it may be held for a reasonable time pending verification that it was sent by or is properly addressed to any attorney, a court, a public official, a governmental agency or a member of the news media. The weight of the evidence failed to prove that Rule 33-3.005(2), (7) or (11), Florida Administrative Code, is contrary to statutory law or that the rule is arbitrary and capricious. The weight of the evidence also failed to prove that Rule 33-3.005(2), (7) or (11), Florida Administrative Code, is vague, fails to establish standards or vests unbridled discretion in the Respondent. Rule 33-3.0051, Florida Administrative Code. The Petitioner presented no evidence during the formal hearing concerning Rule 33-3.0051, Florida Administrative Code, other than the rule itself. Rule 33-3.0051, Florida Administrative Code, governs the manner in which institutions of the Respondent are required to provide photographic copying services to inmates. Although the Petitioner has not designated which specific language in Rule 33-3.0051, Florida Administrative Code, he believes is invalid, the Petitioner has evidently challenged the requirement of Rule 33-3.0051(3), Florida Administrative Code, that "[i]nmates will be charged $0.15 per page for standard legal or letter size copies . . . " and the following portion of Rule 33-3.0051(4), Florida Administrative Code: (4) Copying services shall not be denied inmates unable to pay for copies. An inmate shall be considered unable to pay for copies when there are no funds in his inmate account at the time the copies are completed and the assessment of cost is determined. If an inmate requesting copies has any funds in his account, he shall be required to pay for copies furnished him at the rate of $0.15 per page until the costs reduce his account to zero. . . . The weight of the evidence failed to prove that Rule 33-3.0051, Florida Administrative Code, is contrary to statutory law or that the rule is arbitrary and capricious. The weight of the evidence also failed to prove that Rule 33-3.0051, Florida Administrative Code, is vague, fails to establish standards or vests unbridled discretion in the Respondent.
Findings Of Fact By Administrative Complaint filed May 28, 1986, Petitioner, Department of Insurance and Treasurer (Department) charged that Respondent, Theodore Riley (Riley), while employed as an adjuster by United States Fidelity and Guaranty Group, (USF&G), did wrongfully obtain the sum of $400 from a workmens compensation claimant to assure that USF&G would not contest the claim (Count I). The complaint further alleged that on September 16, 1985, Riley entered a plea of nolo contendere to an information charging a violation of Section 812.014, Florida Statutes, a felony of the second degree and a crime involving moral turpitude, and that the court withheld adjudication and placed Riley on 18 months probation (Count II). The Department concluded that such conduct demonstrated, inter alia, a lack of fitness or trustworthiness to engage in the business of insurance; fraudulent or dishonest practices in the conduct of business under the license or permit; and, a plea of nolo contendere to a felony involving moral turpitude. Section 626.611(7),(9) and (14), Florida Statutes. At hearing, Riley entered a plea of no contest to Count II of the Administrative Complaint in exchange for the Department's dismissal of Count I of the Administrative Complaint and the Department's agreement that the penalty imposed would be limited to a suspension of his eligibility for licensure for a period of two (2) years. While not conditioning his agreement to a two year suspension, Riley did request that the Department consider crediting the time he has been on probation against the two year suspension. The evidence shows that Riley was arrested and charged with the subject offense in March 1985, that he entered a plea of nolo contendere, that adjudication of guilt was withheld, and that he was placed on probation for 18 months commencing September 16, 1985. As a special condition of probation, Riley was ordered not to apply for an adjuster's license during the term of his probationary period. Consistent with the terms of his probation, Riley has not renewed his adjusters' license. The Department's records reflect that Riley's license was last due for renewal, but not renewed, on April 1, 1985.
