Findings Of Fact Petitioners and Respondent have stipulated to the following facts: Petitioners Piccirillo and Adams have PPRD's established under the Objective Parole Guidelines Act to be September 30, 1986 and November 11, 1991 respectively. Respondent has not conducted effective parole release date interviews for Petitioners Piccirillo and Adams or otherwise reviewed their PPRD's for the purpose of establishing their effective parole release dates. Petitioners Piccirillo and Adams are entitled to receive effective parole release date interviews in the future prior to the time their presumptive parole release dates arrive. Additional findings of fact are as follows: The three Petitioners were all inmates at Union Correctional Institution, Raiford, Florida in the custody of the Department of Corrections at the time of final hearing. Petitioner Fasenmyer's established PPRD of April 19, 1982 was extended by Respondent by 60 months pursuant to statutory authority contained in Section 947.18, Florida Statutes, by an order entered May 10, 1982. This action was taken at an effective parole release review of Petitioner Fasenmyer's case and followed his effective parole release date interview. Respondent's order rendered May 10, 1982 recited the Commission's reasons for refusing to authorize Petitioner Fasenmyer's EPRD and for extending his PPRD 60 months to April 13, 1987. Petitioner Fasenmyer sought appellate review of the commission's order in the First District Court of Appeal and that court, on its own accord, relinquished temporary jurisdiction to the commission to conduct another review of his case for purposes of adequately explaining the reasons for denial of appellant's parole and to report its findings, pursuant to such review, to the court. On remand, the full commission entered an order on July 5, 1983 pursuant to procedures identical to and now incorporated in the challenged rules refusing to authorize Petitioner Fasenmyer's EPPD, reinstating his PPRD of April 19, 1982, and scheduling him for further consideration in December, 1983.
Findings Of Fact At all times here relevant Shirley R. Bennett was employed by DHRS as a Detention Care Worker I. In August 1982 Bennett was injured at work while breaking up a fight between two inmates at the Detention Center. She was placed on workers' compensation and remained off duty until the doctor treating her said she was able to return to work. Petitioner remained away from her work station and called in to say she was too sick to come to work. On October 10, 1984, Jerry McDonald, Assistant Detention Superintendent, called Bennett and told her that for sick leave to be granted she had to bring in a certificate from a doctor. Bennett indicated she would do so. On October 11, 1984, McDona1d again called Bennett and repeated his message about her needing a doctor's certificate for sick leave to be granted. On October 16, 1984, McDonald again called Bennett about needing a doctor's certificate for sick leave to be granted and that if she remained on unauthorized absence for three consecutive days she would be terminated for having abandoned her position. At this time Bennett said she was too sick to come in. McDonald told her to mail in the doctor's certificate. No such certificate was ever received by the Respondent. October 16, 1984, was a workday for Petitioner and she was scheduled to be off duty on the 17th but to work October 19 through 22, inclusive. Petitioner failed to report for work on any of those days and never presented a doctor's certificate saying she was unable to work because of illness. By letter dated October 24, 1984, sent to Petitioner by certified mail, Petitioner was notified by Respondent that her resignation by reason of abandonment was being processed and of her right to petition for review within 20 days. Petitioner's request for review dated November 7, 1984, was timely filed.
The Issue Whether an alleged policy of the Respondent constitutes an unpromulgated "rule" which is an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners, David Ansgar Nyberg and Walter William Harris, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are housed in Marion Correctional Institution. The Petitioners are subject to the rules and policies of the Respondent. The Petitioners were sentenced pursuant to Section 775.082(1), Florida Statutes. The Petitioners were both denied a requested transfer from Marion Correctional Institution to Zephyrhills Correctional Institution, a level 5A institution. The Petitioners have standing to institute these proceedings. The Respondent. The Respondent, the Department of Corrections, denied a recommendation that the Petitioners be transferred from Marion Correctional Institution to Zephyrhills Correctional Institution. The Respondent, through employees of the Respondent located at its central office (including Fred Roesel and James G. Mitchell), decides where inmates are housed and makes decisions concerning requests for transfers between institutions. The Alleged Policy. In the Initial Complaint filed in case number 91-6189RU and in the Initial Petition filed in case number 91-7540RU, and at the commencement of the formal hearing, Mr. Nyberg indicated that the alleged policy which he believes exists and that the Petitioners are challenging in this proceeding is essentially the following: Any inmate sentenced to prison in Florida pursuant to Section 775.082(1), Florida Statutes, is prohibited from being housed in any institution of the Respondent classified as a level 5A or lower numbered institution regardless of the inmates custody classification, the amount of time the inmate has served, the inmate's behavior or the recommendation of the superintendent of the institution the inmate is housed in. Section 775.082(1), Florida Statutes, provides the following: A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole unless the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, and in the latter event such person shall be punished by death. The Evidence Failed to Prove the Existence of the Alleged Policy. The evidence failed to prove that the precise alleged policy challenged by the Petitioners as stated in finding of fact 8 is an existing policy of the Respondent. The institutions in which inmates are housed by the Respondent are classified as level one through level seven institutions. Generally, the higher the level of an institution, the greater the security. There are four custody grades for inmates: minimum, medium, close and maximum. An inmate's classification determines the security risk of that particular inmate. In determining which institution an inmate should be housed in, the Respondent has a general policy, as specified by Chapter 33-6, Florida Administrative Code, to consider many factors, including custody grades, the offense for which sentenced, the type of facility that is recommended and the medical grade of the inmate. It is not the policy of the Respondent to exclude an inmate from being housed in a level 5 or lower level institution without taking into account the inmate's custody grade merely because the inmate was sentenced pursuant to Section 775.082(1), Florida Statutes. The Respondent apparently has a policy of not placing inmates in a level 5A institution if, among circumstances not relevant here, the following circumstances exist: The inmate has been classified as close custody grade; and The inmate is serving a life sentence with a mandatory twenty-five years. The apparent policy set out in finding of fact 15 is contained on page 23 of a document referred to as the "Custody Classification Instructions." The apparent policy as set out in the Instructions, unlike the policy challenged by the Petitioners, takes into account, and is based upon, the custody grade of the inmate. Therefore, the apparent policy set out in finding of fact 15 is inconsistent with the policy challenged by the Petitioners and supports a conclusion that the policy challenged by the Petitioners does not exist. An inmate who has been sentenced pursuant to Section 775.082(1), Florida Statutes, may be housed in a level 5 or lower level institution as long as the inmate is not classified as close custody. The reason for not housing close custody inmates who meet any of the conditions set out on page 23 of the Custody Classification Instructions in a level 5 or lower level institution is that close custody inmates have not been assigned release dates and, therefore, constitute a greater security risk. The evidence failed to prove that the Custody Classification Instructions are contrary to, or inconsistent with, the provisions of Chapter 33-6, Florida Administrative Code. Denial of Mr. Nyberg's Recommended Transfer. It was recommended by personnel at Marion Correctional Institution that Mr. Nyberg be transferred to Zephyrhills Correctional Institution. Mr. Nyberg was classified as close custody at the time the transfer request was made. The recommended transfer of Mr. Nyberg was denied by the Respondent through its Classification Department in Tallahassee, Florida. In light of the fact that Mr. Nyberg was sentenced pursuant to Section 775.082(1), Florida Statutes, and was classified in a medium custody grade at the time his transfer request was denied, Mr. Nyberg apparently concluded that the denial of his transfer was based upon the challenged policy. The evidence failed to prove this conclusion is correct. The evidence proved that Mr. Nyberg's transfer was denied after consideration of the length of time he has been in Marion Correctional Institution, the location of his current institution, the recommended time between transfers and the facility recommended. The evidence failed to prove that Mr. Nyberg's transfer was denied because of the alleged policy challenged by the Petitioners: his transfer was not denied solely because he was sentenced pursuant to Section 775.082(1), Florida Statutes and without regard to his custody grade. Denial of Mr. Harris' Transfer. The Respondent also denied a requested transfer to Zephyrhills Correctional Institution of Mr. Harris. A teletype from the Tallahassee office of the Respondent indicated the following concerning the denial of Mr. Harris' transfer: Transfer to Zephyrhills was disapproved 8-14-91, ACI is now a Category 5-A, cannot house life with 25- mandatory. This explanation was also included as the response from Mr. Harris' classification officer, Simon Ponder, on the form DC-3005 (the request for transfer form) (Petitioner's exhibit 2) filed by Mr. Harris. Mr. Ponder, who is not involved in formulating policies of the Respondent, assumed during the formal hearing that the rational given for denying Mr. Harris' transfer was the same rational for denying Mr. Nyberg's transfer. Mr. Ponder did not testify that he had any personal knowledge of the reason why Mr. Nyberg's transfer was denied, however. At best the evidence concerning Mr. Harris' denied transfer tends to prove that Mr. Harris' transfer was denied because he is serving a life sentence with a mandatory twenty-five years and because he is classified as close custody. Therefore, the denial of Mr. Harris' requested transfer was not made without regard to his custody classification which is an essential factor in the alleged policy challenged by the Petitioners. The evidence failed to prove that Mr. Harris' transfer was denied because of the alleged policy challenged by the Petitioners: his transfer was not denied solely because he was sentenced pursuant to Section 775.082(1), Florida Statutes and without regard to his custody status. Denial of David Ray Martin's Transfer. The Respondent denied a transfer to Zephyrhills Correctional Institution of David Ray Martin, another inmate. A teletype was sent to the Tallahassee office of the Respondent by Charles Manning, a correctional probation officer II, in which Mr. Manning indicated the following concerning the Mr. Martin's transfer: Subject was recommended for Zephyrhills CI for a good adjustment transfer. Please note that he has a 25-year mandatory; and, therefore, does not meet the criteria for a Category 5-A institution. Please divert to Polk CI 580, and excuse the error. Thanks, Chuck. Mr. Manning, who is not involved in establishing policy for the Respondent, admitted at the formal hearing that he had incorrectly assumed when he sent the teletype quoted in finding of fact 30 that the Respondent had such a policy. Mr. Manning's incorrect assumption concerning the policy of the Respondent was probably based upon the language of the Custody Classification Instructions concerning inmates classified as close custody who are serving a life sentence with a mandatory twenty-five years. Mr. Manning apparently confused the policy which may be evidenced in the Custody Classification Instructions with the alleged policy at issue in this proceeding. Conclusion. The Petitioners have failed to prove that the Respondent has a policy that inmates who are sentenced pursuant to Section 775.082(1), Florida Statutes, may not be housed in a level 5 or lower numbered level institution without regard to the custody classification of the inmate, the amount of time the inmate has served, the inmate's behavior or the recommendation of the superintendent of the institution the inmate is housed in. At best the Petitioners presented evidence which may support a finding that the Respondent has a policy that inmates who are classified as close custody and who are serving a life sentence with a mandatory twenty-five years may not be housed in a level 5A institution. That is not the policy being challenged by the Petitioners, however, and no such finding of fact is necessary to dispose of these cases.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against her and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, including the "[s]tipulated [f]acts" contained in the parties' Prehearing Stipulation,2 the following findings of fact are made: Respondent is now, and has been since February 18, 2003, certified as a correctional officer in the State of Florida. She holds Correctional Certificate Number 229286. At all times material to the instant case, Respondent was employed by the Florida Department of Corrections (Department) as a correctional officer and assigned to the South Florida Reception Center (SFRC), a "transient institution for inmates that are [transferring] from one facility to another." Sergeant Shirley McLain is now, and was at all times material to the instant case, employed by the Department as a correctional officer and assigned to SFRC. Respondent and Sergeant McLain have known each other since the time they attended the correctional academy together. In August of 2005, Respondent was responsible for supervising inmates working on the "outside grounds" of SFRC, while Sergeant McLain oversaw the operations of the SFRC property room, where personal items taken from inmates are brought and stored until they are returned or other otherwise disposed of. Sergeant McLain "never supervised" Respondent. In August of 2005, Ricardo Bigio was an inmate at SFRC. Shortly after his arrival at the facility, he had a watch and chain confiscated from him. He was permitted to send these items home. Two days later, Sergeant McLain found Inmate Bigio in possession of another watch and another chain. Upon being told by Inmate Bigio, in response to her questioning, that he had obtained these items "through visitation," Sergeant McLain informed him, since these items were brought into the institution "illegally," they were "now contraband" and he could not have them "sen[t] . . . home." At the suggestion of a fellow inmate, Inmate Bigio approached Respondent and asked her to "speak to Sergeant McLain to see if she would let [him] send [this confiscated] jewelry home." During their conversation, Respondent mentioned to Inmate Bigio that "her dad needed a car." Inmate Bigio told Respondent that, if Respondent spoke to Sergeant McLain about his jewelry, he "would be able to send her to somebody [he knew in the used car sales business] to get a good deal on a car" for her father. Respondent agreed to help Inmate Bigio by speaking to Sergeant McLain about sending his jewelry home. Respondent and Inmate Bigio then went to Sergeant McLain's office, where Respondent asked Sergeant McLain if she would "let[] [Inmate Bigio] send this chain and this watch home," an act that that Respondent believed was within Sergeant McLain's power as the officer in charge of the SFRC property room. Sergeant McLain responded to Respondent's request in the negative. Respondent said, "Okay," and then left with Inmate Bigio. Respondent returned to Sergeant McLain's office with Inmate Bigio "off and on" for the next three or four days to repeat her request that Sergeant McLain allow Inmate Bigio to send his jewelry home. On each occasion, in response to the request, Sergeant McLain reiterated that the jewelry "was contraband and [therefore Inmate Bigio] could not send it home." On August 10, 2005, approximately a week after she had first raised the matter with Sergeant McLain, Respondent once again asked Sergeant McLain to permit Inmate Bigio to send his jewelry home. This time, in making her request, Respondent revealed her motivation for interceding on Inmate Bigio's behalf. She explained to Sergeant McLain that, if Sergeant McLain granted the request and allowed Inmate Bigio to send his jewelry home, Inmate Bigio would make the necessary arrangements with his "people [who] own[ed] a car lot" to enable Respondent to purchase for her father a $5,000.00 car for only $2,000.00. Respondent provided this explanation as to why she was taking up Inmate Bigio's cause in the hopes that Sergeant McLain's having this information would make Sergeant McLain more inclined to grant the permission Respondent was requesting on Inmate Bigio's behalf. Sergeant McLain was taken aback that Respondent would strike such a deal with an inmate. She advised Respondent, as she had in response to Respondent's previous requests, that Inmate Bigio would not be permitted to send his jewelry home.3 Sergeant McLain subsequently reported the incident to the SFRC assistant warden. Inspector Arlethia Clark with the Department's Inspector's General Office subsequently investigated the matter. As part of her investigation, Inspector Clark interviewed Respondent on November 17, 2005. Respondent was placed under oath for the interview. Respondent told Inspector Clark that Sergeant McLain, in describing her August 10, 2005, conversation with Respondent, had "twisted the story around." Respondent knowingly made the false claim that she had gone to Sergeant McLain merely to report the illicit offer that Inmate Bigio had made and to seek guidance from Sergeant McLain "as a supervisor" as to what to do, not to persuade Sergeant McLain to allow Inmate Bigio to send his jewelry home so that she would be able to purchase a car for her father at a discount (which, in fact, contrary to Respondent's sworn statement to Inspector Clark, was the actual reason she had gone to Sergeant McLain). Inspector Clark also interviewed Inmate Bigio and Sergeant McLain. Based on the findings of her investigation, Inspector Clark "found that there was bartering between, or an attempt to barter between," Inmate Bigio and Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding Respondent guilty of Allegations One and Two and, based on these findings of guilt, revoke her certification. DONE AND ENTERED this 12th day of July, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 12th day of July, 2007.
Findings Of Fact The parties stipulated that Petitioner, Gary N. Piccirillo, was afforded a presumptive parole release date interview on May 14, 1982. Thereafter, on June 9, 1982, Respondent, Florida Parole and Probation Commission (FPPC), considered Petitioner's presumptive parole release date (PPRD) and set it for September 30, 1986. On June 28, 1982, Petitioner sought review of his established PPRD pursuant to Rule 23-21.12, Florida Administrative Code, and Section 947.173, Florida Statutes. In November 1983, a special parole interview was granted Petitioner, but the Commission at that hearing declined to change or modify Petitioner's PPRD. Petitioner's next biennial interview for review of his PPRD is scheduled for September 1984. However, Petitioner is currently scheduled to be released from confinement in either September or October 1984, if he is given credit for all earned gain time. Petitioner questions that portion of the rule which provides for only one review of the Commission action establishing or changing the PPRD, but apparently fails to recognize that portion which also provides for subsequent (biennial, special, or effective) establishments of PPRD, which tend to ensure at least periodic reviews of the PPRD. Petitioner attacks the validity of the rule, as amended on October 1, 1982, as it pertains to Sections (1)(e) and (2). He contends that (1)(e), which calls for verification of written or printed evidence provided directly by the inmate and notification to the proper state attorney if any of this evidence is invalid because it constitutes a threat of a penalty, which tends to inhibit the average inmate from presenting evidence he might otherwise present. Petitioner does not question the propriety of reporting false information, only the inclusion of a basis for doing so within the rule. Petitioner also contends that that portion of Paragraph (2) of the rule which provides that the Respondent will not address matters within certain categories, unless new factual information came into existence after the initial interview, is unfair, unduly restrictive, and places an unreasonable burden on prisoners who would be unprepared psychologically to present all their information at the initial interview in its best light. Petitioner contends that after the newness of incarceration wears off and the individual is more comfortable with the system, he would be better prepared to present this information again.
The Issue The two issues in this case are whether the Petitioner had been convicted of an offense involving assault, battery, or force on a person except in self- defense, and whether he concealed this on his application.
Findings Of Fact The Petitioner, Harry Paul Hett, applied to the Department of State for licensure as an unarmed security guard. The Department denied Petitioner's application. The parties stipulated that, except for the grounds stated by the Department in its letter of denial which are at issue, the Petitioner is qualified for licensure. In 1977, Petitioner was arrested for rape. While awaiting trial, he entered a plea under the mentally disordered sex offender statute, was found guilty, and was sent to Florida State Hospital on August 29, 1977. Subsequently, he was released from Florida State Hospital upon a determination that he was competent. Because it was determined the Petitioner was not qualified as a mentally disordered sex offender and had been adjudicated guilty, on June 1, 1978, he was placed on 15 years probation. As part of his probation, Petitioner was ordered to continue outpatient care. On February 6, 1981, an affidavit of probation violation was filed against the Petitioner. He was arrested on March 9, 1981, and charged with lewd and lascivious conduct (child molestation) and probation violation. On March 26, 1981, Petitioner pled guilty to probation violation and was sentenced to five years in Florida State prison with credit for time previously served. The Petitioner was released early in 1983 and subsequently was employed as an unarmed security guard. Petitioner's application revealed his arrest for lewd and lascivious conduct, which was dealt with by the court as part of the Petitioner's probation violation. On September 25, 1981, while being held by the authorities in Hillsborough County, the Petitioner was held in contempt by the court in Pinellas County, Florida, for failure to appear. When the Petitioner must recall the events which surrounded his arrest for lewd and lascivious conduct, he becomes emotionally upset. At the hearing, this affected his recollection of those events surrounding his offenses. Because he has back problems, Petitioner cannot obtain employment as a laborer. While working as an unarmed security guard, the Petitioner was assigned to a variety of posts such as the local colosseum, malls, and shopping centers. Petitioner has a history of inappropriate sexual conduct associated with alcohol abuse. At the time of this hearing, the Petitioner was not attending any counseling sessions or Alcoholics Anonymous meetings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of State deny licensure as an unarmed security guard to the Petitioner. DONE and RECOMMENDED this 7th day of November, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1983. COPIES FURNISHED: Mr. Harry Paul Hett 7317 Las Palmas Court Tampa, Florida 33614 Stephen Nall, Esquire Office of General Counsel Department of State The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
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.
The Issue Whether Rules 33-3.0081(9)(l), 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners, William Van Poyck, Mike Ramadanovic and Kenneth Boudreaux, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are subject to the rules of the Respondent, including the rules challenged in these cases, Rules 33-3.0081(9)(l), 33-3.0083(9)(i), and 33-3.0084(1)(n), Florida Administrative Code (hereinafter referred to as the "Challenged Rules"). Petitioner Van Poyck is on death row, which is considered administrative confinement. All exercise privileges for Petitioner Van Poyck have been suspended for almost three years. Petitioner Ramadanovic at the time of the final hearing was in close management confinement. All exercise privileges for Petitioner Ramadanovic have been suspended for almost one year. Petitioner Bourdreaux at the time of the final hearing was in close management confinement. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. The Challenged Rules. Rule 33-3.0081(9)(l), Florida Administrative Code, governs exercise of inmates who have been placed in "administrative confinement". Administrative confinement is the removal of an inmate from the general inmate population for one or more specified reasons. Rule 33-3.0081(1), Florida Administrative Code. Rule 33-3.0081(9)(l), Florida Administrative Code, provides the following: (l) Exercise -- Those inmates confined on a 24-hour basis excluding showers and clinic trips may exercise in their cells. However, if confinement extends beyond a 30-day period, an exercise schedule shall be implemented to ensure a minimum of two hours per week of exercise out of doors. Such exercise periods shall be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts can document such exercise periods should not be granted. The superintendent or assistant superintendent may restrict exercise for an individual inmate when the inmate continues to pose a serious threat to the safety, security and order of the institution by recent demonstrations of violence, by continuing threats of physical harm, written and spoken, toward staff and other inmates; by involvement in acts which seriously interfere with the staff's daily security functions, or by actions demonstrating an extreme escape risk. Inmates shall be notified in writing of this decision and may appeal through the grievance procedure. The denial of exercise shall be for the shortest length of time to accomplish the goal of safety, security and order within the institution and shall be documented on Form DC4-814. Medical restrictions may also place limitations on the exercise periods. Recreational equipment may be available for the exercise period provided such equipment does not compromise the safety or security of the institution. Rule 33-3.0083(9)(i), Florida Administrative Code, governs exercise of inmates who have been placed in "close management". Close management is the "long-term single cell confinement of an inmate apart from the general inmate population, where the inmate, through his own behavior, has demonstrated an inability to live in the general population without abusing the rights and privileges of other inmates or disturbing the security, order or operation of the institution." Rule 33-3.0083(1), Florida Administrative Code. Rule 33-3.0083(9)(i), Florida Administrative Code, provides the following: Exercise -- Those inmates confined on a 24-hour basis, excluding showers and clinic trips, may exercise in their cells. However, if confinement extends beyond a 30-day period, an exercise schedule should be implemented to ensure a minimum of 2 hours per week of exercise outside of cell. Such exercise periods will be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts can document such exercise periods should not be granted. Medical restrictions may also place limitations on the exercise periods. Recreational equipment may be available for the exercise period provided such equipment does not threaten the safety or security of the institution. Rule 33-3.0084(1)(n), Florida Administrative Code, governs exercise of inmates who have been placed in "disciplinary confinement". Rule 33-3.0084(1)(n), Florida Administrative Code, provides the following: (n) Exercise -- Those inmates confined on a twenty- four hour basis (excluding showers and clinic trips) may exercise in their cells. However, if confinement extends beyond a thirty-day period, an exercise schedule should be implemented to ensure a minimum of two hours per week of exercise outside of the cell. Such exercise periods should be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts show that such exercise periods should not be granted. Restrictions may also be placed on the exercise periods by medical staff. The reason for any exercise restrictions shall be documented. Period of Outdoor Exercise. The Challenged Rules all provide that inmates may exercise in their cells and that "a minimum of two hours per week of exercise outside of the cell" should be provided to inmates in administrative confinement, close management and disciplinary confinement. Unless specified otherwise, all references to "inmates" in this Final Order are to an inmate in administrative confinement, close management or disciplinary confinement. At Florida State Prison, non-death row inmates subject to the Challenged Rules are given an opportunity to attend one, two-hour exercise session a week. If an inmate misses a session for medical or attorney "call out", a holiday or inclement weather, the session is not made up. The Challenged Rules do not specifically require that missed sessions be made up. On their face, the Challenged Rules provide that two hours of exercise should be provided without indicating any exceptions. Rule 33-3.0081(9)(l), Florida Administrative Code, is mandatory: two-hours of exercise must be provided each week. The amount of time inmates are allowed to exercise is affected by the budget and staff of the Respondent. Because of lack of funds and staff, the Respondent is not able to provide more exercise time to non-death row inmates subject to the Challenged Rules. At Florida State Prison, a maximum security prison, there are thirteen wings housing inmates. Ten wings house inmates (including four housing inmates on death row) in various types of confinement status. Nine of the ten wings have a separate area, referred to as a "yard", in which inmates may exercise outdoors. There are two correctional officers on duty at each of the yards during the outdoor exercise period for non-death row inmates subject to the Challenged Rules. One sergeant also rotates between the yards. Four to five correctional officers are required to take inmates in and out of the yards. Each inmate must be strip searched, handcuffed with his hands behind his back and then escorted into the yard. Exercise Yards. The Challenged Rules do not specify the size of the area in which outdoor exercise to be provided to inmates. The Challenged Rules also do not specify the number of inmates that may be placed in an area for outdoor exercise. Yards at Florida State Prison consist of a fenced concrete slab. The yards for non-death row inmates are approximately 24' by 33', or 792 square feet. Usually 17 inmates are placed in the yard next to the inmates' wing at a time. The number of inmates in the yard on occasion may be 20 to 25. This is the exception, rather than the rule. Recreational Equipment. The Challenged Rules do not require that recreational equipment be provided to non-death row inmates. Rules 33-3.0081(9)(l) and 33-3.0084(1)(n), Florida Administrative Code, provide that recreational equipment may be available for the exercise period if it does not compromise the safety or security of the institution Rule 33-3.0083(9)(i), Florida Administrative Code, is silent concerning recreational equipment. Recreational equipment is not provided to inmates during exercise at Florida State Prison. Inmates tend to fight over recreational equipment and to abuse it when it is provided. In light of the findings of fact, infra, concerning death row inmates, the evidence failed to prove that the failure to provide non-death row inmates with recreational equipment is arbitrary or capricious. Although there is a rational and reasonable reason for not providing recreational equipment to inmates who have proven to be a disciplinary problem (including some death row inmates) the Respondent is evidently prohibited from withholding recreational equipment for death row inmates by court decree. No such decree applies to non- death row inmates. Yard Suspension. The Challenged Rules provide that exceptions to the provision for outdoor exercise may be made "only when clear and compelling facts can document such exercise periods should not be granted." Rule 33-3.0083(9)(i), Florida Administrative Code. Rules 33-3.0081(9)(l) and 33-3.0084(1)(n), Florida Administrative Code, contain very similar language. Rules 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, do not specify who may decide who is to be denied exercise in the yard, referred to as being placed on the "yard suspension list", or the specific reasons for placing an inmate on such a list. The various institutions are given discretion to decide who will place an inmate on the yard suspension list and the reasons for such suspensions. Rules 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, also do not specify the procedures for placing an inmate on the yard suspension list, do not require periodic review of the list, do not specify a maximum period of time an inmate may be on the list and do not specify the conditions which must be met for an inmate to be removed from the yard suspension list. Rule 33-3.0081(9)(l), Florida Administrative Code, provides who may restrict exercise, requires that there be a "serious threat to the safety, security and order of the institution by recent demonstrations of violence, by continuing threats of physical harm, written and spoken, toward staff and other inmates" and other acts, requires that inmates be notified in writing and provides that denial of exercise be for the shortest length of time possible. There is a list of inmates at Florida State Prison who have been denied yard exercise. Inmates are placed on the yard suspension list because of security problems similar to those specified in Rule 33-3.0081(9)(l), Florida Administrative Code, caused by an inmate. The procedure for placing an inmate on the yard suspension list is as follows: The chief security officer recommends that an inmate be placed on the list. The recommendation of the chief security officer is reviewed by a team of senior correctional officers and the superintendent. The superintendent makes the final decision of whether an inmate is placed on the yard suspension list. Any inmate placed on the list is notified in writing and may appeal the decision through the grievance procedure. Chapter 33-29, Florida Administrative Code. The following procedure is followed to determine whether an inmate is removed from the yard suspension list: The list is reviewed monthly by the team of senior correctional officers that recommends the placement of an inmate on the list. If an inmate's behavior demonstrates that he has adapted to the institution and is no longer acting out in such a manner to create a security problem, a recommendation is made to the superintendent to remove the inmate's name from the list. The superintendent makes the final decision of whether an inmate's name is removed. Inmates are placed on the yard suspension list for the shortest period of time necessary to accomplish the goal of changing the inmate's behavior and to eliminate the threat to security caused by the inmate. Inmates on the yard suspension list are still allowed to exercise in their cells. Although cells are small and exercise is not necessarily easy in the cells, inmates may do elevated push-ups, step-ups, and jog in place. There are at any given time approximately 100 inmates at Florida State Prison on the yard suspension list. Inmates may be kept on the yard suspension list for years. Inmate Jimmy Stephens has been on the yard suspension list since February, 1990, and was previously on the yard suspension list for over fifteen years. Petitioner Van Poyck was placed on the yard suspension list upon his arrival at Florida State Prison on December 28, 1988, and remained on the list until January 7, 1992. Death Row Inmates. Inmates on death row are in administrative confinement and are, therefore, subject to Rule 33-3.0081(9)(l), Florida Administrative Code. Inmates on death row are provided two, two-hour exercise sessions each week. A total of four hours of exercise. If an exercise session is missed by a death-row inmate, the session is made up. The yards provided to death row inmates are larger than the yards provided to non-death row inmates. The yards for death row inmates at Florida State Prison are 71' by 69' (4,899 square feet), 80' by 64' (5,120 square feet), 62' by 91' (5,642 square feet) and 74' by 80' (5,920 square feet). Approximately 24 to 30 death row inmates are placed in the yard next to the inmates' wing at a time. Death row inmates are provided with a variety of recreational equipment. The amount of exercise time, the size of the yards and the amount of recreational equipment provided to death row inmates was agreed to in a consent decree in a federal court proceeding involving the Department of Corrections.
Findings Of Fact I find the following facts based on the facts admitted by both parties in the Prehearing Stipulation filed on May 22, 1987. Florida Administrative Code Chapter 33, as found in the Florida Administrative Code Annotated, through the March 1987 supplement, is true and correct. The Petitioner's current address is Douglas M. Jackson, Inmate Number 823916, Florida State Prison, Post Office Box 747, Starke, Florida 32091. The Respondent's name and address is Florida Department of Corrections, 1311 Winewood Boulevard, Tallahassee, Florida 32399-2500. The Department rule on which an administrative determination is sought is Florida Administrative Code Rule 33-3.007, "Inmate Grievance Procedure." The statutory provision on which the above Department rule is based is Section 944.331, Florida Statutes, which states: The department shall establish by rule an inmate grievance procedure which shall conform to the Minimum Standards for Inmate Grievance Procedures as promulgated by the United States Department of Justice pursuant to 42 U.S.C. s. 1997e. The ten (10) days in Florida Administrative Code Rule 33-3.007(13), which deals with the filing of appeals of grievances, are "10 calendar days." This can include two weekends (a total of four days) when mail is not normally picked up at the prisons or delivered in the Office of the Secretary. If an inmate receives his institutional response on a Friday that is dated for the previous day (Thursday), his response must be received in Tallahassee by the following Friday. (The second Sunday following would be ten (10) days from the date of the institutional grievance, but the Central Office Inmate Grievance Administrator does not work on Saturday or Sunday to receive and log inmate grievance appeals). Florida Administrative Code Rules 33-3.007(6)(a) and (7) require the availability of grievance forms at all Department institutions. If the inmate needs a day to obtain a grievance appeal form and prepare it, he will not be able to mail his appeal until Sunday. But, there is no mail service on Sunday so his grievance appeal will not be mailed until Monday at the earliest. This means the grievance appeal must get from the prison to the Office of the Secretary in four (4) days or it will be denied as out-of-time. Florida Administrative Code Rule 33-3.007(8) provides that: An extension of the 15-day period [to file at the institutional level] will 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 the grievance within the 15- day period. Florida Administrative Code Rule 33-3.007(15), which covers the filing of the grievance appeal, imposes an absolute requirement of ten (10) calendar days. No possibility exists under the rule, as promulgated, for the slightest extension of time for any possible reason, no matter how meritorious it might be. Florida Administrative Code Rule 33-3.007 does not inform the inmate that he must utilize the grievance procedure to exhaust his administrative remedies before he can file a petition for writ of habeas corpus, challenging the loss of gain time or confinement as a result of a disciplinary proceeding. Florida Administrative Code Rule 33-3.007 has been submitted to the United States Department of Justice for certification approval under the provisions of Section 944.331, Florida Statutes and 42 U.S.C. s. 1997e. Florida Administrative Code Rules 33-3.0025(11)(c), 33-3.012(1)(b)3, 33-3.012(4)(e), and Florida Administrative Code Chapter 33-22 have not been submitted to the United States Department of Justice for certification approval.