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 The Petitioner, Paul R. Layton, is an inmate presently confined at the Tomoka Correctional Institution, Daytona Beach, Florida. Given a choice the Petitioner would not wear his hair any longer than his collar. His personal feeling, however, is that the rule is used as a harassment technique and is used to dehumanize and institutionalize the prisoners. The Respondent's rationale for the rule is that requiring prisoners to keep their hair short aids in identification of the individual prisoners within the institution and in the event of an escape. Prisoners have attempted escapes by altering their appearance. The Department of Corrections, pursuant to the challenged rule, has required prisoners to cut their hair such that it is above their collar and off of their ears. The Department houses approximately 27,000 inmates, all of whom are required to wear similar uniforms. When a prisoner escapes, the Department of Corrections must provide a current photograph of the escaped prisoner to law enforcement agencies. Requiring short standardized haircuts substantially reduces the cost and difficulty such current photographs. Petitioner contended that the rule is discriminatory in that female inmates are not subjected to the same haircut standards. The majority of female inmates wear their hair long and when they change the length of their hairs they are rephotographed. Shorter hair is more sanitary for those prisoners who are involved in food preparation. Long hair can also constitute a safety hazard for those inmates who operate machinery.
Findings Of Fact The Respondent, Florida Parole and Probation Commission, adopted revised rules of practice and procedure which became effective on September 10, 1981. Among these is Rule 23-21.09, Florida Administrative Code, which establishes "matrix time ranges" that are used in determining presumptive parole release dates for persons who are serving prison terms. In determining presumptive parole release dates, the Respondent's rules require that a "salient factor score" be determined based upon such factors as the number of prior criminal convictions, the number of prior incarcerations, total time served in prisons, the inmate's age at the time of the offense which led to the first incarceration, the number of probation or parole revocations, the number of prior escape convictions, and whether burglary or breaking and entering is the present offense of conviction. The degree or severity of the present offense of conviction is then determined. The Respondent's Rule 23-21.09 sets guidelines for time ranges for presumptive parole release dates depending upon the severity of the present offense of conviction and the salient factor score. The more severe the present offense of conviction, the longer will be the period before the presumptive parole release date. Similarly, given the severity of the offense, the higher the salient factor score the longer will be the period before the presumptive parole release date. The rule replaced a rule which set different matrix time ranges. The new rule generally sets longer time ranges, but this is not uniformly true. The Petitioner, Seimore Keith, is an inmate presently incarcerated at Polk Correctional Institution, Polk City, Florida. Polk Correctional Institution is a facility maintained by the Florida Department of Corrections. Petitioner Keith was convicted of grand theft in July, 1980, and was sentenced to serve five years in prison. The conviction was the result of a guilty plea which was entered in accordance with a plea bargain. During plea negotiations, Petitioner Keith was advised that his presumptive parole release date under Florida Parole and Probation Commission rules would require that he serve no more than 25 months in prison. At the time that Petitioner Keith's presumptive parole release date was set by the Respondent, the new Rule 23-21.09 had come into effect, and the Petitioner's presumptive parole release date was set to require that he serve 32 months in prison. The Petitioner, Ronnie McKane, is presently incarcerated at Polk Correctional Institution. He was convicted of the offense of armed robbery in February, 1981. Under rules in effect when he was sentenced, which was prior to the adoption of Rule 23-21.09, Petitioner McKane's presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rule was applied by Respondent in setting McKane's presumptive parole release date. The Petitioner, Daniel P. Hull, is presently incarcerated at Polk Correctional Institution. He was convicted in September, 1971, of the offense of robbery and sentenced to serve ten years in prison. He was paroled in 1974, but was reincarcerated as a result of a parole violation in 1976. In 1977 he escaped, and was recaptured in January, 1981. On June 1, 1961, Petitioner Hull was convicted of the offense of escape and sentenced to serve nine months. Under the rules in effect when he was sentenced, which was prior to the adoption of Rule 23-21.09, Hull's presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rules were applied by Respondent in setting Hull's presumptive parole release date, and it has been set subsequent to the expiration of his sentence. Hull will therefore be released when his sentence expires in March, 1982. The Petitioner, Douglas L. Adams, was convicted of the offenses of possession of marijuana and uttering a forged instrument, and sentenced in February, 1981, to two consecutive five-year sentences. Under the rules in effect when Adams was sentenced, which was prior to the adoption of Rule 23- 21.09, Adams' presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rule was applied by the Respondent in setting Adams' presumptive parole release date. During 1980, the Respondent directed its staff to begin considering proposed changes to its rules of practice and procedure. Various proposals were considered, and by September, 1980, a proposed rule package had been developed. The Respondent directed its staff to submit the proposed rule package to the Governor and members of the Cabinet, various pertinent legislators, county and circuit judges, prosecutors and public defenders, superintendents of each prison in the State, and to members of the Supreme Court and the district courts. The Commission opted to conduct various workshops throughout the State, and to invite all interested persons to share their input. Notices of the workshops were published in the Florida Administrative Weekly. The workshops were conducted, and the Commission commenced formal rule-making proceedings. Notice of rulemaking was published in the Florida Administrative Weekly, and hearings were scheduled. Notice of the formal rulemaking proceedings was also published in the St. Petersburg Times, the Pensacola Journal, the Tallahassee Democrat, the Orlando Sentinel-Star, and the Florida Times-Union. Persons who had requested specific notification were provided it. In response to this notice, the Respondent received considerable written input, and oral presentations were made at hearings that were conducted. The final hearing in the rule-making proceeding was conducted on June 19, 1981, and the rules, including Rule 23- 21.09, were thereafter adopted effective September 10, 1981. Notice of the proposed rule changes and of the formal rulemaking proceeding was not specifically disseminated to inmates at Florida's prisons. The proposed rules were for- warded to the superintendent of each facility. At some of the institutions the proposed rules were apparently posted. All persons who requested copies of the proposed rules from the Florida Parole and Probation Commission were provided them. Numerous prisoners and organizations that represent prisoners made input during the various states of the rulemaking proceeding. None of the Petitioners in this matter were specifically noticed of the rulemaking proceeding. One of the Petitioners had heard that rules were being proposed, and requested copies of them from members of the Legislature or from Department of Corrections personnel. None of the Petitioners requested copies of the proposed rules from the Respondent or anyone connected with the Respondent.
The Issue Whether Rule 33ER91-3, Florida Administrative Code, constitutes an invalid exercise of delegated authority? Whether a proposed amendment to Rule 33-6.0045(2), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, David Ansgar Nyberg, is an inmate in the custody of the Respondent, the Department of Corrections, at Marion Correctional Institution. The Petitioner is subject to the rules of the Respondent, including the rules at issue in this proceeding. The Petitioner is not currently eligible for minimum custody classification even if the rules at issue did not apply to the Petitioner. Nor was the Petitioner eligible for minimum custody during the period of time that the policy challenged in case number 91-6699RX was in effect or the period of time during which the Emergency Rule applied. 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 Emergency Rule and Rule 33-6.0045(2)(g), Florida Administrative Code. Rule 33-6.0045, Florida Administrative Code, establishes custody classifications for inmates. Custody classifications determine, among other things, the facility to which an inmate may be assigned and the degree of security an inmate is subjected to. Inmates are classified as minimum, medium, close or maximum custody, with minimum being the least restrictive and maximum being the most restrictive. The procedure to be followed in classifying each inmate is provided in Rule 33-6.0045(2), Florida Administrative Code. The Emergency Rule and the Proposed Rule amend Rule 33-6.0045(2), Florida Administrative Code, by adding three paragraphs, including the following pertinent paragraph challenged by the Petitioner: (g) Any inmate who has been certified as a mentally disordered sex offender pursuant to ch. 917, FS shall not be assigned to minimum custody status unless they have successfully completed the mentally disordered sex offender program. The Emergency Rule and the proposed amendment to Rule 33-6.0045, Florida Administrative Code (hereinafter referred to as the "Proposed Rule"), include the same substantive amendments to Rule 33-6.0045, Florida Administrative Code. The Emergency Rule was only effective during part of 1991, prior to promulgating the Proposed Rule. Relevant Effect of the Emergency Rule and the Proposed Rule. Chapter 917, Florida Statutes (1975), which is titled "mentally disordered sex offenders" provided, in pertinent part, the following: 917.14 Certifying defendant for hearing.-- The court may suspend the sentence and certify a defendant for a hearing and examination in the circuit court to determine whether the person is a mentally disordered sex offender if: The person is convicted of a felony or misdemeanor for which he is currently being prosecuted, whether or not the crime is a sex offense; There is a probable cause to believe that the person is a mentally disordered sex offender; and The mental disorder has existed for at least the immediately preceding 4 months. The court may certify a person under subsection (1) on its own motion, on motion by the State Attorney, or on application by affidavit of the defendant. A "mentally disordered sex offender" is defined in Section 917.13, Florida Statutes (1975), as follows: "Mentally disordered sex offender" means a person who is not insane but who has a mental disorder and is considered dangerous to others because of a propensity to commit sex offenses. Any person determined to be a mentally disordered sex offender was to be committed "to the custody of the Department of Offender Rehabilitation for care, treatment, and rehabilitation." Section 917.19, Florida Statutes (1975). The definition of a "mentally disordered sex offender" was modified in 1977. Pursuant to Section 917.13, Florida Statutes (1977), a "mentally disordered sex offender" was defined as follows: A "mentally disordered sex offender" or "offender is a person who: Has been convicted of or pleaded guilty or no contest to a sex offense or attempted sex offense in a current prosecution; Suffers from a nonpsychotic mental or emotional disorder, yet is competent; and Is likely to commit further sex offenses if permitted to remain at liberty. Subsequent to 1977, the classification of an offender as a mentally disordered sex offender was repealed. Pursuant to the Emergency Rule and the Proposed Rule, any person who has been determined to be a mentally disordered sex offender who has NOT successfully completed the mentally disordered sex offender program may not be classified as minimum custody. The Statutory Authority for the Emergency Rule and the Proposed Rule. The specific authority for the Emergency Rule and the Proposed Rule is Sections 20.315, 944.09 and 958.11, Florida Statutes. The specific laws implemented by the Emergency Rule and the Proposed Rule is Sections 20.315, 921.20, 944.09 and 958.11, Florida Statutes. The Respondent intends to add by technical amendment the following additional statutory authority for the Emergency Rule and the Proposed Rule: Sections 944.17 and 944.1905, Florida Statutes. The Rationale for the Emergency Rule and the Proposed Rule. The immediate danger to the public health, safety and welfare which the Respondent indicated justified promulgating the Emergency Rule pursuant to Section 120.54(9), Florida Statutes, was set out in the Notice of Emergency Rulemaking: The rule is necessary in order to prevent convicted sex offenders, inmates certified as mentally disordered sex offenders, and aliens who are subject to deportation from being assigned minimum custody status. The department's current classification policy permits the classification of minimum custody for these inmates who, by their nature, present an extraordinary threat to public safety should they escape, or, in the case of aliens, present an inordinate escape risk because of the threat to deportation. The sex offenders being addressed are those who are or have been previously convicted of sex offenses listed in s.944.277(1), which are those sex offenses which exclude inmates from awards of provisional credits, and therefore identify them as a category of offenders who present a threat to public safety. The rule also addresses those persons certified as mentally disordered sex offenders under ch. 917 FS, who are considered dangerous to others because of a propensity to commit sex offenses. Experience has shown that one of the categories of inmates that are the greatest risk of escape are those subject to deportation, which in certain cases, would subject them to severe penalties in their native countries. Without an emergency rule, these categories of offenders could be reduced to minimum custody and permitted placement on public work squads or other outside work assignments with little or no supervision. The emergency rule presents a mechanism to ensure that these inmates are retained in a secure perimeter or under direct supervision. Although the Notice of Emergency Rulemaking indicates that there are only two inmates who are classified as mentally disordered sex offenders under Chapter 917, Florida Statutes, there may be more. The number referenced in the Notice does not include former inmates who have been released, with or without further supervision, who may commit offenses in the future which could result in their return to prison. Additionally, it is possible that Chapter 917, Florida Statutes, or a similar statute, could be enacted in the future resulting in the classification of additional inmates as mentally disordered sex offenders. In fact, Chapter 917, Florida Statutes, has been repealed and then reenacted in the past. Even if there are only two inmates classified as mentally disordered sex offenders, the evidence failed to prove that the potential threat from a single inmate classified as a mentally disordered sex offender is not sufficient justification for the Emergency Rule and the Proposed Rule. Although the Respondent was aware at the time of promulgating the challenged rules that the Emergency Rule and the Proposed Rule would apply to the Petitioner, who is one of the inmates currently in prison who is classified as a mentally disordered sex offender, the weight of the evidence failed to prove that the Respondent was "out to get the Petitioner." The Petitioner failed to prove that the Petitioner adopted the Emergency Rule or the Proposed Rule only because they apply to the Petitioner. The purpose for promulgating the Emergency Rule and the Proposed Rule was to protect the public. By the very definition of a mentally disordered sex offender under Chapter 917, Florida Statutes, persons determined to be mentally disordered sex offenders are considered likely to constitute a continuing threat. Pursuant to the definition of a mentally disordered sex offender contained in the 1975 statutes, such a person "is considered dangerous to others because of a propensity to commit sex offenses." Section 917.13, Florida Statutes (1975). As defined in the 1977 statutes, such a person "[i]s likely to commit further sex offenses if permitted to remain at liberty." Section 917.13(1)(c), Florida Statutes (1977). Persons classified as minimum custody are subject to less security. They may be placed on work programs which take them out of the institution. Allowing a person who has been determined by the courts of Florida to be likely to commit further sex offenses or to have a propensity to commit sex offenses and who have not completed programs intended to correct such tendencies, has the potential of placing the public at unnecessary risk. The Impact of the Emergency Rule and the Proposed Rule on the Petitioner and the Petitioner's Challenge. The Petitioner was charged with, and convicted of, first degree murder in 1975. He was sentenced to life imprisonment and was required to serve a minimum of 25 years. The Petitioner was not charged with any sex offense. Subsequent to the Petitioner's conviction, his defense attorney suggested that the Petitioner request that he be classified as a mentally disordered sex offender pursuant to Chapter 917, Florida Statutes (1975). The Petitioner did in fact request that he be classified as a mentally disordered sex offender. Pursuant to Section 917.14(2), Florida Statutes (1975), such a request was required to be made by "affidavit of the defendant." The Petitioner's request to be classified as a mentally disordered sex offender was granted on December 19, 1975, by then Circuit Court Judge Charles Scruggs, III. There was no requirement that a person classified as a mentally disordered sex offender in 1975 actually be convicted of having committed a sex offense. There was, however, a requirement that the sentencing judge determine that the person being classified as a mentally disordered sex offender: Have a mental disorder; and Be considered dangerous to others because of a propensity to commit sex offenses. It was not necessary under Chapter 917, Florida Statutes (1975), that it be shown that the person ever actually committed a sex offense. It was only necessary that the person show a propensity or inclination to commit a sex offense in the future. On April 1, 1976, the Petitioner was transferred from a correctional institution to the state mental hospital in Chattahoochee, Florida. In March, 1980, the Petitioner was resentenced and returned to a correctional institution. Judge Scruggs recommended that the Petitioner be placed in minimum custody. The Petitioner is currently classified as medium custody. Even without the Emergency Rule or the Proposed Rule, the Petitioner has not been eligible for classification as minimum custody. Nor is the Petitioner currently eligible for minimum custody. Should the Petitioner, who has had no disciplinary reports during his seventeen years incarceration by the Respondent, otherwise become eligible for minimum custody in the future, he will not be so classified because of the Proposed Rule. In light of the fact that the Petitioner was not eligible for minimum custody during the period of time that the Emergency Rule was effective, the Emergency Rule had no impact on the Petitioner and he lacks standing to challenge the Emergency Rule. The Petitioner failed to prove that he has successfully completed the mentally disordered sex offender program. The Petitioner was involved in a sex offense committed against him when he was a child. Pursuant to the Emergency Rule and the Proposed Rule the Petitioner will not be eligible for minimum custody because he was classified as a mentally disordered sex offender and has apparently not successfully completed the mentally disordered sex offender. Nor can the Petitioner successfully complete the program since it is no longer provided. The Petitioner has alleged that the Emergency Rule and the Proposed Rule are invalid because they are arbitrary and capricious. The Petitioner has also alleged that the Emergency Rule is invalid because no emergency existed when it was promulgated.
Findings Of Fact Petitioner is a contractor engaged in highway construction and holds a certificate of qualification with Respondent. Action pending in DOAH Case No. 84-2538 could result in the suspension of Petitioner's certificate if an alleged contract delinquency is proven. Section 337.16, F.S., delegates to Respondent the authority to revoke or suspend a certificate when contract delinquency is demonstrated. This statute provides: No contractor shall be qualified to bid when an investigation by the highway engineer discloses that such contractor is delinquent on a previously awarded contract, and in such case his certificate of qualification shall be suspended or revoked. The department may suspend, for a specified period of time, or revoke for good cause any certificate of qualification. The purpose of the above statute is to enforce timely completion of construction work and to prevent a contractor from taking on new work which might require diversion of resources from the delinquent job, thus lessening the contractor's ability to catch up. Rule 14-23.01, F.A.C. was promulgated by Respondent to implement its authority to suspend or revoke contractor certificates for job delinquency. Because contractors charged with delinquency frequently catch-up or cure the delinquency during the pendency of administrative proceedings, 1/ Respondent's statutory authority to enforce construction schedules was easily thwarted. To "put teeth" in its ability to deter job delays, Respondent amended its delinquency rule in 1982 to provide after- the-fact certificate suspension where a contractor was proven to have been delinquent in its progress on a construction project. This provision, which is challenged here, states as follows: (b) REINSTATEMENT. Any contractor disqualified under the above provisions shall be disqualified from further bidding and shall be disapproved as a contractor until the delinquency is cured. Where a contractor cures the alleged delinquency during the course of administrative proceedings, the Department may suspend the qualification to bid and disapprove as a subcontractor for the number of days the contractor is administratively determined to be delinquent. Specifically, Petitioner challenges the last sentence which it contends amounts to unauthorized punishment since the deficiency sought to be corrected by the statute no longer exists. However, the provision would arguably have some deterrent force since contractors would recognize that suspension could not be avoided merely by requesting formal proceedings 2/ and counting on administrative delay to render the delinquency issue moot.
The Issue The issues are whether, in violation of sections 120.54(1)(a) and 120.56(4), Florida Statutes, Respondent has made an agency statement that is an unadopted rule in implementing a 2017 statutory amendment broadening the category of first-time test-takers to be counted when calculating the passing rate of the graduates of Petitioner’s prelicensure professional nursing education program (Program) and whether, pursuant to section 57.111, Petitioner may recover attorneys’ fees and costs from Respondent. At Petitioner’s request, the parties presented evidence concerning constitutional challenges that Petitioner intends to present to a district court of appeal.
Findings Of Fact The Program is a prelicensure professional nursing education program that terminates with an associate degree. Respondent approved the Program in 2013, thus authorizing Petitioner to admit degree-seeking students into the Program, as provided in section 464.019. As provided by section 464.019(5)(a)1., the passing rate of the Program’s graduates taking the NCLEX for the first time must meet or exceed the minimum passing rate, which is ten points less than the average passage rate of graduates taking the NCLEX nationally for the first time. Until June 23, 2017, the passing rate of a Florida program was based only on first-time test-takers who had taken the exam within six months of graduating (New Graduates). Chapter 2017-134, sections 4 and 8, Laws of Florida, which took effect when signed into law on June 23, 2017 (Statutory Amendment), removes the six-month restriction, so that the passing rate of a Florida program is now based on all first-time test-takers, regardless of when they graduated (Graduates). The statutory language does not otherwise address the implementation of the Statutory Amendment. For 2015 and 2016, respectively, the minimum passing rates in Florida were 72% and 71.68%, and the Program’s New Graduates passed the NCLEX at the rates of 44% and 15.79%. As required by section 464.019(5), Respondent issued the Probationary Order. The Probationary Order recites the provisions of section 464.019(5)(a) specifying the applicable passing rate, directing Respondent to place a program on probation if its graduates fail to pass at the minimum specified passing rates for two consecutive years, and mandating that the program remain on probation until its passing rate achieves the minimum specified rate. The Probationary Order details the 2015 and 2016 passing rates of Petitioner’s relevant graduates and the minimum passing rates for these years. The Probationary Order makes no attempt to describe the condition of probation, which might have included a reference to New Graduates, other than to refer to section 464.019(5)(a)2., which, unchanged by the Statutory Amendment, specifies only that a program must remain on probation until and unless its graduates achieve a passing rate at least equal to the minimum passing rate for the year in question. For 2017, the minimum passing rate for a Florida program was 74.24%. If, as Respondent contends, the new law applies to all of 2017, six of the fifteen of the Program’s Graduates failed the NCLEX, so the Program’s passing rate was inadequate at 60%. If, as Petitioner contends, the old law applies to all of 2017, twelve of the Program’s test-takers were New Graduates, and only three of them failed, so the Program’s passing rate was adequate at 75%. Respondent clearly applied the Statutory Amendment retroactively to January 1, 2017, in the Order Extending Probation because the order states that that the passing rate of the Program’s Graduates for 2017 was only 60% and therefore extends Petitioner’s probationary status for 2018. The Order Extending Probation provides Petitioner with a clear point of entry to request an administrative hearing. Each party applies the Statutory Amendment without regard to the effective date of June 23, 2017, but Respondent reaches the correct conclusion: the passing rate of the Program’s graduates for 2017 was inadequate. The NCLEX is administered throughout the year, and the dates of graduation are available for Petitioner’s Graduates taking the NCLEX in 2017, so it is possible to calculate a combined passing rate, using only New Graduates under the old law for testing dates through June 22 and all Graduates under the new law for testing dates after June 22. From January 1 through June 22, 2017, five of the Program’s test-takers were New Graduates and they all passed. From June 23 through December 31, 2017, four of the eight Graduates taking the NCLEX passed the test. Combining these results for all of 2017, the Program’s passing rate was nine divided by thirteen, or 69%, which was inadequate for 2017.
Findings Of Fact The initial Petition for Administrative Hearing was filed on November 18, 1991. The Petition was filed by Ervin James Horton. 3. In the Petition Rules "33-3.002, 33-19.006, 33-19 et. seq., 33-19.012, 33-23 et. seq." were challenged. Most of the Challenged Rules are lengthy and deal with a number of subjects. The common thread of the Challenged Rules concern medical care of inmates. The Petition is, to say the least, confusing. This confusion is caused by the Petitioner's frequent use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 17, State of the Case and Facts, provides the following: 17. That the (Petitioner) has learned that the (Respondent) act [sic] pursuant to an invalid delegation as 33-3.002 33-19 et. seq., 233-23 et. seq. that fail to establish adequate standards for agency decision making, and vests unbridled discretion in the agency or employees that's inconsistant [sic] to the statutory requirements of 120.54 and 944.09. This paragraph is fairly typical of most of the Petition. Although it contains some "legalese", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of employees of the Respondent in allegedly releasing confidential medical information to "security staff and psychologist or and other staff or employees with criminal intent" and other medical practices of the employees of the Respondent. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rules. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rules are unconstitutional. Again, most of the Petitioner's arguments apparently concern violation of constitutional rights by the acts of employees of the Respondent as opposed to the violations of constitutional rights in the Challenged Rules. Insufficient alleged facts concerning why it is believed that the Challenged Rules are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. On December 10, 1991, an Order Granting Motion to Dismiss with Leave to Amend was entered. The Petitioner was informed that his Petition was being dismissed and the Petitioner was given an opportunity to file an amended petition. No amended petition has been filed by the Petitioner. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.
The Issue Whether Florida Administrative Code Rule 61G16-9.001 is an invalid exercise of legislatively delegated authority in violation of Section 120.52(8), Florida Statutes, and whether certain statements of the Department of Business and Professional Regulation (DBPR or the Department) are "agency statements" defined as rules that should be adopted through the rulemaking process pursuant to Section 120.54, Florida Statutes.
Findings Of Fact Petitioner, Dr. Bacchus, is a hydroecologist with a multidisciplinary degree. While Dr. Bacchus lives in Georgia, she alleges that a substantial amount of her income comes from conducting environmental consulting services in Florida. According to her Amended Petition, Dr. Bacchus is not licensed by the Department. Respondent, Department of Business and Professional Regulation, is the state agency charged with the licensing and regulation of a variety of professions. The practice of geology is among the professions it regulates, pursuant to Chapters 455 and 492, Florida Statutes. Created within the Department is the Board of Geology. Petitioner is the subject of an Administrative Complaint issued on or about September 27, 2006, charging her with the unlicensed practice of geology in violation of Section 492.112(1)(a), Florida Statutes (2005). The Administrative Complaint, which is attached as an Exhibit to the Amended Petition, does not cite to any rules. As of the date of hearing, the Administrative Complaint had not been referred to the Division of Administrative Hearings Petitioner does not allege that she has any intention of seeking licensure from the Department. Florida Administrative Code Rule 61G16-9.001 Florida Administrative Code Rule 61G16-9.001 is a rule adopted by the Board of Geology, as opposed to the Department of Business and Professional Regulation. The rule, entitled "Disciplinary Guidelines," identifies the range of penalties normally imposed by the Board of Geology against licensees for violations of provisions in Chapters 455 and 492. All of the possible violations addressed by the Disciplinary Guidelines are statutory violations. The rule is lengthy and will not be repeated ver batim. The text of subsections (1) and (2) are tables of penalty ranges. Subsection (1) deals with violations of provisions in Chapter 492, whereas subsection (2) of the rule addresses violations of Chapter 455. Subsection (3) is entitled "The Usual Conditions" and outlines provisions that are included in all disciplinary orders; conditions imposed whenever fines and costs are imposed; conditions which may be imposed with probation; and conditions which may be imposed when a license is suspended. Subsection (4) identifies the purpose of the Disciplinary Guidelines, and states: (4) Purpose of guidelines -- The range of penalties set forth above is the range from which disciplinary penalties will be imposed upon licensees guilty of violations of the laws and rules. The purpose of these guidelines is to give notice of the range of penalties which will normally be imposed for specific violations. The guidelines are based upon a single count violation of the provision listed. Multiple counts of violations of the same provision, or unrelated provisions of the law or rules will be grounds for enhancement of penalties or imposition of additional penalties. [Emphasis supplied.] Subsection (5) of the rule addresses aggravating and mitigating circumstances to be considered when imposing penalty, and subsection (6) identifies those instances when the Department may issue a Notice of Noncompliance. The rule lists as its specific authority Sections 455.2273, 492.104(1), and 492.113(3), Florida Statutes. The laws implemented are Sections 455.227, 455.2273, 492.104(1), and 492.113(2), Florida Statutes. Section 455.227, Florida Statutes, identifies "across- the board" acts that constitute grounds for which disciplinary action may be taken by professional licensing boards or by the Department, where no professional licensing board exists. The penalties that can be imposed are the refusal to certify, or certify with restrictions, an application for a license; suspension or permanent revocation of a license; restriction of practice; imposition of an administrative fine; issuance of a reprimand; placement of a licensee on probation; or corrective action. Section 455.2273, Florida Statutes (2006), provides in pertinent part: 455.2273 Disciplinary Guidelines Each board, or the department where there is no board, shall adopt, by rule, and periodically review the disciplinary guidelines applicable to each ground for disciplinary action which may be imposed by the board, or the department where there is no board, pursuant to this chapter, the respective practice acts, and any rule of the board or department. Section 492.104(1), Florida Statutes (2006), provides: The Board of Professional Geologists has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement this chapter. Every licensee shall be governed and controlled by this chapter and the rules adopted by the board. The board is authorized to set, by rule, fees for application, examination, certificate of authorization, late renewal, initial licensure, and license renewal. These fees should not exceed the cost of implementing the application, examination, initial licensure, and license renewal or other administrative process and shall be established as follows: The application fee shall not exceed $150 and shall not be refundable. Section 492.113(2), Florida Statutes (2006), states that the Board of Geology shall specify what acts or omissions constitute a violation of section (1) of the section, which is entitled "Disciplinary Proceedings." Subsection (1) identifies several different grounds for which disciplinary action may be taken against a licensee. While Section 492.113(2) is listed as a law being implemented by Rule 61G16-9.001, the Rule does not specify any acts or omissions constituting a violation of Section 492.113(1), Florida Statutes. It simply paraphrases the statutory language of each statutory provision and gives a range of penalties for each violation. Agency Statements as Rules Petitioner also attempts to challenge agency statements and agency actions not adopted as rules. The Amended Petition states: 2. . . . Examples of the text and description of the statements and agency actions, pursuant to § 120.56(4)(a), F.S. and as defined in § 120.52, F.S., are provided in the Department's: Administrative Complaint against Petitioner, SYDNEY T. BACCHUS, Ph.D. (hereinafter "Dr. Bacchus") signed on September 27, 2006, attached and incorporated by reference hereto as Exhibit A; Undated Settlement Stipulation accompanying the above-referenced Administrative Complaint against Dr. Bacchus, attached and incorporated by reference hereto as Exhibit B. Cease and Desist Order against Dr. Bacchus signed on February 15, 2006, attached and incorporated by reference hereto as Exhibit C. Complaint No. 2005056737 against Dr. Bacchus signed on January 26, 2006 and threatening criminal charges, attached and incorporated by reference hereto as Exhibit D; and Complaint No. 2003063556 against Dr. Bacchus signed on May 22, 2003 and threatening criminal charges, attached and incorporated by reference hereto as Exhibit E. [Emphasis Supplied.] Failure to Adopt Rules Petitioner apparently also seeks to address the failure of the Department to adopt rules identifying what acts constitute the unlicensed practice of geology. The Amended Petition states in pertinent part: In 1987, the Board was authorized to govern and control every licensed professional geologist, pursuant to s. 4, ch. 87-403, Laws of Florida. The Board was not authorized to govern and control persons not licensed as a professional geologist. In 1987, the Department was mandated to "specify, by rule what acts or omissions constitute a violation" of the "[P]ractice of geology," pursuant to subsection (2) s. 12, ch. 87-403 Laws of Florida. * * * 46. The Department has failed to specify, by rule, "what acts or omissions constitute a violation" of the "[P]ractice of geology," to allow an unlicensed person to "know" what constitutes the practice of geology. In the absence of such specificities, a person cannot "knowingly" engage in the unlicensed "[P]ractice of geology" or "knowingly employ unlicensed persons to practice geology, pursuant to subsection (1) s. 12, ch. 87-403 Laws of Florida. [Emphasis in original.] Petitioner's Unilateral Pre-Hearing Statement does not mention Rule 61G16-9.001. Petitioner's statements identifying what she views as the scope of the proceeding state the following: Brief General Statement of Petitioner's Position The Department is regulating unlicensed members of the public under Chapters 492 and 455 Florida Statutes, using unpromulgated rules and rules that are an invalid exercise of delegated legislative authority. Such unlawful regulation violates the constitutional freedom of speech of unlicensed persons. The Department is impermissibly encroaching on the powers of the judiciary. * * * Issue of Fact that Remain to be Litigated 1. Whether the Department is regulating unlicensed members of the public under Chapters 492 and 455 Florida Statutes, using unpromulgated rules and rules that are an invalid exercise of delegated legislative authority. Issue of Law that Remain to be Litigated Whether the Department exceeded its lawful delegation of authority to regulate the "practice of professional geology" in the manner in which it is being regulated in Florida. Whether the Department has failed to give adequate notice to the public regarding what constitutes the unlicensed "practice of professional geology" in Florida. Whether the Department's rules are over- broad, vague, and are in invalid exercise of delegated legislative authority. . . . Whether the Department was required to promulgate rules to regulate the unlicensed "practice of professional geology" in Florida, but failed to promulgate those rules. Whether the Department has been engaged in a pattern of action that constitutes an unpromulgated rule. Whether the Department's recent regulation of the "practice of professional geology" in Florida constitutes selective enforcement. Petitioner was questioned at length during the consideration of the Motion to Dismiss regarding the basis of her challenge. She indicated not that she was concerned with the application of Rule 61G16-9.001 against her, but that she wished to challenge the entire regulatory scheme: THE COURT: . . . Doctor, all the disciplinary guideline rule does is name a statutory or rule violation. It paraphrases the statute itself. It doesn't provide any additional language to my knowledge and provides what penalty would be imposed should a licensee violate one of those statutory provisions. It doesn't -- and as I look at this, it doesn't even have any rule violations. Its statutory. DR. BACCHUS: Yes, Your Honor, I understand that, and I understand that it is confusing, but in fact I had received two charges from the department over a period of -- beginning -- I received the first notice in 2003 for a complaint filed I believe the previous year, and then second complaint that I received early in 2006 for a complaint filed against me in 2005 basically alleging that I was producing documents that in fact were required to have the seal and signature of a licensed geologist. So in fact the agency is regulating unlicensed persons using the language from 61G16 despite the fact that they are not referencing the rule citation. You know, I'm an unlicensed individual, complaints are being filed against me because I am producing documents that have only my name. No reference to the title of professional geology, no insinuation that I am a geologist, a professional geologist, a licensed professional geologist, no reference to that whatsoever, yet complaints are being filed against me with the department and they are taking action against me. THE COURT: But again, getting back to this rule. Even assuming -- and the merits of your administrative complaint are not before me and we're not going to talk about them. DR. BACCHUS: Yes, Your Honor, I understand. THE COURT: But even assuming that, even assuming that the department were going to take action against you based on whatever is charged in that administrative complaint, how is this rule -- you're not going to be -- this rule specifically says licensees. DR. BACCHUS: Yes, Your Honor, I understand that, but that's not how its being applied by the Department. I understand that this hearing is not a hearing to be addressing my complaints, but as I understand, my complaints are relevant with regard to my standing for this issue before the court today. And in fact because of the actions of the department against me, you know, multiple complaints can be filed against me for any written document that I have produced in the past or any written document that is pending, peer-reviewed publications that are pending to be released, because I don't have a license, they are using that language without referencing that rule to take action against me, your Honor. THE COURT: But again, you're saying they're not referencing that rule. DR. BACCHUS: That's correct, Your Honor. They're not referencing that, but because there is no comparable rule that has been promulgated and adopted and is being implemented for unlicensed activities, there is only the statute they are referencing, only 492 and 455, and because there isn't a comparable rule to 61G16 for unlicensed people, then by nature you have to look at what the licensed activity is to determine what the unlicensed activity is. Similarly, with respect to the actions taken by the Department against her personally, Dr. Bacchus asserted that these actions, which she characterizes as agency statements, give her standing to file this rule challenge. However, she does not allege that the Department's actions necessarily give her standing to challenge the specific rule alleged in the Amended Petition: THE COURT: So what is your position in terms of standing? These agency statements give you standing to challenge what? DR. BACCHUS: To challenge the regulation of unlicensed practice of professional geology in Florida. Because the broad sweeping net they are casting, Your Honor, encompasses every form of speech, every form of written document that I produce, whether it is a peer-reviewed publication, whether it is a comment letter to a public agency proposed action, I would have to challenge every single act. I literally cannot act until I am able to know what constitutes the practice of professional geology and the statute does not tell me that. Finally, with respect to what Dr. Bacchus describes as "illegal unpromulgated rules," Dr Bacchus described the unpromulgated rule as "this sweeping action, the fact that the statute does not define geological services, the statute does not define geological documents, yet the agency is taking action not only against me but against a myriad [of] other people for theoretically actions that constitute geological services."
