Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. As of the date of final hearing in this cause, Petitioner Durham was classified as "close" custody pursuant to Rule 33-6.09, Florida Administrative Code. Although Petitioner Durham's reclassification questionnaire score was initially five points, which would have qualified him for classification as "medium" custody, Respondent used the override provision contained in Rule 33-6.09 to classify Petitioner Durham as "close" custody by virtue of his poor institutional adjustment. Petitioner Adams was likewise classified as "close" custody at the time of final hearing. Petitioner Adams' numerical score on the inmate reclassification questionnaire would have classified him as "medium" custody, but the override provisions of Rule 33-6.09 were utilized in Mr. Adams' case to reclassify him as "close" custody by virtue of the fact that his sentence expiration date is 1990, and at the time of his reclassification he had not served 20 percent of his sentence. Petitioner Piccirillo was classified as "medium" custody at the time of final hearing. His numerical score on his inmate reclassification questionnaire was three points, which would have qualified him for "minimum" custody had this score not been overridden by virtue of the fact that Petitioner Piccirillo escaped from Department of Corrections custody on November 17, 1979, while in a minimum custody setting. Petitioner Farrell was classified as "minimum" custody at the time of final hearing in this cause, and his presumptive parole release date is set for July 24, 1984. It was stipulated at final hearing in this cause that none of the policy and procedure directives challenged in this cause had been promulgated by Respondent as rules, pursuant to the requirements of Section 120.54, Florida Statutes. It is also apparent from the face of the various challenged policy and procedure directives that they have statewide applicability at all institutions administered by the Department of Corrections. On or about May 6, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.22, which was subsequently revised on November 30, 1979. This directive is entitled "Reclassification and Progress Reports," and purports to be issued pursuant to the authority contained in various sections of Chapters 921, 944, 945, and 947, Florida Statutes, and Chapter 33-6, Florida Administrative Code. Petitioners in this cause challenge two sections of this directive as unpromulgated rules. The first of these is contained in Section X, entitled "Sources of Information," which provides as follows: It is essential that Progress Reviews Reports be accurate, concise and usable. Compiling up-to-date information to go into the report is as important as writ- ing the report. The following source of information should be utilized by the Classification Team in compiling information for the report. Various evaluation Reports (verbal or written) to include work super- visors, medical, dental, education, recreation, quarters, religious, per- sonal observations, etc Nowhere in either the cited chapters of the Florida Statutes or Chapter 33-6, Florida Administrative Code, are there any specific requirements for information to be considered by the Classification Team in compiling an inmate progress report. Department personnel utilized the above quoted section of the challenged directive in preparing reports on inmate progress. The second section of Policy and Procedure Directive 4.07.22 challenged in this proceeding is XVI, entitled "Recommendations for Parole or Pre-Parole Work Release," which provides as follows: The Department may in selected cases recom- mend to the Florida Parole and Probation Commission that an inmate be placed on parole or pre-parole work release. How ever, note should be made of an inmate's Presumptive Parole Release Date(PPRD) when considering such possibilities. If it is felt that such significant progress has taken place since the setting of the PPRD that it should be moved forward to an earlier date, then such recommendations should be made to the Parole Commission in a full Progress Report setting forth the basis for recommending a change in the PPRD. If at the time of the Progress Review/Report the team does not see the justification in recommending the PPRD be changed then no comment will be required. All reports contaning [sic] parole or pre-parole work release recommendations will be reviewed and signed by the Classification Supervisor and forwarded to the Superintendent for his concurrence or disapproval. The Superintendent will indicate his decision by placing his signature on the appropriate line of the block to be added at the close of the Progress Report format. Upon approving a parole or pre-parole work release recommendation, the Superintendent will prepare a cover letter of endorsement which will be attached to the normal distribution of the Progress Report and for warded directly to the Parole Commission. The above-quoted language from Section XVI of Policy and Procedure Directive No. 4.07.22 is virtually identical to the language contained in Rule 33-6.09(7)(m) , Florida Administrative Code. On or about September 30, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive 4.07.31, entitled "Community Study and Volunteer Service." This directive purports to be issued pursuant to the authority contained in Section 945.091, Florida Statutes, and Chapter 33-9, Florida Administrative Code. Petitioners in this cause challenge as rules the following provisions contained in Section III, entitled "Selection": C. The Classification Team should determine if the inmate meets criteria for eligi- bility described in the Program Directive Community Services Programs. When com- parable study programs are available at the institution, community study should not be considered. On-the-job training programs which are limited in scope are not considered comparable. The educational personnel of the Depart- ment should be Particularly involved in referring inmates for community study since they are in a position to evaluate the inmate's desire, ability, and past performance in the education program. The educational personnel will ensure the availability of the requested course of study or training prior to Classification Team action. Inmates considered for community study must have financial assistance from one or more of the following sources for tuition, books and clothing: Vocational Rehabilitation Veterans benefits Personal finances Committed support by the inmate's family Approval for a government grant Proof of financial support must accompany each application. Inmates are not to borrow money from any university, college or private organiza- tion for the purpose of financing their education. Nowhere in either Section 945.091, Florida Statutes, or Chapter 33-9, Florida Administrative Code, are the above-cited requirements of Policy and Procedure Directive 4.07.31 contained. On or about April 27, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.40, which was subsequently revised on March 10, 1982. This directive, entitled "Community Work Release general Policies and Procedures" purports to be issued pursuant to the authority contained in Section 945.091, Florida Statutes, and Chapter 33-9, Florida Administrative Code. Petitioners in this cause challenge as an umpromulgated rule Section IXB of the directive which provides, in pertinent part, as follows: The Department will permit consideration for work release 18 months prior to release. However, normally such consideration will be given within the last nine months prior to the presumptive parole release date or expiration or[sic] sentence. Should special cases arise which warrant attention prior to the nine months remaining, consideration will be given on an individual basis when there appears[sic] to be appropriate reasons for such. Special cases must be recommended by the Classification Team, approved by the Superintendent and Regional Director, and then forwarded to the Central Office where a Special Review Committee will make the final decision. . . . (Emphasis added) The underlined portion of Section IXB quoted above appears nowhere in either Section 945.091, Florida Statutes, or in Chapter 33-9, Florida Administrative Code. On or about November 30, 1979, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07-90, entitled "Inmate Participation in Outside Activities." This directive purports to be issued pursuant to authority contained in Section 945.21, Florida Statutes. Petitioners in this cause challenge as an umpromulgated rule Section IV of the directive, entitled "Distance Limitations," which provides as follows: The following distance limitations are established as maximums but may be reduced by the Superintendent: Travel to attend civic or religious meeting except the annual statewide meetings will be limited to 100 miles one way. Travel for fund raising projects will be limited to 35 miles one way. Travel to all statewide meetings will be approved by the Regional Director with concurrence of Assistant Secretary of Operations. Nowhere in Section 945.21, Florida Statutes, nor in validly adopted rules of Respondent do the specific requirements contained in Policy and Procedure Directive No. 4.07.90 appear. On or about January 25, 1980, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.42, which was subsequently revised on February 26, 1982. This directive, entitled "Furlough Procedures," purports to be issued pursuant to authority contained in Section 945.091, Florida Statutes, and Chapter 33.9, Florida Administrative Code. Petitioners in this cause challenge the entirety of this directive as an unpromulgated rule. The directive establishes a special review team to review furlough applications; makes Florida furlough procedures applicable to federal inmates in interstate compact cases placed with the department; establishes types of furloughs which may be granted; establishes eligibility criteria for selecting inmates for furloughs; sets time and distance limitations for furloughs; establishes the maximum number of furloughs for which inmates may be eligible; establishes verification requirements; establishes clothing requirements while inmates are on furlough; establishes types of transportation available for inmates on furlough; establishes release and check-in procedures; and, finally, establishes a procedure for termination of furloughs in the event of a violation of a furlough agreement. None of the specific requirements contained in Policy and Procedure Directive No. 4.07.42 are contained in either Section 945.091, Florida Statutes, Chapter 33-9, Florida Administrative Code, or any other properly promulgated rule of the Department of Corrections.
Findings Of Fact On his application form Petitioner was asked if he had ever been arrested. He checked the box indicating "yes." The form further inquired "If yes, list any and all arrests and dispositions. This may or may not be grounds for denial. If additional space is required, use back of application." To that inquiry, Petitioner indicated a charge for grand theft. He did not indicate the disposition of the charge but did indicate a date of 1958. At the conclusion of the application form Petitioner swore that the information contained therein was true and correct. Petitioner's history of arrests indicates, among others, the following: July 24, 1945 larceny of an automobile; August 31, 1945 unauthorized use of an automobile without owners consent; in addition Petitioner was convicted on July 3, 1947 for grand larceny and sentenced to the Florida State Prison for a period of two (2) years; on August 17, 1949, Petitioner was convicted of auto larceny and sentenced to the Florida State Prison for a period of three (3) years; and on March 11, 1959, Mr. Davis was convicted of robbery and sentenced to the Florida State Prison for the full term of fifteen (15) years. Mr. Davis was released from State custody in 1970. Since that time the available evidence does not indicate any further arrests or convictions of Mr. Davis. At the final hearing in this case Mr. Davis testified that the reason he did not fully disclose his prior arrest record was because he thought that the disclosure of one arrest would lead the Department of State's office to his complete record. This testimony is not accepted as credible. Mr. Davis is now able to vote in Florida elections.
Recommendation In light of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner's application for a Class "F" Unarmed Security Guard License be denied. DONE and RECOMMENDED this 3rd day of October, 1980, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact The Respondent, William H. Cochran, was certified by the Petitioner as a correctional officer on November 20, 1989, and was issued corrections certificate number 33-89-502-05, and at all times relevant hereto was a certified officer. The Respondent was employed as a Correctional Officer I officer by the Department of Corrections, and assigned to the Charlotte Correctional Institution, a state correctional institution, in Port Charlotte, Florida. On or about February 17, 1990, the Respondent approached Ruth Rivera- Silva, another Correctional Officer I at the Charlotte County Correctional Institution, and engaged her in conversation. The Respondent initiated the conversation with casual, small talk, and then presented Officer Rivera-Silva with a business proposition. Officer Rivera-Silva and the Respondent knew each other, because they had gone through the academy together. The business proposition the Respondent made to Officer Rivera-Silva consisted of her assisting him in bringing marijuana into the Charlotte Correctional Institute for sale to inmates. The Respondent expressed a need for extra money for himself, and he wanted to help her obtain some extra money, because she was a divorced mother with two children. The Respondent had been approached by inmates Smith and Bass who requested his help in bringing marijuana into the institution to them. According to the Respondent's plan, he was supposed to meet with one of the inmate's friends and pick up the marijuana from her. The Respondent would then give the drugs to Officer Rivera-Silva, and she would bring in approximately two pounds of marijuana a week by carrying the marijuana into the institution in her lunch box. Respondent indicated that no one ever checked the contents of the lunch boxes. The lunch boxes were to be dropped off in the recreation department for inmates Smith and Bass to pick up. The Respondent speculated that he and Officer Rivera-Silva would each make approximately one thousand dollars per week. After the Respondent initially approached Officer Rivera-Silva in February 1990, requesting her assistance in this illegal plan, she immediately reported the details of the plan to Colonel Richardson of the CCI. The Charlotte County Sheriff's Office was contacted, and an investigation into the matter was initiated. An electronic recording devise was planted on Officer Rivera-Silva, and she had four additional conversations with the Respondent. The electronic bugging system allowed Deputy Juan Acosta, the lead investigator, to listen to the conversation between the Respondent and Officer Rivera-Silva, and at the same time record the conversations on audio tape. Deputy Acosta was present and listened to all four of these bugged conversations between the Respondent and Officer Rivera-Silva. In the last monitored conversation on February 24th, the Respondent indicated that evening he would receive a call at the Babe Ruth Field, meet with the contact lady, and meet with Officer Rivera-Silva the next morning as planned. Respondent was placed under close observation, and he was observed at the Babe Ruth Field, and, while there, he received and made a couple of phone calls. Then he returned to his residence. The next morning, the Respondent left his residence, and traveled in the direction of the correctional facility. As he pulled into the parking lot of the institution, Deputy Acosta and the other officers confronted him. A search of the car's interior was conducted, but no contraband was found. The Respondent was escorted into the administration building where an interview was conducted. Initially, the Respondent indicated that Deputy Acosta and the other officers had the wrong guy, and that they were making a mistake. Deputy Acosta played the taped conversations for the Respondent, then he said, "You got me, I'll tell you what you need to know." The Respondent stated that he was just saying those things, because he wanted to date Officer Rivera-Silva, and was trying to impress her. At the hearing, Respondent indicated that this plan was completely Officer Rivera-Silva's idea. The Respondent was not arrested, and was never criminally prosecuted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989) and that Respondent's certification be REVOKED. DONE AND ENTERED this 24th day of April, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: Paragraphs 1 - 32 Respondent's proposal findings of fact. Respondent did not file proposed findings as of the date of this order. COPIES FURNISHED: James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Dawn Pompey, Esquire Assistant General Counsel Florida Department of Law Enforcement PO Box 1489 Tallahassee, FL 32302 Kevin Shirley, Esquire 126 East Olympia Avenue Suite 408 Punta Gorda, Florida Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302
The Issue The issue is whether Respondent's Correctional Certificate No. 164605 should be disciplined for the reasons set forth in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary proceeding, Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), seeks to discipline Correctional Certificate No. 164605 held by Respondent, Eric T. Jenkins, on the grounds that in December 1998 he was in possession of more than 20 grams of cannabis, a controlled substance, and he illegally carried contraband (cannibis) onto the grounds of Florida State Prison (FSP) while employed at FSP as a correctional officer. In his request for a hearing, Respondent denied the allegations. Periodically, and without notice, the Department of Corrections (DOC) sends a small contraband interdiction team (team) to various state correctional institutions for the purpose of intercepting contraband that may be covertly brought into the facility by DOC employees or inmate visitors. The team consists of a small number of specially trained DOC employees, including K9 units, and a volunteer Florida Highway Patrol trooper, who assists the team in making arrests. On Sunday, December 20, 1998, a team targeted FSP and arrived on the premises around 5:00 a.m. The inspection lasted until shortly after the last shift of employees reported to work around 4:00 p.m. Besides patting down employees and visitors, the team also searched the vehicles of employees that were parked in the employees' parking lot inside the prison. Respondent worked the last shift that day and arrived shortly before 4:00 p.m. He was driving an Isuzu Amigo with Florida vehicle tag "WSM 82B." To assist the team in its search, the team used several specially trained dogs (Blue, Smokey, and Thor) who were assigned the task of sniffing parked vehicles for narcotic odors. When a dog recognizes a narcotic odor, it "alerts" or responds to the odor and remains passively in front of the vehicle. After Blue "alerted" at the rear of Respondent's vehicle, a second dog, Thor, was brought to the vehicle and he also responded in the same manner. Respondent was then notified that the team wished to search his vehicle, and he executed a written Consent to Search form ageeing to a search. A search conducted by a DOC officer discovered a latex glove hidden under the front passenger seat of Respondent's vehicle. Inside the glove were two compressed baggies containing approximately 55 grams of a substance that appeared to be cannibis. Laboratory testing by a state chemist confirmed that the substance was indeed cannabis, and that it weighed 51.5 grams. Although the street value of the drugs was only around $275.00, in a prison environment, the drugs had a far greater value. Respondent initially agreed to be interviewed by a Florida Highway Patrol trooper at the prison regarding the contraband. He subsequently had a change of heart and declined to answer any questions. Respondent was then arrested for "drug offenses," booked into the Bradford County Jail, and charged with violating Sections 893.13 and 944.47(1)(a)4., Florida Statutes (1997). However, the disposition of the criminal matter is unknown. In any event, after being arrested, Respondent was immediately terminated from his position at FSP. In mitigation, Respondent has been certified as a correctional officer since June 26, 1996, and there is no evidence that prior disciplinary action has been taken against him. In aggravation, Respondent used his official authority to facilitate his misconduct; he was employed as a correctional guard when the misconduct occurred; Respondent has made no efforts of rehabilitation; Respondent stood to receive pecuniary gain by selling the contraband in the prison; and there are two established counts of violations of the statute requiring that correctional officers maintain good moral character.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order determining that Respondent has failed to maintain good moral character, as charged in the Administrative Complaint, and that his Correctional Certificate No. 164605 be revoked. DONE AND ENTERED this 29th of June, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 29th day of June, 2000. COPIES FURNISHED: A. Leon Lowrey, Jr., Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael R. Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Karen D. Simmons, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Eric T. Jenkins 1000 Bert Road Jacksonville, Florida 32211
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue Did Respondent violate Section 491.009(2)(v), Florida Statutes, by failing to maintain in confidence the statements of his patient V.D. made in the course of her treatment with Respondent? Did Respondent violate Section 491.009(2)(s), Florida Statutes, by failing to meet minimum standards of professional conduct as measured against generally prevailing standards of professional conduct where he engaged in numerous social activities with V.D.? Did Respondent violate Section 491.009(2)(k), Florida Statutes, by engaging in sexual misconduct with V.D. as defined by Section 491.0111 and Rule 59P-10.002? Did Respondent violate Section 491.009(2)(q), Florida Statutes, by violating Rule 59P-9001(4) when he destroyed V.D.'s patient records less than seven years after his last contact with V.D.?
Findings Of Fact Respondent is and at all times material hereto was a licensed marital and family therapist, license number MT0001290. Respondent had a professional relationship with T.G. who is V.D.'s son. Respondent's professional relationship with T.G. began in the late 1980's and continued until 1994. Respondent had a professional relationship with V.D. as her personal therapist during the late 1980's while he was also treating her son. Respondent had a professional relationship with V.D. and her husband as their marriage counselor from 1988 through 1989. In May, 1993, V.D. expressed a desire to have a sexual relationship with Respondent. After becoming aware of V.D.'s sexual interest in him, Respondent participated in a numerous social activities with V.D., to include seeing her alone for extended periods of time. These occasions were: In May of 1993, when Respondent accompanied V.D. to an area of Mayport, where they parked for approximately two hours. On Friday of Memorial Day weekend, 1993, when V.D. arrived uninvited at the home of Respondent's parents where Respondent was residing. The Respondent invited V.D. into the home at approximately 7:00 p.m., and allowed V.D. to remain in the home until 2:00 a.m., Saturday. On Saturday morning of Memorial Day weekend, 1993, when V.D. returned uninvited to the home of Respondent's parents at 7:00 a.m., Respondent invited her in. He made coffee, which they drank on the back porch. In June of 1993, when Respondent allowed V.D. to drive him to the empty house of Respondent's friend B.J. The drive was approximately 20-25 miles. Id. They spent 1 1/2 to 2 hours alone together on this trip. In June of 1993, when Respondent met V.D. at the empty house of a different friend of Respondent located on Dunn Avenue. The purpose of this meeting was to review V.D.'s patient records. On at least one occasion, Respondent, having obtained a ride to V.D.'s residence for the purpose of an in-home appointment with V.D.'s son, allowed V.D. to drive him to his then estranged wife's home after the appointment. Respondent acknowledges a therapist's duty to establish clear lines between professional and social relationships. Respondent admitted to "blurring" that line in his relationship with V.D. Respondent admitted that he should not have done many of the activities described above in paragraph seven. Respondent admitted that his behavior created the appearance of impropriety. While V.D. was at the Dunn Avenue home, she reported she observed boxes stored in a manner that made them accessible to anyone entering the home. She did not examine the boxes. The Respondent stated the boxes that V.D. observed were not patient records, but other materials he was storing. He kept records in a locked footlocker. V.D. asked Respondent to destroy her records and those of her son. Respondent admits to destroying V.D.'s patient records and those of her son prior to the end of the statutorily required holding period. Respondent has worked at the Florida State Prison as a "psychological specialist, forensics/corrections" since November 5, 1993. At Florida State Prison, Respondent worked with P.Y., who was a clerk typist for all of the psychologists at the prison. P.Y. and the Respondent car-pooled to work for a time. During the period when Respondent and P.Y. worked together, P.Y. spoke to Respondent regarding her marital difficulties. This was not a professional relationship. Respondent engaged in a very brief sexual relationship with P.Y. This occurred after he learned about her marital difficulties. During her employment at Florida State Prison, P.Y. asked Respondent about V.D., who P.Y. knew casually because both women knew and were friends with Lillian Everetts, who was their hairdresser. P.Y. was privy to information about V.D. and her son which she had acquired from Ms. Everetts. P.Y. commented to Respondent that V.D. appeared very thin and might be anorexic. The Respondent, who had never treated V.D. for an eating disorder, but who had given her the name of a specialist in such matters, advised Mr. Yoe that V.D. had some eating disorders. In a conversation in their office, the Respondent revealed to P.Y. that V.D. had once inquired about hypnotic therapy to determine if she had been molested as a child. V.D. testified that she had engaged in sexual intercourse with Respondent during May and June of 1993. V.D. contemporaneously reported this liaison to Lillian Everetts. The Respondent denies that such a relationship occurred, but admits to seeing V.D. at some of the times and places at which V.D. claims they had sexual liaisons. See paragraph 7 above. The testimony of V.D. is more credible, and the Respondent engaged in a sexual relationship with V.D. in May and June of 1993. Having a sexual relationship, with a former client/patient is a violation of professional standards.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law and the factors in mitigation, it is RECOMMENDED: That the Respondent be placed upon probation; be required to attend courses in professional responsibilities; be restricted from unsupervised practice; and be required to practice with professionals who are advised of these findings and Respondent's violation of these statutes, and who will agree to monitor and supervise Respondent's work. DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1998. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire 1407 Piedmont Drive East Tallahassee, Florida 32312 Elizabeth Renee Alsobrook, Esquire Alsobrook and Dove, P. A. 2074 Thomasville Road Tallahassee, Florida 32302 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Proposed Rule 33.9007(9), Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact Steven Rivera, Petitioner, is currently serving a prison sentence at Walton Correctional Institution at DeFuniak Springs, Florida. He is on his fifth commitment to prison. Respondent supervises the operation of correctional institutions in Florida and promulgates rules governing the operation of the prisons and various subjects relating to inmates of these prisons. The proposed rule here under challenge provides: Any inmate who is serving his fourth commitment to prison or higher shall be excluded from work release if the inmate has previously been given the opportunity to participate in work release, except that an inmate may be given consideration if the inmate has demonstrated outstanding institutional adjustment and if extenuating circumstances exist. Petitioner has been admitted to the work release program in a prior commitment and, with more than four prison commitments is in the class of prisoner covered by this rule. Accordingly, he has standing to challenge the rule. The work release program is intended to motivate the individual offender toward self improvement, to ease the transition from prison into the community, place the inmate in employment to which he or she may return after release from the institution, permit the offender to contribute towards his own support and the support of his or her family, help determine the prisoner's readiness for parole, preserve family and community ties, and permit the offender to develop or maintain occupational skills. (Exhibit 6) The Florida work release program has been in effect for many years allowing Department of Corrections officers the opportunity to gain experience in the effectiveness and efficacy of the program. First commitment offenders are more likely to benefit from work release than are those who have three or more prior commitments. Inmates who have been given one chance in the work release program and are subsequently recommitted to the prison institution have thereby demonstrated that they did not obtain the anticipated benefit of remaining crime free subsequent to being admitted to the work release program. Following a murder committed by a prisoner who escaped from the work release program at another institution, a Task Force was set up to study the work release program and prepare recommendations affecting this program. As a result of this Task Force's recommendations, wide ranging changes to the rules affecting the work release program were promulgated of which the rule here challenged is only one small subsection. Furthermore, prior to the commission of the crime referred to above, there were approximately 4000 prisoners admitted to the work release program. Legislative changes since that time have limited the maximum number of prisoners admitted to the work release program to 2100. Although Petitioner contends that there is no rule definition of commitment, this is a word that is well recognized in the prison community. As defined by one of Respondent's witnesses in these proceedings, each time a prisoner is committed following a release from a prior commitment whether in Florida or in another jurisdiction, this counts as an additional commitment. If the inmate commits an offense while in confinement, is taken to court and receives an additional sentence, this is not counted as an additional commitment. This method of counting commitments inures to the benefit of the prison inmates. Petitioner also contends that the phrase "has demonstrated outstanding institutional adjustment and if extenuating circumstances exist" is arbitrary and vests unbridled discretion in the prison officials. However, admission to the work release program is a privilege which all prisoners admitted to such program must earn. They earn this privilege by adhering to the code of conduct established for prisoners, by participating in education, drug and alcohol abuse programs, and by other acts contributing to earning gain time. Certain classes of prisoners, e.g. those who have committed serious crimes, sex crimes, and crimes evincing a violent disposition must demonstrate more clearly than does the less violent criminal that he is eligible for work release. No one act can show that one prisoner is better deserving for the limited number that can be admitted to the work release program than is another prisoner. Accordingly, it is necessary to consider innumerable factors to determine which are the prisoners most likely to benefit from work release based upon their history and their current conduct in the prison system. A finite list of factors to be considered in determining those most eligible for work release is impracticable because the list would be too numerous and could still omit factors deserving consideration. The proposed rules, including the rule in issue here, provide that certain prisoners are not eligible for work release; but the rule provides two exceptions to this general disqualification, to wit: those who "demonstrate outstanding institutional adjustment and extenuating circumstances." By providing these exceptions, the rule removes the arbitrary exclusion of certain prisoners from work release regardless of their good conduct in prison and demonstration that they have totally reformed and are most unlikely ever to again commit a crime.
