The Issue Whether a proposed amendment to Rule 33-3.0081, Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, William Van Poyck, and the Intervenor, Robert David Roy, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioner and the Intervenor are subject to the rules of the Respondent. The evidence failed to prove that the Petitioner and Intervenor are, or have been, placed in administrative confinement by the Respondent. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, the Florida Department of Corrections, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Rule 33-3.0081, Florida Administrative Code. Rule 33-3.0081, Florida Administrative Code, a rule of the Respondent, governs the placement of an inmate in "administrative confinement". "Administrative confinement" is "the removal of an inmate from the general inmate population for . . . " various specified reasons. Rule 33-3.0081(1), Florida Administrative Code. By letter dated September 27, 1990, the Respondent advised the Joint Administrative Procedures Committee (hereinafter referred to as the "Committee"), of proposed amendments to Rule 33-3.0081, Florida Administrative Code. Be letter dated November 5, 1990, M. Catherine Green, an attorney with the Committee, informed the Respondent that a review of the proposed amendments to Rule 33-3.0081, Florida Administrative Code, had been completed. Ms. Green also informed the Respondent of certain "technical errors" and "substantive errors" that she found with Rule 33-3.0081, Florida Administrative Code. Ms. Green indicated that a "substantive error" referred to "errors which will result in recommended objections to the committee unless they are eliminated prior to adoption." Among the "substantive errors" identified by Ms. Green, was a comment concerning the following portion of Rule 33-3.0081(3), Florida Administrative Code: (3) Placement in administrative confinement shall be for the shortest period of time necessary to accomplish the desired results. Ms. Green's comment concerning the portion of Rule 33-3.0081(3), Florida Administrative Code, quoted in finding of fact 9 was, in pertinent part, as follows: What does "for the shortest period of time necessary to accomplish the desired results" mean? This has the effect of not notifying the inmate of the length of time in which he will be in administrative confinement and the criteria to be considered in releasing him or her. The rule discusses criteria for placing inmates in administrative confinement, but sets no criteria other than "desired results" as to when an inmate shall be released. If the two criteria are the same, please make that clear. Another of the "substantive errors" identified by Ms. Green, was a comment concerning the following portion of Rule 33-3.0081(4)(a), Florida Administrative Code: (4)(a) An inmate may be placed in administrative confinement by the senior correctional officer after an informal hearing when no reasonable alternative exists. The reason for placement shall be explained to the inmate, and he shall be given an opportunity to present his views on the matter to the senior correctional officer. When the senior correctional officer places an inmate in administrative confinement, this action shall be documented on a Report . . ., including the reasons for the action and a summary of the inmate's comments or objections. The inmate may also submit a written statement. Rule 33-3.0081(4)(b), Florida Administrative Code, provides for review of the senior correctional officer's "informal hearing" and Rule 33-3.0081(4)(c), Florida Administrative Code, provides for a 48-hour delay in the "informal hearing" in case of certain emergencies. Ms. Green's comment concerning the portion of Rule 33-3.0081(4)(a), Florida Administrative Code, quoted in finding of fact 11 was, in pertinent part, as follows: Please provide a cross reference to the rules of procedure for an informal hearing. Does the review procedure conflict with provisions of Chapter 33-29, F.A.C.? Please clarify what the phrase "when no reasonable alternative exists" means in reference to an inmate's confinement after an informal hearing. . . . . In a letter dated January 23, 1991, the Respondent, through a Senior Attorney, responded to Ms. Green's comments. The following response to Ms. Green's comments concerning Rule 33- 3.0081(3), Florida Administrative Code, was made: The Department of Corrections will delete the phrase "for the shortest period of time necessary to accomplish the desired results" and replace it with "continue until the factors which created the need for protective management have been resolved". The Respondent subsequently proposed to amend Rule 33-3.0081(3), Florida Administrative Code, by deleting the phrase "for the shortest period of time necessary to accomplish the desired results" and replacing it with the phrase "continue until the factors which created the need for protective management have been resolved". The proposed amendment to Rule 33-3.0081(3), Florida Administrative Code, does not substantively change the circumstances under which an inmate placed in administrative confinement will be returned to the general inmate population. Under Rule 33-3.0081(3), Florida Administrative Code, prior to the proposed amendment, "the shortest time possible" occurred when the factors which necessitated placing an inmate in administrative confinement no longer applied. The proposed amendment merely clarifies when "the shortest time possible" has occurred. The following response to Ms. Green's comments concerning Rule 33- 3.0081(4)(a), Florida Administrative Code, was also made in the January 23, 1991, letter: The Department of Corrections will delete the phrase "an informal hearing" and insert "being advised of an incident or situation which prohibits the inmate from remaining in open population without endangering himself or others or compromising the security of the institution". The Respondent subsequently proposed to amend Rule 33-3.0081(4)(a), Florida Administrative Code, by deleting the terms "informal hearing" and replacing them with the following underlined language: (4)(a) An inmate may be placed in administrative confinement by the senior correctional officer after being advised of a situation or incident which prohibits the inmate from remaining in open population without endangering himself or others or compromising the security of the institution, if the situation cannot be resolved. The reason for placement shall be explained to the inmate, and he shall be given an opportunity to present his views on the matter to the senior correctional officer. When the senior correctional officer places an inmate in administrative confinement, this action shall be documented on a Report . . ., including the reasons for the action and a summary of the inmate's comments or objections. The inmate may also submit a written statement. . . . The proposed amendment to Rule 33-3.0081(4)(a), Florida Administrative Code, does not substantively change the manner in which an inmate is informed that he or she is being placed in administrative confinement. The "informal hearing" previously required in Rule 33-3.0081(4)(a), Florida Administrative Code, required no more than the proposed amendment provides for. By eliminating the terms "informal hearing" the proposed rule amendment eliminates any confusion as to whether some more formal process is to be followed by the Respondent in informing an inmate that he or she is being placed in administrative confinement. The Notice of Proposed Rulemaking which contained the proposed amendments at issue in this proceeding was subsequently filed by the Respondent with the Bureau of Administrative Code, for publication, and with the Committee. The Notice of Proposed Rulemaking included the following "purpose and effect" clause: The proposed amendments are needed in order to correct technical and substantive errors noted by the Joint Administrative Procedures Committee. The proposed amendments provide clarification of policies and procedures regarding administrative confinement and protective management. The purpose and effect clause is consistent with the substantive changes to Rule 33-3.0081(3) and (4)(a), Florida Administrative Code, at issue in this proceeding. The weight of the evidence failed to prove that the proposed amendments to Rule 33-3.0081, Florida Administrative Code, at issue in this proceeding are arbitrary or capricious. The weight of the evidence failed to prove that any of the suggestions concerning Rule 33-3.0081, Florida Administrative Code, made by Ms. Green were ever approved, adopted, or reviewed by the Committee. In fact, Ms. Green indicates in her letter that "substantive errors" she perceived would be recommended as objections to the Committee only if they were not eliminated prior to adoption. Since the "substantive errors" at issue in this proceeding were eliminated, they were apparently never recommended or considered by the Committee.
The Issue Should the Criminal Justice Standards and Training Commission (the Commission) impose discipline on Respondent in association with his Correctional Officer Certificate?
Findings Of Fact Having considered Respondent's comment in requesting a formal hearing, it is inferred that Respondent holds a correctional officer's certificate issued by the Commission. On October 28, 2004, Respondent and Misty Quarles were living together in Gainesville, Florida, as a couple. Ms. Quarles describes their relationship as boyfriend and girlfriend. Respondent determined to end the relationship, to include removing Ms. Quarles' name from the lease for the apartment. An argument ensued. Ms. Quarles left the bedroom and went to the bathroom and closed the door. Respondent opened it and started yelling at Ms. Quarles. Respondent was angry. Respondent pushed Ms. Quarles forcefully. She fell to the ground. When Respondent pushed her down, Ms. Quarles hit her head on the and door the impact left a knot on her head. She got up and pushed Respondent back. The argument continued. Respondent pushed Ms. Quarles again and she landed on the bed in the bedroom. Ms. Quarles then began to pack her belongings to leave. Respondent started gathering some of her clothing and other effects to throw in the dumpster outside the apartment. Ms. Quarles knocked those items out of Respondent's hands. Respondent began yelling again and punched Ms. Quarles on her leg while holding her down on the bed. In trying to stop Respondent from punching her, Ms. Quarles used her right hand to resist the Respondent. He pushed against a joint in her hand, causing a right thumb fracture at the base of the first metacarpal. After that, Ms. Quarles asked Respondent to take her for medical treatment. Respondent took Ms. Quarles to North Florida Regional Medical Center where she was observed to have the fracture, together with abrasions on her nose, under her left eye, and a contusion on her right forehead. Her right hand was also swollen. Ms. Quarles received a splint and was told to use ice and employ elevation and rest to deal with her fracture. She was provided pain medication and referred to an orthopedic physician. Petitioner's Exhibit numbered one is a composite exhibit containing a series of photographs depicting Ms. Quarles physical state after her encounter with the Respondent leading to her injuries. Respondent's actions against Ms. Quarles were against her will and intentionally caused bodily harm. Deputy Robert Wesley of the Alachua County Sheriff's Office came to the hospital to investigate. Based upon his investigation, he arrested Respondent for felony domestic battery involving the incident with Ms. Quarles. The disposition of that arrest was not explained at hearing. There is no indication that Respondent has had prior discipline imposed on his correctional officer's certificate.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding violations of the statutes and rules referred to and revoking Respondent's correctional officer's certificate. DONE AND ENTERED this 31st day of May, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 31st day of May, 2007 COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Curtis Coleman, Jr. Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Rampage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue to be determined in this case is whether Respondent, a certified correctional officer, committed the offenses alleged in the Administrative Complaint, and if so, what discipline or penalty is appropriate.
Findings Of Fact Petitioner, Criminal Justice Standards and Training Commission (Commission), is the agency of the State of Florida vested with the statutory authority pursuant to Section 943.1395, Florida Statutes, to certify the employment of correctional officers. Respondent, Loretta L. Scott, is a certified correctional officer holding certificate number 157788 issued by the Commission. At all times material to the allegations of the Administrative Complaint, Respondent was employed, and on duty as a correctional officer at the North Florida Reception Center (NFRC), a correctional facility of the DOC. On July 15, 1995, an incident of prisoner abuse occurred at NFRC involving the striking of an inmate, John Graham, by Corrections Captain Bailes during a formation of the inmates in the yard. The day of the incident was Respondent's first day on duty as an officer trainee at NFRC. Respondent was assigned to the team of officers on duty in the NFRC yard at the time of the incident. At some time prior to the incident, Respondent had left the yard for a short while to use the bathroom. After the incident, inmate Graham was escorted from the yard to the NFRC hospital by Captain Bailes and other correctional officers. Respondent was present and in the immediate area of the yard during the course of the incident, and assisted in escorting inmate Graham to the hospital. On or about July 27, 1995, Respondent was twice questioned under oath by Inspector Keith Adams concerning the incident of abuse of inmate Graham. The transcripts of the interviews were admitted as Petitioner's Exhibit 3. Respondent denied witnessing the striking of inmate Graham by Captain Bailes, and initially denied accompanying inmate Graham to the NFRC hospital; however, during the afternoon interview on July 27, 1995, Respondent stated that she assisted in accompanying inmate Graham to the NFRC hospital. Respondent again testified at hearing that she was not present on the NFRC yard, and did not observe the incident of abuse of inmate Graham, but may have been one of the officers accompanying inmate Graham to the hospital. Establishing the witnesses to the incident of prisoner abuse was a material aspect of the investigation conducted by the DOC into this matter. Respondent was not candid and forthcoming in her interviews with Inspector Adams. Respondent was part of the team of officers on the NFRC yard at the time of the incident and was observed on the yard during the time of the incident by several witnesses. While Respondent may have been away from the NFRC yard for a short period of time on July 15, 1995, Respondent was clearly present and accompanied inmate Graham to the NFRC hospital where other matters significant to the internal investigation occurred. Respondent's disclaimer of any material knowledge of the circumstances surrounding the incident of abuse of inmate Graham is not consistent with the evidence of record, and constituted a material misrepresentation to the investigating officer. As indicated above, July 15, 1995, was Respondent's first day on duty in the yard. She had not completed her training and was inexperienced as a corrections officer. The incident of prisoner abuse, which occurred on July 15, 1995, involved a high-ranking corrections officer, and resulted in significant internal personnel ramifications at NFRC.
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 suspending Respondent's certificate for a period not to exceed one year. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUMCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998. COPIES FURNISHED: Mark P. Brewer, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Loretta L. Scott, pro se 4360 Outrigger Lane Tampa, Florida 33615 A. Leon Lowry, II, Director Division of Criminal Justice Standards & Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Post Office Box 1489 Tallahassee, Florida 32302
The Issue The two issues in this case are whether the Petitioner had been convicted of an offense involving assault, battery, or force on a person except in self- defense, and whether he concealed this on his application.
Findings Of Fact The Petitioner, Harry Paul Hett, applied to the Department of State for licensure as an unarmed security guard. The Department denied Petitioner's application. The parties stipulated that, except for the grounds stated by the Department in its letter of denial which are at issue, the Petitioner is qualified for licensure. In 1977, Petitioner was arrested for rape. While awaiting trial, he entered a plea under the mentally disordered sex offender statute, was found guilty, and was sent to Florida State Hospital on August 29, 1977. Subsequently, he was released from Florida State Hospital upon a determination that he was competent. Because it was determined the Petitioner was not qualified as a mentally disordered sex offender and had been adjudicated guilty, on June 1, 1978, he was placed on 15 years probation. As part of his probation, Petitioner was ordered to continue outpatient care. On February 6, 1981, an affidavit of probation violation was filed against the Petitioner. He was arrested on March 9, 1981, and charged with lewd and lascivious conduct (child molestation) and probation violation. On March 26, 1981, Petitioner pled guilty to probation violation and was sentenced to five years in Florida State prison with credit for time previously served. The Petitioner was released early in 1983 and subsequently was employed as an unarmed security guard. Petitioner's application revealed his arrest for lewd and lascivious conduct, which was dealt with by the court as part of the Petitioner's probation violation. On September 25, 1981, while being held by the authorities in Hillsborough County, the Petitioner was held in contempt by the court in Pinellas County, Florida, for failure to appear. When the Petitioner must recall the events which surrounded his arrest for lewd and lascivious conduct, he becomes emotionally upset. At the hearing, this affected his recollection of those events surrounding his offenses. Because he has back problems, Petitioner cannot obtain employment as a laborer. While working as an unarmed security guard, the Petitioner was assigned to a variety of posts such as the local colosseum, malls, and shopping centers. Petitioner has a history of inappropriate sexual conduct associated with alcohol abuse. At the time of this hearing, the Petitioner was not attending any counseling sessions or Alcoholics Anonymous meetings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of State deny licensure as an unarmed security guard to the Petitioner. DONE and RECOMMENDED this 7th day of November, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1983. COPIES FURNISHED: Mr. Harry Paul Hett 7317 Las Palmas Court Tampa, Florida 33614 Stephen Nall, Esquire Office of General Counsel Department of State The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
