92-002392RX Archie D. White vs. Probation And Parole Services Status: Closed DOAH Final Order on Friday, June 26, 1992.

Summary: Rule held to be a valid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARCHIE D. WHITE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2392RXP

)

PAROLE AND PROBATION COMMISSION, )

)

Respondent. )

__________________________________)

JEFFREY S. MCMAHON, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2685RXP

)

PAROLE AND PROBATION COMMISSION, )

)

Respondent. )

__________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, K. N. Ayers, held a formal hearing in the above-

styled case on May 22, 1992, at Tallahassee, Florida.

APPEARANCES

For Petitioner Peter B. Dolinger

White: Qualified Representative

Florida Prison Legal Research

and Representation Services

35246 U.S. Highway 19 North, Suite 111

Palm Harbor, Florida 34684

For Petitioner Richard A. Belz, Esquire

McMahon: Florida Institutional Legal Services

925 Northwest 56th Terrace

Gainesville, Florida 32605

For Respondent: William A. Camper, Esquire

Kurt E. Ahrendt, Esquire

Florida Parole Commission

1309 Winewood Boulevard, Building 6

Tallahassee, FL 32399-2450

STATEMENT OF THE ISSUES

Whether Rule 23-22.008(3)(d) and (e), Florida Administrative Code,

constitutes an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

By Petition For Determination Of The Invalidity Of An Existing Rule dated

April 17, 1992, Archie D. White, by and through his representative, challenges

the validity of Rule 23-22.008(3)(d) and (e)4, 10, and 35, Florida

Administrative Code. As grounds therefor, it is generally alleged the rules

exceed the grant of statutory authority, are arbitrary, and capricious. This

case was initially scheduled to be held on May 14, 1992.

By Petition For Administrative Determination received in this office April

30, 1992, Jeffrey S. McMahon, by and through his attorney, challenged the

validity of Rule 23-22.008(3)(e), Florida Administrative Code. As grounds

therefor, it alleged the Commission exceeded its legislative grant of rulemaking

authority and that the rule is vague, fails to establish adequate standards or

vests unbridled discretion in the Commission, and is arbitrary and capricious.

The two cases were consolidated for hearing, and following a telephone

conference on Petitioner White's Motion For Continuance, the hearing was

rescheduled to May 22, 1992, and was held as scheduled. At the hearing, motions

to dismiss for lack of standing were denied. Thereafter, Petitioner called two

witnesses, both employed by the Parole Commission, Respondent called one

witness, and 14 exhibits were admitted into evidence. Proposed findings have

been submitted by the partieseatment accorded those proposed findings is

contained in the Appendix attached hereto and made a part hereof.

Having fully considered all evidence presented, I submit the following.

FINDINGS OF FACT

1. Petitioner, Archie D. White, is an inmate in the Florida Department of

Corrections (DOC) serving a 4 1/2 year sentence for felony DUI, and Petitioner

Jeffrey S. McMahon is an inmate of the DOC at Marion Correctional Institute Work

Camp. Both Petitioner's are eligible for participation in the DOC Control

Release Program in which Control Release Dates (CRD) are established for

prisoners.

2. The Control Release Authority was established in 1989 by Section

947.146, Florida Statutes, to establish and implement a system of uniform

criteria for the determination of the number and types of inmates who must be

released into the community to maintain the state prison system below 97.5

percent of its lawful capacity as defined in Section 944.096, Florida Statutes.

3. In establishing the Control Release Authority, the Legislature

designated the Parole Commission to publish rules and to operate the program.

The statute exempted prisoners who had been convicted of named offenses from

being selected for early release.

4. In determining eligibility for control release, the statute requires

the CRD be based upon a system of uniform criteria which shall include, but not

be limited to, present offenses for which the person is committed, past criminal

conduct, length of cumulative sentences, and the age of the offender at the time

of commitment.

5. Inherent in control release is the concept that the number of inmates

requiring release due to prison population will vary and that those inmates less

likely to constitute a danger to the public should be selected. No inmate has a

right to control release.

6. In many respects control release is similar to parole in determining

eligibility, and evidence to this effect was presented. This fact could be

inferred simply by reason of the Legislature conferring the running of the

program to the Parole Commission and designating members of the Parole

Commission as the Control Release Authority.

7. The system of uniform criteria established pursuant to statutory

direction was modeled from the instrument currently used to determine relative

release risk for parole-eligible inmates. The salient factors are similar, the

offense severity mechanism is similar, and the aggravating factors are similar.

8. The Commission initially utilizes the Control Release Salient Factor

Scoring System contained in Rule 23-22.008(3)(a),(b),(c) and (d), Florida

Administrative Code. This system provides for the determination of control

release dates by:

a. Creating eight individual "indices" which are

collectively called "salient factors." Salient factors

is defined in Rule 23-22.006(27);

b. Creating a "Severity of Offense Behavior" category;

and

c. Using the "Control Release Matrix Grid" which

indicates an objective measurement of control release

suitability and supervisional term by scoring each

inmate's salient factors in relation to the severity

and type of offense behavior resulting in commitment.

9. In addition to the Control Release Salient Factor Scoring System

described above, the Commission also considers "aggravation" and "mitigation."

10. Aggravating factors (of which 27 are named) are listed in Rule 23-

22.008(3)(e), Florida Administrative Code, and mitigating factors (of which 24

are named) are listed in Rule 23-22.008(3)(f), Florida Administrative Code.

11. Neither aggravating nor mitigating factors can readily be incorporated

into the salient factor mechanism because they cannot be quantitatively

measured, and their multiplicity would make the scoring mechanism too awkward.

12. Although one witness testified that if only one aggravating factor is

found the CRD is automatically placed at the expiration of the inmate's

sentence, other testimony deemed more accurate is that when the CRD is

ultimately established, both aggravating and mitigating factors are considered,

if both are present, and the mitigating factors may well supercede the

aggravating factors.

13. Petitioner White challenges the propriety of including the offense of

Felony Driving While Intoxicated in the classification of property offense.

Criminal offenses are generally placed in three categories: property, violent,

and drug. Felony DUI is neither violent nor drug, and placing this offense in

the property category in Rule 22-23.008(3)(d)6II is not arbitrary or capricious.

14. When an inmate is received in the DOC, he/she is accompanied with

documents relating to the inmate. The Respondent's Field Examiner uses these

documents from which he makes a recommendation to Respondent's central office in

Tallahassee with respect to the inmate's CRD. In making these recommendations,

the Field Examiners note only those aggravating and mitigating factors which are

contained in subsections (e) and (f) of the rule here challenged. Weighing the

aggravating and mitigating factors requires the exercise of some judgment on the

part of the examiner. Similarly, judgment is exercised by the two Commissioners

who make the final determination of CRD for each inmate.

15. Petitioners contend the rule is invalid because there are no specific

standards promulgated by which the Commissioners determine how to balance or

weigh the aggravating and mitigating factors to determine the effect both are to

be given in establishing the CRD.

16. Field Examiners and Commissioners are selected only from the

population with experience in the corrections field. In weighing the

aggravating and mitigating factors, no iron clad rules can be established due to

the complexity of the facts pertaining to each inmate. Accordingly, exercise of

sound judgment is required. Leaving room for the exercise of judgment in

determining which inmate is deemed less likely to be a danger to the public if

released early on a CRD is essential to the sound and consistent carrying out of

the program. Exercise of sound judgment under these circumstances is not

arbitrary and capricious.

17. Petitioners further contend that the rule is invalid because the

aggravating and mitigating factors utilized are not further defined in the

rules. One phrase questioned in this manner is "multiple separate offenses."

While the meaning of this phrase may not be readily apparent to one unfamiliar

with adjudication and sentencing, the phrase has a well established meaning in

the corrections, probation and parole field.

18. Other aggravating factor language questioned by Petitioners as not

further defined are "inmate has a history of alcohol or narcotic abuse" and

"trivial." Testimony that an aggravation factor is applied when the crimes

committed by the inmate show a pattern of being alcohol or drug related and not

when the alcohol or drug abuse are unrelated to the crimes committed by the

inmate, is the logical interpretation to be expected when the overall aim of the

control release program is considered. Similarly, the word "trivial" is a word

of common and wide usage, and in these rules it is given its well recognized

meaning. While it is possible for different people to make different findings

regarding whether past offenses committed by the inmate were of a trivial

nature, the people here making that determination are experienced in the field

of corrections. Further, before a control release date is finally established,

the recommendation of the Field Examiner is reviewed by two Commissioners. If

these two Commissioners do not agree on the CRD, a third Commissioner has the

deciding vote. Thus, no CRD is established without the approval of two

Commissioners.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings.

20. As inmates in the Florida Correctional System and subject to receiving

a CRD, both Petitioners have standing to challenge the rules affecting their

CRD.

21. The rules here challenged are alleged to be an invalid exercise of

delegated legislative authority. Section 120.52(8), Florida Statutes, provides:

(8) "Invalid exercise of delegated legislative

authority" means action which goes beyond

the powers, functions, and duties delegated

by the Legislature. A proposed or existing

rule is an invalid exercise of delegated

legislative authority if one or more of the

following apply:

(a) The agency has materially failed to follow

the applicable rulemaking procedures set

forth in Section 120.54;

(b) The agency has exceeded its grant of rule-

making authority, citation to which is

required by Section 120.54(7);

(c) The rule enlarges, modifies, or contravenes

the specific provisions of law implemented,

citation to which is required by Section

120.54(7);

(d) The rule is vague, fails to establish ade-

quate standards for agency decisions, or

vest unbridled discretion in the agency; or

(e) The rule is arbitrary or capricious.

22. Here no allegation is made that prescribed rulemaking procedures were

not followed. The allegations are that the agency went beyond the authority

granted by the Legislature, and the rule is arbitrary or capricious.

Specifically, the Petitioners challenge the authority of the Commission to enact

the rule providing for aggravating factors to be considered in establishing an

inmate's CRD.

23. In these proceedings, the Petitioners have the burden to prove, by a

preponderance of the evidence, that the challenged rules are invalid. Agrico

Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2nd

DCA 1979).

24. Respondent's general rulemaking authority is contained in Section

947.07, Florida Statutes, which provides:

The Commission shall have the power to make

such rules and regulations as it deems best

for its governance, including among other

things rules of practice and procedure and

rules prescribing qualifications to be

possessed by its employees.

25. More specifically Section 947.146, Florida Statutes, established the

Control Release Authority and provides in pertinent part:

* * *

(2) The authority shall have as its primary

purpose the implementation of a system

of uniform criteria for the determination

of the number and type inmates who must

be released into the community under

control release in order to maintain

the state prison system below 97.5 per-

cent of its lawful capacity as defined

in s. 944.096. No inmate has a right to

control release. Control release is an

administrative function solely used to

manage the state prison population

within lawful capacity.

* * *

(4) A panel of no fewer than two member of

the authority shall establish a control

release date for each parole ineligible

inmate committed to the department

within 90 days following notification

by the department of receipt of the

inmate, . . .

(5) Control release date shall be based upon

a system of uniform criteria which shall

include, but not be limited to, present

offenses for which the person is committed,

past criminal conduct, length of cummula-

tive sentences, and age of the offender at

the time of commitment.

* * *

(7) The authority shall have the power and

duty to:

(a) Extend or advance the control release

date of any inmate for whom a date has

been established, based upon:

1. Recently discovered information of:

a. Past criminal conduct;

b. Verified threats by inmates provided

by victims, law enforcement, or the

department.

c. History of abuse or addiction to a

chemical substance verified by a

presentence or postsentence investi-

gative report;

d. The inmates ties to organized crime;

e. A change in the inmates sentence

structure;

f. Cooperation with law enforcement;

g. Strong community support; and

h. A documented mental condition as a

factor for future criminal behavior.

2. The recommendation of the department

regarding institutional adjustment by

the inmate, which may include refusal

by the inmate to sign the agreement to

the conditions of the release plan; or

3. Lawful capacity of the state prison

system.

(b) Determine the terms, conditions, and

period of time of control release for

persons released pursuant to this sec-

tion.

(c) Determine violations of control release

and what action shall be taken with

reference thereto.

(d) Provide for victim input into the

decisionmaking process for placing

persons on controlled release.

(e) Make such investigations as may be

necessary for the purpose of estab-

lishing, modifying, or revoking a

control release date.

(f) Contract with a public defender or

private counsel for representation

of indigent persons charged with

violating the terms of control

release.

(g) Adopt such rules as the authority

deems necessary for implementation

of the provisions of this section.

26. The earlier cases strictly limiting the rulemaking authority of

governmental agencies to the specific language of the statute have largely been

overruled and that legal concept abandoned. As stated in Agrico, supra, at 365

So.2d 763:

The burden is upon one who attacks the proposed

rule to show that the agency, if it adopts the

rule, would exceed its authority; that the

requirements of the rule are not appropriate to

the ends specified in the legislative act;

that the requirements contained in the rule are

not reasonably related to the purpose of the

enabling legislation or that the proposed rule

or the requirements thereof are arbitrary or

capricious.

A capricious action is one which is taken

without thought or reason or irrationally.

An arbitrary decision is one not supported

by facts or logic, or is despotic.

27. Where lawful rulemaking authority is clearly conferred or fairly

implied, and it is consistent with the general statutory duty of the agency, a

wider discretion is accorded it in the exercise of such authority. Statutory

authority to make reasonable and just rules and regulations to carry into effect

a legislative purpose necessarily includes the power to make all rules and

regulations needed or expedient to accomplish the general statutory purpose.

State Board of Education v. Nelson, 372 So.2d 114 (Fla. 1st DCA 1979). Accord,

State Department of Health and Rehabilitative Services v. Framat Realty, 407

So.2d 311 (Fla. 1st DCA 1981).

28. Agencies are accorded wide discretion in the exercise of their lawful

rulemaking authority, clearly conferred or fairly implied, and consistent with

the agencies' general statutory duties. An agency's interpretation of the

statute it administers is entitled to great weight and is not to be overturned

unless clearly erroneous. Where, as here the agency's interpretation of a

statute has been promulgated in rulemaking proceedings, the validity of such

rule must be upheld if it is reasonably related to the purpose of the

legislation interpreted and is not arbitrary and capricious. Moreover, the

agency's interpretation of a statute need not be the sole possible

interpretation or even the most desirable one; it need only be within the range

of possible interpretations. Department of Professional Regulation, Board of

Medicine v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984).

29. The challenger of the rule, among other things, is required to show

that the requirements of the rule are inappropriate to the ends specified in the

legislative act, or that the requirements proposed are not reasonably related to

the purpose of the enabling legislation, or that the rule is arbitrary or

capricious. Florida League of Cities, et al. v. Department of Environmental

Regulation, 16 FLW D 1933 (Fla. 1st DCA 1991).

30. From the evidence presented, it is clear that the Control Release

Authority, wearing the same hat as the Probation Commission, was directed by the

Legislature to establish uniform procedures to select those inmates for the

earliest release dates who are less likely to present a danger to the public.

The same philosophy used in selecting parolees is applicable to establishing

CRDs. Accordingly, many factors used in establishing parole dates, including

aggravating factors, are applicable in establishing a control release date for

each inmate eligible for a CRD.

31. The only evidence submitted that the challenged rule is arbitrary or

capricious is the bare allegation that the plain language of the rule is

insufficient from which the intent of the rule can be determined. No words of

art are used in these rules which require a specific definition and any language

used therein which may not be fully understood by the ordinary layman is

consistently interpreted by the correctional authorities who carry out the

provisions of the rules and establish an inmate's CRD.

32. In summary, it is sufficient to say that the challenged rules are not

arbitrary or capricious, nor do they exceed the grant of legislative authority

to enact rules and regulations for determining the appropriate control release

date for each inmate of the Florida Correctional System.

ORDER

Accordingly, it is ORDERED:

The challenge of Archie D. White and Jeffrey S. McMahon to the validity of

Rule 23-22.008(3)(d) and (e), Florida Administrative Code, be dismissed.

DONE and ORDERED this 26th day of June, 1992, in Tallahassee, Florida.

__________________________________

K. N. AYERS

Hearing Officer

Division of Administrative Hearings

The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of June, 1992.

APPENDIX TO FINAL ORDER, CASE NOS. 92-2392RXP AND 92-2685RXP

Proposed findings submitted by Petitioner White are accepted, except as

noted below. Those neither excepted below nor included in the Hearing Officer's

findings of fact were deemed unnecessary to the conclusions reached.

18. Rejected. Those acts constituting aggravating factors are

clearly stated in the rule.

19. Rejected.

21. The word "subjective" is rejected.

22. Second sentence rejected.

23. Word "(subjectively)" rejected. Otherwise accepted as

testimony of a witness, not as fact. See HO #14.

24. Rejected as inaccurate summary of this witness' testimony.

26. (second time this number used) Rejected as mere opinion

and not a fact.

Proposed findings submitted by Petitioner McMahon are accepted, except as

noted below. Those neither excepted below nor included in H.O. findings were

deemed unnecessary to the conclusions reached.

27. Accepted. However, the implication that this results in

an arbitrary CRD is rejected. See H.O. #14.

Proposed findings submitted by Respondent are generally accepted, except as

noted below. Those proposed findings not included in H.O. findings were deemed

unnecessary to the conclusions reached.

12. Accepted as testimony of Strickland. Rejected as fact

because it omits mitigating factors.

COPIES FURNISHED:

Peter B. Dolinger

Qualified Representative

Florida Prison Legal Research

and Representation Services

35246 U.S. Highway 19 North

Suite 111

Palm Harbor, FL 34684

Richard A. Belz, Esquire

Florida Institutional

Legal Services

925 Northwest 56th Terrace

Gainesville, FL 32605

William A. Camper, Esquire

Kurt E. Ahrendt, Esquire

Florida Parole Commission

1309 Winewood Boulevard

Building 6

Tallahassee, FL 32399-2450

Harry K. Singleton, Jr.

Secretary

Department of Corrections

2601 Blairstone Road

Tallahassee, FL 32399-2500

Louis A. Vargas

General Counsel

Department of Corrections

2601 Blairstone Road

Tallahassee, FL 32399-2500

Donna Malphurs

Room 439

Department of Corrections

2601 Blairstone Road

Tallahassee, FL 32399-2500

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND 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.