The purpose and effect of the rule amendment is to revise the rules relating to suspension and reinstatement of visiting privileges. Unused definitions are stricken and incorporated elsewhere within the rule text. New language clarifies the factors ...

 

DEPARTMENT OF CORRECTIONS

RULE NO.: RULE TITLE:
33-601.713: Inmate Visiting - Definitions
33-601.731: Suspension of Visiting Privileges
33-601.732: Reinstatement of Suspended Visiting Privileges

PURPOSE AND EFFECT: The purpose and effect of the rule amendment is to revise the rules relating to suspension and reinstatement of visiting privileges. Unused definitions are stricken and incorporated elsewhere within the rule text. New language clarifies the factors the ICT shall consider for suspension of visiting privileges. Two subsections of the rules are combined to create a list of offenses for which a finding of guilt will be considered by the ICT for suspension of visiting privileges. Form NI1-102, Visiting Privileges Suspension Matrix, is amended to update suspension timeframes. New language authorizes the regional director to consider visiting suspensions outside the Form NI1-102 matrix time frames, including indefinite suspensions, in specific circumstances and the applicable process. The amendments specify the authority of the regional director, warden or designee concerning reinstatement of visiting privileges based on the type and duration of the suspension and factors provided in the rule.

SUMMARY: The amendments strike unused definitions; provide the factors to be considered for suspension of visitation privileges; specify the offenses for which suspension of visiting privileges shall be considered; amend Form NI1-102, Visiting Privileges Suspension Matrix; authorize the regional director to suspend visitation for timeframes outside the matrix, including indefinite suspensions, in specific circumstances; clarify the authority of the regional director, warden or designee concerning reinstatement of visiting privileges and the factors to be considered for reinstatement.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: upon review of the proposed changes to these rules and incorporated forms, the department has determined that the amendments will not exceed any one of the economic analysis criteria in a SERC as set forth in Section 120.541(2)(a), F.S.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 944.09 FS.
LAW IMPLEMENTED: 944.09, 944.23, 944.8031 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAW.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULES IS: Laura Gallagher, 501 S. Calhoun Street, Tallahassee, Florida 32399-2500

 

THE FULL TEXT OF THE PROPOSED RULES IS:

33-601.713 Inmate Visiting – Definitions.

(1) through (2) No change.

(3) “Emancipated Minor” refers to a visitor seventeen years of age or younger who furnishes written proof of emancipation and attaches a copy to Form DC6-111A, Request for Visiting Privileges. Form DC6-111A is incorporated by reference in Rule 33-601.737, F.A.C. The effective date of the form is 10-11.

(4) through (16) No change.

(17) “Major Rule Violation” for the purpose of Rules 33-601.713 through 33-601.737, F.A.C., refers to any assault, battery, or attempted assault or battery; any intentional lewd or lascivious exhibition in the presence of staff or visitors; any spoken or written threat towards any person; inciting, attempting to incite, or participating in any riot, strike, mutinous act or disturbance; fighting; possession of weapons, ammunition, explosives, or escape paraphernalia; and any escape or escape attempt.

(18) Lewd or Lascivious Exhibition – An inmate commits a lewd or lascivious exhibition when the inmate:

(a) Intentionally masturbates;

(b) Intentionally exposes the genitals without authorization; or

(c) Intentionally commits any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity in the presence of a staff member or volunteer.

Rulemaking Authority 944.09 FS. Law Implemented 20.315, 944.09, 944.23 FS. History–New 11-18-01, Amended 5-27-02, 9-29-03, 3-7-04, 12-6-04, 9-8-11,________.

 

33-601.731 Suspension of Visiting Privileges.

(1) Suspension of Inmate Visiting Privileges.

(a) Suspension, including indefinite suspension, of an inmate’s visiting privileges shall be considered by the ICT as a management tool independent of any disciplinary action taken pursuant to Rules 33-601.301 through 33-601.314, F.A.C. The ICT shall consider the following factors when contemplating a suspension of an inmate’s visitation privileges:

1. Allowing for continued visiting privileges would present a threat to the safe and secure operation of the institution, or to the security and operational integrity of visiting area;

2. The severity of the precipitating conduct/offense(s);

3. The inmate’s placement or pending placement into a special status such as close management, administrative confinement, disciplinary confinement, or maximum management would on its own result in the appropriate visitation restriction;

4. The suspension of visiting privileges will be a significant detriment to the inmate’s successful reentry into society by hindering maintenance of community and family ties.

(b) Indefinite Ssuspension of an inmate’s visiting privileges shall be considered by the ICT as a management tool only when an inmate is found guilty of the following offenses:

1. Any major rule violation which occurred during visiting, is visiting-related conduct, or is reasonably connected to the visitation process; as defined as Rule 33-601.713, F.A.C.

2. No change.

3. Possessing any firearms, dangerous weapons, explosives or explosive devices;

4. Lewd or lascivious exhibition by intentionally masturbating, intentionally exposing genitals in a lewd or lascivious manner, or intentionally committing any other sexual act in the presence of a staff member, contracted staff member or visitor;

(c) An inmate shall be subject to suspension of visiting privileges by the IOCT as a management tool when the inmate is found guilty of the following disciplinary offenses:

5. Participation in a sexual assault or battery;

6.1. Committing or engaging in sexual misconduct (i.e., nudity, sexual acts with or without others, willful exposure of private body parts, or soliciting sexual acts from others);.

7. Participation in an escape or attempted escape;

8. Possession of escape paraphernalia or any other item that presents a threat to the safe and secure operation of the institution;

9. An incident causing death;

10. Any physical assault on staff causing injury or that could have caused injury;

11. The taking of a hostage(s);

12.2. Possessing or passing money;.

13.3. Possessing or using drugs or refusing to submit to substance abuse testing;.

14.4. Possessing or using intoxicating beverages;.

15.5. Possessing a recording device.

6. Violation of visiting rules.

(c)(d) The ICT shall suspend the visiting privileges of any inmate subject to a pending investigation for escape, attempted escape, or possession of escape paraphernalia until the investigation is complete. If the inmate is found guilty, the ICT shall consider suspension of the inmate’s visiting privileges pursuant to paragraph (1)(b) of this rule. If the inmate is not found guilty, the ICT shall immediately reinstate the inmate’s visiting privileges.

(d)(e) If an inmate is found guilty of an offense listed in paragraph (1)(b)(c), the ICT shall suspend the inmate’s visiting privileges for the length of time specified on Form NI1-102, Visiting Privileges Suspension Matrix, http://www.flrules.org/Gateway/reference.asp?No=Ref-00539 Form NI1-102 is hereby incorporated by reference. Copies of the form are available from the Forms Control Administrator, 501 South Calhoun Street, Tallahassee, Florida 32399-2500. The effective date of the form is _________September, 2011. If an inmate’s visiting privileges are suspended pursuant to this rule and the inmate receives a subsequent guilty finding for one of the offenses listed in paragraph (1)(b)(c), the inmate is subject to an increased period of suspension as follows:

1. If the subsequent offense occurs within two years of a guilty finding for the same offense, the inmate’s visiting privileges shall be suspended for the length of time specified on Form NI1-102 for subsequent offenses. This period of suspension shall be concurrent with any period of suspension remaining as a result of the previous offense, not to exceed a total of one two years from the time of the subsequent offense.

2. If the subsequent offense is different from the previous offense, the inmate’s visiting privileges shall be suspended for the length of time specified on Form NI1-102 for an initial violation. However, this period of suspension shall be concurrent with any period of suspension remaining as a result of the previous offense, not to exceed a total of one two years from the time of the subsequent offense.

(e) In lieu of suspending an inmate’s visiting privileges, the ICT is authorized to consider placement of an inmate in non-contact visitation status as provided in Rule 33-601.735, F.A.C., for offenses listed in paragraph (1)(b)(c).

(f) The regional director shall consider, as a management tool, visiting suspensions outside the timeframe limits of the Visiting Privileges Suspension Matrix, Form NI1-102, up to and including indefinite suspensions, for those inmates who have demonstrated through continued behavior to be a chronic and recurring management problem or it has been determined that the inmate committed such an egregious act(s) that threatens the safety of others, threatens the security, order or effective management of the institution, or otherwise demonstrates an inability to respect and honor the visiting privileges bestowed upon him/her. The ICT shall submit a detailed recommendation to the regional director outlining the reasons for its recommendation. The recommendation and the regional director’s decision shall be recorded in the department’s electronic inmate database and the inmate will be notified accordingly.

(2)(a) through (b) No change.

(c) If a visitor is determined to have committed found guilty of an offense listed in paragraph (2)(b), the warden or designee shall suspend the visitor’s visiting privileges for the period of time specified on Form NI1-102, Visiting Privileges Suspension Matrix. If a visitor’s visiting privileges are suspended pursuant to this rule and the visitor subsequently commits one of the offenses listed in paragraph (2)(b), the visitor is subject to an increased period of suspension as follows:

1. through 2. No change.

(3) through (4) No change.

Rulemaking Authority 944.09 FS. Law Implemented 944.09, 944.23, 944.47, 944.8031 FS. History–New 11-18-01, Amended 5-27-02, 9-29-03, 10-4-07, 1-8-09, 10-23-11,__________.

 

33-601.732 Reinstatement of Suspended Visiting Privileges.

(1) The warden or designee shall approve or deny requests for reinstatement of an inmate’s suspended visiting privileges except in those cases in which the regional director was the suspending authority. The inmate shall submit a written request for reinstatement to the warden or if applicable, the regional director on Form DC6-236, Inmate Request. Form DC6-236 is incorporated by reference in Rule 33-103.00519, F.A.C. The effective date of the form is 6-12.

(a) Reinstatement of indefinitely suspended privileges shall only be considered after two years from imposition.

1. The regional director warden or designee shall review the request, render a final decision and notify the inmate concerned.

2. No change.

(b) Privileges suspended for two years or less shall not be considered for reinstatement by the regional director for a period of one year. Should the inmate be denied, the inmate may not make another request for six months from the last decision requesting reinstatement.

(c) Privileges suspended for one year or less shall not be considered for reinstatement by the warden or designee until at least six months from the date of suspension. Should the inmate be denied reinstatement, the inmate may not make another request.

(d) The regional director, warden or designee shall consider the following factors in considering whether an inmate’s visitation privileges shall be reinstated:

1. through 3. No change.

(2) No change.

Rulemaking Authority 944.09 FS. Law Implemented 944.09, 944.23, 944.8031 FS. History–New 11-18-01, Amended 5-27-02, 9-29-03, 2-13-12,________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: James Upchurch, Director, Office of Institutions

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Kenneth S. Tucker, Secretary

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: July 17, 2012

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: June 8, 2012