STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROY H. SUMMER, MICHAEL RAY BAKER ) and RALPH GARVIN, )
)
Petitioner, )
)
vs. ) CASE NO. 82-676RX
)
DEPARTMENT OF CORRECTIONS, )
)
Respondent. )
)
RECOMMENDED ORDER
The Petitioners have filed a "Petition for Administrative Determination" under the provisions of Section 120.56, Florida Statutes. Petitioners are seeking a determination that an interoffice memorandum issued by the superintendent of Polk Correctional Institution is an improperly promulgated rule, and therefore constitutes an invalid exercise of delegated legislative authority. The director of the Division of Administrative Hearings issued an Order of Assignment on March 10, 1982. The final hearing was conducted on April 6, 1982, in accordance with a notice issued March 16, 1982.
After the initial petition was filed, two additional petitioners requested to be joined in the proceeding through a Petition for Amendment. The request was granted on the record at the final hearing. At the hearing each of the petitioners testified as witnesses on their own behalf. J. F. Tompkins, the Superintendent of Polk Correctional Institution, testified on behalf of the Department of Corrections. Petitioners' Exhibits 1 and 2 and Respondent's Exhibits 1 and 2 were offered into evidence and received. The parties have submitted post-hearing legal memoranda.
The issue in this proceeding is whether an interoffice memorandum dated February 18, 1982, which was issued by the superintendent of Polk Correctional Institution, constitutes a rule, and if so, whether it is an invalid exercise of delegated legislative authority. Petitioners contend that the memorandum is a rule, that it was not properly promulgated as a rule, and that it is therefore an invalid exercise of delegated legislative authority. The Department of Corrections contends that petitioners lack standing to maintain this proceeding, and that the memorandum is not a rule because it was not issued by an agency and because it does not enjoy general applicability.
FINDINGS OF FACT
Petitioners are inmates presently incarcerated at Polk Correctional Institution, Polk City, Florida. Polk Correctional Institution is a prison facility maintained by the Florida Department of Corrections.
The superintendent of Polk Correctional Institution issued a directive, which is dated February 18, 1982, and entitled "Interoffice Memorandum". The
memorandum is directed to all inmates and relates to visiting procedures. It provides:
Effective Saturday, March 6, 1982, inmates
will no longer be permitted to receive visitors on both Saturday and Sunday of the same week.
Visiting policy in the past has permitted inmates to receive visits on both Saturday and Sunday of the same week, but not from the same visitor.
This change means that you must receive all your visitors on either Saturday or Sunday. If your (sic) receive a visit on Saturday, you will not be permitted to receive another visit on Sunday. This change in visiting procedure will help alleviate the overcrowded situation in the visitor's park and allow you and your family to visit together more comfortably.
The memorandum applies only within Polk Correctional Institution. It was issued by the superintendent without any effort being made to promulgate it as a rule. No effort was made to publish notice, to give affected persons an opportunity to be heard, nor to conduct hearings and allow input from members of the public.
The superintendent did not construe the memorandum as being a rule. He considered it authorized under the provisions of Section 945.21, Florida Statutes; Department of Corrections Rule 33-5.01, Florida Administrative Code; and Department of Corrections "Policy and Procedure Directive" Number 3.04.12, which was issued April 8, 1981. Rule 33-5.01 provides:
The Secretary shall authorize each Superintendent to adopt policies stating the conditions and circumstances under which visits may be conducted including:
the regular visiting hours of the insti- tution; the items which visitors may take in or out of an institution, and what items are contraband; what persons or groups may visit, and in what numbers; and the specific standards of conduct which shall prevail during such visits.
All visiting policies promulgated by the Superintendents shall be subject to approval by the Secretary.
Department of Corrections Policy and Procedure Directive 3.04.12 provides at Paragraph V.A. 1:
Visiting days shall normally be designated as Saturday and Sunday between the hours of
9:00 a.m. and 3:00 p.m. Where unusual circum- stances occur, additional days may be designated for visiting. Institutions are authorized to restrict visiting to one of these days; or
when facilities permit, visiting may be permitted more than one day.
The directive provides at Paragraph V.B.:
There is no limit on the number of individuals that may visit an inmate on any particular visiting day other than those restrictions imposed regarding limited space at each institution. Each institution is authorized to place a limitation
when physical facilities are restrictive. However, reasonableness should be exercised when possible
in regard to the number of visitors that would
be permitted. Those institutions restricting visits to either Saturday or Sunday, but not both, may permit special exception in the case of those individuals that have traveled a significant dis- tance, especially when such visits are on an infrequent basis.
This policy directive has not been promulgated as a rule. It is not published in the Florida Administrative Code, does not bear a numerical designation that accords with rules of the Department of State, and appears to have been adopted on authority of Department of Corrections Rules 33-4.02(), 33-3.06, and 33-5, Florida Administrative Code. None of these rules sets out visiting conditions with the specificity found in the policy and procedure directive.
Prior to the March 6, 1982 effective date of the Superintendent's memorandum, which is the basis for this proceeding, inmates at Polk Correctional Institution were allowed to receive visitors on both Saturday and Sunday. This prior policy was based upon memoranda that had been issued by the superintendent in the same manner as the February 18, 1982 memorandum.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.56, Florida Statutes. The Department of Corrections has contended that none of the petitioners have demonstrated they have standing to maintain this proceeding because they have not demonstrated that they had more visitors prior to the effective date of the February 18, 1982 memorandum than would be allowed under the memorandum. Such a restrictive view of standing requirements to maintain a rule challenge proceeding is not justified. See Florida Homebuilders Association v. Department of Labor and Employment Security, So.2d Case No. 60,211 (Fla. March 25, 1982). The memorandum applies to each of the petitioners. The memorandum substantially limits the number of visits that each of the petitioners is able to enjoy. But for the memorandum, each of the petitioners would be likely, on occasion, to have more visitors than allowed under the February 18, 1982 memorandum. Each of the petitioners is therefore substantially affected by the memorandum and has standing to maintain this proceeding.
The Department of Corrections contends that the February 18, 1982 memorandum is not a rule because it was issued by the superintendent of Polk Correctional Institution, and that Polk Correctional Institution is not an agency within the meaning of the Florida Administrative Procedure Act. Section 120.52(1), (d), Florida Statutes, defines "agency" to include:
Each other state officer and each state department, departmental unit described in
Section 20.04, commission, regional planning agency, board, district, and authority .
The definition is broad enough to encompass Polk Correctional Institution as a unit of the Department of Corrections. To the extent that Polk Correctional Institution is not such a departmental unit, however, the February 18, 1982 memorandum should nonetheless be construed as having been adopted by an "agency" because the superintendent's authority to adopt it has been expressly delegated to the superintendent by the agency head of the Department of Corrections.
Department of Corrections Rule 33-5.01, Florida Administrative Code.
The Department of Corrections contends that the February 18, 1982 memorandum does not constitute a rule because it applies only within the confines of Polk Correctional Institution. The Department contends that this is not general applicability. The contention is without merit. While the policy memorandum clearly does not have department-wide or state-wide applicability, it does apply to a broad class of persons: all inmates at Polk Correctional Institution, Furthermore, it applies to future occurrences and establishes new policies that will govern future occurrences rather than resolving an occurrence that occurred in the past. The issue of whether a given action constitutes an order or a rule is analogous to the determination of whether a given action constitutes a "judicial inquiry" or a legislative one, a distinction discussed by Justice Holmes in Prentiss v. Atlantic Coastline Company, 211 US 210, 226 (908):
A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is the purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.
The superintendent's memorandum applies to everyone subject to the Superintendent's power. It applies to future not past occurrences, and establishes a new policy to be followed in the future. Its applicability is thus general, and it constitutes a rule within the meaning of Section 120.52(14), Florida Statutes.
The courts have long and consistently held that where an agency implements a policy which constitutes a rule, but does not properly follow rule- making procedures, the policy constitutes an invalid exercise of delegated legislative authority. See eg. State Department of Administration v. Harvey,
356 So.2d. 323(1 DCA Fla. 1978); State Department of Administration v. Stevens,
344 So.2d. 290(1 DCA Fla.1977). The courts have expressed reluctance to declare improperly promulgated rules invalid in marginal cases; Department of Highway Safety and Motor Vehicles v. Florida Police Benevolent Association, 400 So.2d.1302, 1303(1 DCA Fla.1981); or in cases where the procedural irregularities constitute harmless error; Florida Texas Freight, Inc. v. Hawkins, 379 So.2d.944(Fla. 1979) The instant case is not a marginal one. Section 945.21(1)(i), Florida Statutes, specifically authorizes the Department of Corrections to adopt and promulgate regulations relating to visiting hours and privileges. The Department has sought to satisfy this invitation by
adopting a rule which authorizes each prison Superintendent to adopt "policies" stating the conditions and circumstances for visits. Department of Corrections Rule 33-5.01, Florida Administrative Code. The Department has more explicitly set guidelines for superintendents to follow through its Policy and Procedure Directive Number 3.04.12. This latter directive, however, was not promulgated as a rule. The superintendent's memorandum comports with the policies set out in the Department's Policy and Procedure Directive. Both the memorandum and the Policy and Procedure Directive constitute agency statements of general applicability that implement policy. They thus constitute rules within the meaning of the Administrative Procedure Act. Section 120.52(14), Florida Statutes. The Department has sought to satisfy its responsibility to promulgate its policies as rules by entitling them "policy and procedure directives" or by delegating responsibility to prison superintendents. The labeling and the delegation do not, however, change the facts that the policies are rules and that rule-making procedures and requirements were ignored.
It cannot be said that the Policy and Procedure Directive and the superintendent's memorandum constitute incipient policies of the Department of Corrections and of Polk Correctional Institution, which are exempt from rule- making requirements for the reasons expressed in McDonald v. Department of Banking and Finance, 346 So.2d 569 (1 DCA Fla. 1977). Neither the directive nor the memorandum constitute developing policies. The memorandum was adopted because the superintendent perceived an overcrowding circumstance, and decided to cure it by taking the action set out in the memorandum. This is not a developing policy, but rather is a forthright statement of the policy that the superintendent has concluded is most appropriate.
Had rule-making procedures been implemented by the Department in promulgating the policy and procedure directive or by the superintendent in promulgating his memorandum, the Petitioners and members of the Petitioners' families would have had an opportunity to give input, at least through written presentations, see Section 120.54(3), Florida Statutes. Other interested persons would have had an opportunity to evaluate the rule and to make input as well. Nothing herein is meant to criticize the policy choice made by the superintendent in his memorandum. It may be a very excellent and fully justifiable policy. It was made, however, without the notice and opportunity to be heard that is mandated for such policy decisions under the provisions of the Administrative Procedure Act. It therefore constitutes an invalid exercise of delegated legislative authority.
FINAL ORDER
Based upon the foregoing findings of fact and conclusions of law, it is, hereby,
The interoffice memorandum dated February 18, 1982, which was issued by the superintendent of Polk Correctional Institution, is hereby declared to constitute an invalid exercise of delegated legislative authority.
DONE AND ORDERED this 5th day of May, 1982, in Tallahassee, Florida.
G. STEVEN PFEIFFER Assistant Director
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 5th day of May, 1982.
COPIES FURNISHED:
Mr. Roy H. Sumner
Polk Correctional Institution Post Office Box 488
Polk City, Florida 33868
Mr. Michael Ray Baker
Polk Correctional Institution Post Office Box 488
Polk City, Florida 33868 Mr.
Ralph Garvin
Polk Correctional Institution Post Office Box 488
Polk City, Florida 33868
Michael J. Minerva, Esquire General Counsel
Department of Corrections 1311 Winewood Boulevard
Tallahassee, Florida 32301
Harry F. Chiles, Esquire Assistant Attorney General Civil Division
Department of Legal Affairs The Capitol
Tallahassee, Florida 32301
Carroll Webb, Executive Director Administrative Procedures
Committee
Room 120, Holland Building Tallahassee, Florida 32301
Ms. Liz Cloud Department of State
Administrative Code Bureau Room 1802, The Capitol Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| May 05, 1982 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| May 05, 1982 | DOAH Final Order | Challenged interoffice memorandum was invalid exercise of delegated legislative authority. |
