STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS L. ADAMS, HAROLD E. ) HUNT, JOHN TATE, and GARY M. ) PICCIRILLO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1653RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on August 12, 1983, at Union Correctional Institution, Raiford, Florida.

APPEARANCES

For Petitioners: Douglas L. Adams, John Tate,

and Gary M. Piccirillo, pro se Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Harold E. Hunt - No Appearance For Respondent: William H. Ravenell, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Petitioners, who at the time of formal hearing in this cause were inmates incarcerated at Union Correctional Institution, challenge the validity of Rules 33-3.081(4), (5) and (9)(a) and (b), Florida Administrative Code, as an invalid exercise of delegated legislative authority, pursuant to Section 120.56, Florida Statutes. In addition, Petitioners challenge as unpromulgated, and therefore invalid, Rules, Respondent's Policy and Procedure Directives No. 4.07.11 and No. 4.07.20.

Final hearing in this cause was scheduled for August 12, 1983, by Amended Notice of Hearing dated July 15, 1983. At the final hearing, Petitioners Tate, Piccirillo and Adams testified in their own behalf and called Milton Hicks, Gregory Arline, Steven Coritzer and Michael Nelson as their witnesses.

Petitioners offered Petitioner's Exhibits 1 through 4, which were received into evidence. Respondent called Ron Jones as its only witness, and offered Respondent's Exhibit 1 which was received into evidence.

In the petition filed herein, Petitioners challenge the validity of Respondent's promulgated rules as hereinabove described on the grounds that they are vague and fail to set forth any limitation on the duration of administrative confinement. Further, Petitioners contend that the hearing requirement contained in Rule 33-3.081, Florida Administrative Code, failed to afford them due process of law.

With respect to the challenged policy and procedure directive, Petitioners contend only that they have the force and effect of a "rule", within the meaning of Chapter 120, Florida Statutes, and that they have not been as promulgated as required by law.

Both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. Respondent has stipulated that Petitioners have "standing" to challenge the rules and the policy and procedure directives which are the subject of this proceeding.

   
   

2. At the time the petition in this cause was filed, Petitioners challenged the validity of Rule 33-3.081, Florida Administrative Code, as it existed as of its latest revision on May 22, 1981. However, subsequent to the filing of the petition in this cause, and prior to the date of final hearing, Respondent amended Rule 33-3.081, and filed these amendments with the office of the Secretary of State on June 23, 1983. At final hearing in this cause, the parties stipulated to the Petitioners maintaining a challenge to newly amended Rule 33-3.081(4), (5), and (9)(a) and (d), Florida Administrative Code.

   
   

3. On or about November 30, 1979, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.11, which was subsequently revised on June 14, 1981. This directive contains 13 separately titled sections. The first section, entitled Authority, simply lists the authority, both statutory and rule-based, for issuance of the directive. Section three contains definitions which, with a single exception not relevant here, are identical to those contained in Rule 33-3.081(2). Sections four through thirteen likewise recapitulate provisions contained in Respondent's rules or in relevant statutes. The following is a list of titles of sections four through thirteen, each of which is followed with a parenthetical reference of the rule provision substantially incorporated therein: Staff Selection (33- 3.081(10)); Basis for Placement (33-3.081(1)); Placement (33-3.081(4)); Protection Cases (33-3.082); Visiting (33-3.081 (5)); Gain Time (33-11.11 and Section 944.28, Florida Statutes); Review of Administrative Confinement (33- 3.081(6)); Self-Improvement Programs (33-081(7)); Facilities (33-3.081(8));

   General Provisions (33-3.081(9)(a)-(k)). Sections 13(l) and (m) of the policy and procedure directive essentially reiterate the provisions of Rule 33-3.081(6) and 33-3.081 (11) , respectively.

   
   

4. On or about June 14, 1981, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.20, entitled "Discipline." This directive which purportedly issued pursuant to the authority contained in Sections 944.09, 944.14, 944.15, 944.28 and 945.21, Florida

   Statutes, and Chapter 33-3.08, Florida Administrative Code. In fact, each of the 20 separately numbered portions of this directive substantially recapitulate requirements already contained in Rule 33-3.08, Florida Administrative Code.

   The single exception is Section 7 of the directive, entitled Administrative Confinement, which finds its support in Rule 33-3.081.

   
   

5. Neither Policy and Procedure Directive 4.07.11 nor Policy and Procedure Directive 4.07.20 purport to create or otherwise adversely affect rights of inmates in any manner which differs from corresponding provisions of Rules 33- 3.081, 33-3.08 or the provisions of the Florida Statutes cited as authority for issuance of the policy and procedure directive. Rather, the rights of inmates are specifically determinable pursuant to those cited statutory provisions and the requirements of Rules 33-3.081 and 33-3.08, and the challenged policy and procedure directives simply recapitulate the requirements contained therein.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to this proceeding. Section 120.56, Florida Statutes.

   
   

7. Section 944.09, Florida Statutes, provides, in pertinent part, as follows:

   
   

   1. All persons committed to the department shall be supervised by it.

   2. The department shall publish rules and regulations and make a copy available for review by each employee and inmate. The rules and regulations shall include or relate to:

      1. The rights of inmates.

      2. The rules of conduct to

         be observed by inmates in the categories of violations according to degrees or levels of severity as well as the degrees of punishment applicable and appropriate to such violations.

      3. Disciplinary procedures and punishments.

   3. Regulations of the department shall be adopted and filed with the Depart- ment of State as provided in chapter 120.

      (5) The department shall cause a record to be kept of violations of rules of conduct, the rule or rules violated, the nature of the punishment administered, the authority ordering such punishment, the duration of time during which the offender was subjected to punishment, and the condition of the prisoner's health.

      
      

8. Section 945.21, Florida Statutes, provides, in part, as follows:

   
   

   1. The department shall promulgate regulations governing the administration of the correctional system and the operation of

      the department. In addition to specific subjects otherwise provided for herein, the regulations of the department may relate to:

      1. Conduct to be observed by

         prisoners.

         
         

      2. Punishment of prisoners.

         (i) Visiting hours and privileges.

         1. Such other regulations as

            in the opinion of the department may be necessary for the efficient operation and management of the correctional system.

            
            

9. Section 944.34, Florida Statutes, provides, as follows:

   
   

   All necessary means shall be used by the superintendents, and such punishments as may be needful shall be adopted to maintain order, enforce obedience and discipline, suppress insurrection, prevent escapes, and compel performance of labor; but no cruel or inhuman punishment shall be inflicted upon any pri- soner, and no punishment injurious to the mind or the body of the prisoner shall be permitted, nor shall any prisoner be compelled to labor without sufficient food.

   
   

10. Section 945.04, Florida Statutes, provides that the Department of Corrections:

    
    

    . . . shall be responsible for the inmates and for the operation of, and shall have supervisory and protective care, custody, and control of, all buildings, grounds, property of, and matters connected with, the correctional system.

    
    

11. Pursuant to the aforementioned statutory authority, the Department of Corrections has adopted Rule 33-3.081, Florida Administrative Code, which, insofar as here pertinent, provides as follows:

    
    

    (4)(a) An inmate may be placed in administrative confinement by the Senior Correctional Officer after an informal hearing. The reason for such 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 of Administrative Confinement, Form DC4-813 (a), including the reasons for the action and the summary of the inmate's comments or objections. The inmate may also sub- mit a written statement.

    1. The action of the Senior Correc- tional Officer shall be reviewed within three

       working days by the Classification Team. The Team shall review the Report of Admin istrative Confinement and any written statement submitted by the inmate. The Team may also request additional facts from

       other sources if it believes such additional facts are necessary for its decision. The Team shall then determine, subject to approval by the Superintendent, whether administrative confinement of the inmate should continue. The Team action shall be documented on the Report of Administrative Confinement, Form DC4-813(a). The inmate shall be given a written statement of the Team action and the reason for it.

       
       

    2. In case of emergency when a serious threat to institutional security and order exists, the hearing before the Senior Cor- rectional Officer may be delayed for up to

       48 hours.

       
       

    3. For the purposes of this rule, Senior Correctional Officer means the shift supervisor.

    
    

    (5) Visiting. All visits for inmates in administrative confinement must be approved in advance by the Superintendent or his designee. Such visiting should be permitted when it is in the best interest of all concerned. Requests for administra- tive visiting should normally be in writing to the Superintendent. Those inmates who are a clear threat to the security of the institution may be denied visiting privi- leges. Attorney-client visits shall not

    be restricted except on clear evidence that the visit would be a threat to security or order.

    
    

    1. Conditions and Privileges.

       
       

       1. Comfort Items--Inmates in administrative confinement shall be per- mitted personal hygiene items and other medically needed or prescribed items such as eyeglasses, hearing aids, etc., except when security requirements clearly dic- tate otherwise. In the event certain items are removed from inmates in admin- istrative confinement, the Senior Cor- rectional Officer will be notified and must approve the action taken, or the item(s) must be returned to the inmate. Action taken will be recorded on the

    Daily Record of Confinement, Form DC4-815,

    which must be reviewed by the Correctional Officer Chief. Property receipts will be given for any personal property removed.

    The following comfort items will be pro- vided as a minimum: toothbrush, tooth- paste, bar of soap, towel (paper towels) sanitary napkins for women, and toilet tissue.

    
    

    (d) Legal access--Legal materials shall be as accessible to inmates in admin- istrative confinement as to inmates in general population as long as security con- cerns permit. An inmate in confinement may be required to conduct legal business by correspondence rather than a personal visit to the law library if security requirements prevent a personal visit. However, all steps will be taken to ensure the inmate is not denied needed access while in confine ment. Although the inmate may not be rep- resented by an attorney at any administra- tive hearing, access will be granted for legal visits at any reasonable time during normal business hours to the inmate's attorney or aide to that attorney. Inmates will be provided appropriate paper and writing utensils in order to prepare legal papers. Typewriters or typing services are not considered required items and will not be permitted in confinement cells. . . .

    
    

12. Where, as here, the legislature has delegated broad discretionary rule-making authority to an agency, ". . .the validity of regulations promulgated thereunder will be sustained so long as they are reasonably related

    to the purposes of the enabling legislation and are not arbitrary or capricious.

    . ." Florida Beverage Corporation vs. Wynne, 306 So.2d 200, 202 (Fla. 1st DCA 1974); General Telephone Company of Florida vs. Florida Public Service Commission, 6 FALR 1016, 1019 (Fla. 1904) . Further, where an agency has responded to rule-making incentives and has adopted as rules its policy statements of general applicability, ". . .[p]ermissible interpretations of a statute must and will be sustained, though other interpretations are possible and may even seem preferable according to. . . ." Department of Health and Rehabilitative Services vs. Framat Realty, Inc., 407 So.2d 238, 242 (Fla. 1st DCA 1981). Petitioners in this cause allege that the challenged rules are invalid because they fail to contain any limitation on the time an inmate may be placed in administrative confinement, are "vague", and that the hearing requirement contained in the challenged rules does not ". . .comport with the requirement of due process of the law. . ." In the first instance, administrative confinement is, by its very nature, not susceptible at the outset to a determination of duration, because it relates to prevention of a security risk by allowing an inmate to remain in general population. Clearly, the rules envision a return of the inmate to general population as soon as a determination that any danger of a security risk has passed. Accordingly, Petitioners' contentions in this regard are without merit. Additionally, Petitioner has failed to establish by any evidence that the rules challenged in this proceeding are so "vague" as to require determination that they are invalid. Finally,

    Petitioners' challenge to the hearing requirement portion of Rule 33-3.081 as depriving them of due process of law constitutes a constitutional challenge to an existing rule over which this Hearing Officer has no jurisdiction. See, Department of Environmental Regulation vs. Leon County, 344 So.2d 297, 298 (Fla. 1st DCA 1977)

    
    

13. Section 120.52(15), Florida Statutes, defines the term "rules" to mean:

. . .each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirement of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by existing rule.

Agency statements which meet the definition of a "rule" within the meaning of Section 120.52(15), Florida Statutes, but have not been adopted according to the rule-making requirements of Section 120.54, Florida Statutes, are invalid.

Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). Agency statements which purport in and of themselves to create rights and adversely affect others, and which are applied prospectively with the force and effect of law, allowing little or no discretion in their implementation, are rules that are void unless formally adopted. Florida State University v. Dann,

400 So.2d 1304 (Fla. 1st DCA 1981). However, where agency statements that have not been adopted as rules simply track the language of either a statute or a validly adopted rule, it is unnecessary that they be adopted pursuant to the requirements of Section 120.54, Florida Statutes. See, DeDakis v. Florida Real Estate Commission, 388 So.2d 22 (Fla. 1st DCA 1980). In such cases, as with the policy and procedure directives here attacked as unpromulgated rules, it is not the statement itself, but rather the statute and the validly promulgated rules which create or otherwise affect the rights of persons subject to their application. The policy and procedure directives involved in this proceeding do no more than reiterate the requirements of existing statutes and validly promulgated rules and were, therefore, not required to be formally adopted.

Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law, the relief sought by Petitioners should be, and the same is hereby DENIED, and the petition dismissed.

DONE AND ENTERED this 18th day of April, 1984, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1984.

COPIES FURNISHED:

Douglas L. Adams

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Harold E. Hunt

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

John Tate

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

William H. Ravenell, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

Louie L. Wainwright, Secretary Department of Corrections

1311 Winewood Boulevard

Tallahassee, Florida 32301

Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Capitol, Room 1802 Tallahassee, Florida 32301

Gary M. Piccirillo Lake City Community

Correctional Center Post Office Box 777

Lake City, Florida 32055

Carroll Webb, Executive Director Joint Administrative procedures

Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 83-001653RX

Orders for Case No: 83-001653RX