STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY MICHAEL PICCIRILLO )

)

Petitioner, )

)

vs. ) CASE NO. 83-3064RX

)

DEPARTMENT OF CORRECTIONS, )

STATE OF FLORIDA )

)

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 November 16, 1983, at Union Correctional Institution, Raiford, Florida.

APPEARANCES

For Petitioner: Gary M. Piccirillo, pro se

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

For Respondent: John J. Rimes, III, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

and

Robert M. Leeper, Esquire 1311 Winewood Boulevard

Tallahassee, Florida 32301

Petitioner, Gary M. Piccirillo, an inmate incarcerated at the time of final hearing in this cause at Union Correctional Institution, challenges Respondent's Rule 33-3.051, Florida Administrative Code, entitled Copying Services for Inmates, asserting that rule constitutes an invalid exercise of delegated legislative authority. Specifically, Petitioner contends that the rule ". . . disallows photocopying of unreported cases, statutes, and other legal reference material needed in order for Petitioner to present meaningful litigation. . . ," and that the rule further disallows ". . . photocopying of legal materials and documents to be forwarded to attorneys." Petitioner contends that the challenged rule is arbitrary and without a rational basis in fact and that it conflicts with the Federal Rules of Appellate Procedure and Federal Rules of Civil Procedure.

Final hearing in this cause was scheduled for November 16, 1983, by Amended Notice of Hearing dated November 4, 1983. At the final hearing Petitioner testified in his own behalf, and called Cecil Crews and Harold Hemming as his

witnesses. Petitioner offered Petitioner's Exhibits 1 and 2, which were received into evidence. Respondent called no witnesses and offered no exhibits for inclusion in the record.

Respondent has 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 involved in this cause, or as not having been supported by evidence of record. Petitioner has made no posthearing filings.

FINDINGS OF FACT

1. At all times material hereto Petitioner was an inmate incarcerated at Union Correctional Institution within the custody and control of the State of Florida, Department of Corrections. Respondent stipulated at final hearing that Petitioner has "standing" to maintain the rule challenge proceeding. The parties also stipulated that the rule under challenge in this proceeding is a rule adopted by Respondent in accordance with the settlement reached in a previous administrative rule challenge proceeding in which Petitioner was a party. The parties further stipulated that ". . . inmates within the Respondent's care enjoy meaningful access to the courts."

   
   

2. There are presently approximately 2,500 inmates incarcerated at Union Correctional Institution. There is one Xerox machine located in the law library at Union Correctional Institution, and the librarian has two inmate clerks assigned to assist in the operation of the library. There is insufficient money in the library budget to fund either additional copying machines or additional personnel to assist in copying materials other than those authorized under Respondent's rule.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

4. Section 945.04, Florida Statutes, provides that Respondent " . . . 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."

   
   

5. Section 945.21(1)(n), Florida Statutes, empowers Respondent to adopt ".

   . . [s]uch . . . regulations as in the opinion of the department may be necessary for the efficient operation and management of the correctional system.

   
   

6. Where, as here, the legislature has delegated broad discretionary rulemaking 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 v. Wynne, 306 So.2d 200, 202 (Fla. 1st DCA 1974); General Telephone Company of Florida v. Florida Public Service Commission, 6 FALR 1016, 1019 ( Fla. 1934) . In Agrico Chemical Company v.

   State, 365 So.2d 759, 763 (Fla. 1st DCA 1979), it was held that:

   
   

   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 despotic. Administrative discretion must be reasoned and based upon competent substantial evidence.

   Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion.

   
   

7. The rule which Petitioner has challenged in this proceeding is Rule 33- 3.051(2), Florida Administrative Code. Rule 33-3.051(1) mandates that all of Respondent's facilities ". . . shall provide photographic copying services to inmates submitting legal documents and accompanying evidentiary material to courts and administrative bodies." Subsection (2) of that rule, which is challenged here, provides as follows:

   
   

   Documents will be copied only if they are necessary to initiate a legal or administrative action or if they must be filed or served in a pending action.

   The number of copies shall be the number required to be filed and served according to the rules of the court or administrative body: one additional copy shall be made for the inmate to keep if the original is filed or served. Cases, statutes, and other reference materials

   are not evidentiary material and will not be copied to accompany legal documents. (Emphasis added.)

   
   

8. Petitioner has asserted that the challenged rule is arbitrary and capricious and that it has the effect of denying and impairing meaningful access to legal counsel. Each of these contentions is without merit. Because of budgetary constraints Respondent has chosen to limit the copying of legal materials to those ". . . necessary to initiate a legal or administrative action

   . . .", or those that ". . . must be filed or served in a pending action. "

   Respondent has also made copying services available to inmates to copy "evidentiary materials" for filing before courts and administrative bodies. The effect of the rule is to disallow copying services for cases, statutes, and other reference material which are readily available to courts, administrative bodies, and legal counsel. The rule is, therefore, not arbitrary or capricious, nor does it deny inmates access to legal counsel.

   
   

9. Finally, Petitioner has contended that the challenged rule conflicts with the Federal Rules of Appellate Procedure and the Federal Rules of Civil Procedure, although no such rules were introduced into evidence, and no argument made to demonstrate how the challenged rule conflicts with federal rules on the same subject. However, Rule 33-3.051(2) , on its face, indicates that documents "necessary" to initiate legal or administrative proceedings, or documents which "must be filed or served" in such actions may be copied. Thus, if the rules of the appropriate legal or administrative body require the filing of copies of cases, statutes, or other reference material, these documents may be appropriately copied under the challenged rule.

Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that Petitioner has failed to establish the invalidity of Rule 33- 3.051(2) , Florida Administrative Code, and the relief sought by Petitioner is hereby DENIED, and the petition dismissed.

DONE AND ENTERED this 24th of April, 1984, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

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 24th day of April, 1984.

COPIES FURNISHED:

Gary M. Piccirillo Lake City Community

Correctional Center Post Office Box 777

Lake City, Florida 32055

John J. Rimes, III, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

Robert M. Leeper, Esquire 1311 Winewood Boulevard

Tallahassee, Florida 32301

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

Tallahassee, Florida 32301

Louie L. Wainwright, Secretary Department of Corrections

1311 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-003064RX

Orders for Case No: 83-003064RX