STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY M. PICCIRILLO and )

JOHN M. RUSSELL, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3103RX

)

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 Petitioners: Gary M. Piccirillo and

John M. Russell, 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, Suite LL04 Tallahassee, Florida 32301

Petitioners in this cause, who are inmates incarcerated at Union Correctional Institution, challenge the validity of Respondent's Rule 33-3.045, Florida Administrative Code. Petitioners assert as grounds for invalidity of the challenged rule procedural irregularities in the rule adoption process relating to notice and insufficiencies in the economic impact statement, as well as asserting that the challenged rule is arbitrary and capricious and vague.

At the final hearing Petitioners each testified in his own behalf, and offered Petitioners' Exhibits 1 through 6, which were received into evidence. Respondent called Richard Kirkland as its only witness, and offered Respondent's Exhibit 1, which was received into evidence.

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 contained 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 under the custody and control of the Department of Corrections. Respondent stipulated at final hearing that Petitioners have "standing" to maintain this rule challenge proceeding.

   
   

2. During 1982 Respondent amended its Rule 33-3.045, Florida Administrative Code, entitled Package Permits. The final version of the amended rule was filed with the office of the Secretary of State on December 23, 1982, and became effective January 12, 1983. The text of the proposed rule was published in the October 22, 1982, issue of the Florida Administrative Weekly. Subsequent thereto, changes were made in the text of the proposed rule which had the effect of deleting from the list of items which inmates could receive in Christmas packages the following: apples, candies, chewing gum, cookies, and nuts. No person affected by the proposed rule requested a public hearing pursuant to Section 120.54(3) Florida Statutes. Respondent filed with the office of the Secretary of State a Statement of Changes and a Notice of Changes indicating the above-referenced deletions apparently at the time the rule was filed for adoption.

   
   

3. In addition, Respondent filed with the proposed rule an economic impact statement which estimated that there would be no cost or economic benefit to persons affected by the rule as a result of the proposed amendments. Although the record in this cause establishes, and common sense confirms, that some cost saving might result to persons wishing to send the deleted items to inmates, there is no evidence of record in this cause to establish how Respondent's failure to take this factor into account affected the fairness of the rule adoption proceeding.

   
   

4. At the time of final hearing in this cause there were approximately 2,500 inmates incarcerated at Union Correctional Institution. Each of these inmates is entitled to two Christmas package permits during the months of November and December. As a result as many as 5,000 Christmas packages could be received by the institution during that time period. Respondent's experience with Christmas packages has shown that apples, candies, chewing gum, cookies, fruit cakes, and nuts lend themselves to the introduction of contraband into correctional facilities. Because of the volume and character of Christmas packages, Respondent experienced both staffing and liability problems, particularly in the area of food stuffs. Respondent found that it was particularly difficult to examine food stuffs for contraband because it often would require chemical analysis to determine whether contraband items, such as drugs or alcohol, were baked or otherwise placed into the food stuff themselves. In addition, because of the volume of packages received Respondent often had to transfer employees from other areas of operation into the mailroom in order to process the packages, thus creating additional problems because employees had to be taken from their assigned tasks. Further, Respondent received notification from the Division of Risk Management indicating a precipitous rise in claims for damages from inmates whose food stuffs had been necessarily damaged in checking for contraband items. Finally, Respondent determined that most, if not all, of the items deleted from the Christmas package permit list were available to inmates through institution canteens.

   CONCLUSIONS OF LAW

   
   

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

   
   

6. 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 and relate to:

      (a) The rights of inmates.

      (f) Mail to and from the state correctional system.

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

      
      

7. Section 945.21(1)(j), Florida Statutes, authorizes the Department of Corrections to promulgate regulations governing mail to and from inmates.

8. Section 944.47, Florida Statutes, provides, in part, as follows: (1)(a) Except through regular channels as

   authorized by the officer in charge of the

   correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send therefrom, any of the following articles which are hereby declared to be contraband for purposes of this section, to wit:

   1. Any written or recorded communication or any currency or coin given or transmitted, or intended to be given or transmitted, to any inmate of any state correctional institution.

   2. Any article of food or clothing given or transmitted, or intended to be given or transmitted, to any inmate of any state correctional institution.

   3. Any intoxicating beverage or beverage which causes or may cause an intoxicating effect.

   4. Any narcotic, hypnotic, or excitative drug or any drug of whatever kind or nature. . .

   
   

9. Section 120.54(1)(b), Florida Statutes, requires agencies to publish notice in the Florida Administrative Weekly, of its intended action in the rule promulgation process. Section 120.54(3), Florida Statutes, allows an agency to schedule a public hearing in its discretion, or requires the agency to hold such a public hearing if one is requested by an affected person prior to adopting a proposed rule. Section 120.54(11)(a), Florida Statutes, provides, in pertinent part, as follows:

   . . .After the final public hearing on the proposed rule, or after the time for requesting a hearing has expired, the adopting agency shall file any changes in the proposed rule and the reasons therefor with the committee or advise the committee that there are no changes. In addition, when any change is made in a proposed rule other than a technical change, the adopting agency shall provide a detailed statement of such change by certified mail where actual delivery to any person who requests it in writing at the public hearing. The agency shall file the change with the committee, and provide the statement of change to persons requesting it, at least 7 seven days prior to filing the rule for adoption. . .

10. Section 120.54(2)(a), Florida Statutes, provides as follows: Each agency, prior to the adoption, amendment,

    or appeal of any rule, shall provide information on its proposed action by preparing a detailed economic statement. The economic impact statement shall include:

    1. An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork;

    2. An estimate of the cost or the economic benefit to all persons directly affected by the proposed action;

    3. An estimate of the impact of the proposed action on competition in the open market for employment, if applicable; and

    4. A detailed statement of the data and method used in making each of the above estimates.

    
    

11. 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 FAIR 1016, 1019 (Fla. 1984). As indicated by the court in Agrico Chemical Company v. State, 365 So.2d 759, 762-763 (Fla. 1st DCA 1978), in rule challenge proceedings such as this:

. . . the hearing officer must look to the legislative authority for the rule and determine whether or not the

. . . rule is encompassed within that grant. The burden is upon one who attacks the . . . rule to show that

the agency . . . [has] exceed[ed] its authority, that the requirements of the

rule are not reasonably related to the purpose of the enabling legislation

or that the . . . rule or the require- ments 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.fact or logic,

or despotic. Administrative discretion must be reasoned and based upon compe- tent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion.

The requirement that a challenger has

the burden of demonstrating agency action to be arbitrary or capricious or an abuse of administrative discretion is a strin- gent one indeed . . . The degree of

such required proof is by a preponderance of the evidence. . . .

It is concluded, as a matter of law, that Petitioners have failed to establish, in accordance with the standards of the Agrico case, that the rule challenged in this proceeding is either arbitrary or capricious. It is further concluded that petitioners have also failed to establish by a preponderance of the evidence any violation of the notice requirements of Section 120.54, Florida Statutes, in the rule promulgation process. Finally, it is also determined, as a matter of law, that petitioners have failed to demonstrate that they have experienced or will experience any economic impact as a result of the proposed rule, or that any deficiencies in the economic impact statement have impaired the fairness of this proceeding. School Board of Broward County v. Gramith, 375 So.2d 340 (Fla. 1st DCA 1979); plantation Residents Association v. School Board of Broward County, 424 So.2d 879 (Fla. 1st DCA 1983)

Accordingly, based upon the foregoing findings of fact and conclusions of law, it is

ORDERED:

That the relief sought by Petitioners should be, and the same is hereby, denied, and the Petition dismissed.

DONE AND ENTERED this 26th 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 26th day of April, 1984.

COPIES FURNISHED:

Gary N. Piccirillo Louis L. Wainwright, Secretary

Lake City Community Department of Corrections Correctional Center 1311 Winewood Boulevard

Post Office Box 777 Tallahassee, Florida 32301 Lake City, Florida 32055

Liz Cloud, Chief

John M. Russell Bureau of Administrative Union Correctional Institution Department of State Post Office Box 221 The Capitol, Suite 1802

Raiford, Florida 32083 Tallahassee, Florida 32301

John J Rimes, III, Esquire Carroll Webb, Executive Director Assistant Attorney General Joint Administrative Procedures Department of Legal Affairs Committee

The Capitol, LL04 120 Holland Building Tallahassee, Florida 32301 Tallahassee, Florida 32301

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

Tallahassee, Florida 32301

Docket for Case No: 83-003103RX

Orders for Case No: 83-003103RX