STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY M. PICCIRILLO and )

WINSTON LLOYD )

)

Petitioner, )

)

vs. ) CASE NO. 83-3126RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

This rule-challenge was heard on November 21, 1953, by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings

APPEARANCES

For Petitioner: Gary M. Piccirillo, pro se and

as Qualified Representative

Lake City Community Corrections Center Post Office Box 777

Lake City, Florida 32055

For Respondent: Randall A. Holland

Assistant Attorney General Room 1601 The Capitol Tallahassee, Florida 32301

ISSUE

Whether Union Correctional Institution Operating Procedure No. 81-6, concerning inmate canteen coupon books, is an "unpromulgated rule" within the meaning of Section 120.52(15), Florida Statutes, rendering it an invalid exercise of delegated legislative authority.

BACKGROUND

On October 6, 1982, Gary M. Piccirillo and Winston Lloyd ("Petitioners"), together with Douglas L. Adams and Joe Lewis Holland (both subsequently dropped for lack of standing) filed with the Division of Administrative Hearings a petition to determine the invalidity of several Union Correctional Institution directives or policies relating to the mandatory conversion of U.S. currency into coupons for use at the prison canteen. This case was originally assigned to Hearing Officer William E. Williams, then reassigned to the undersigned and set for November 21, 1983, at Union Correctional Institution, Raiford, Florida.

At hearing, petitioners testified in their own behalf and Petitioners, Exhibit No. 1 was received into evidence. Respondent ("the Department") presented no witnesses and offered no exhibits.

Proposed findings of fact and conclusions of law were filed by February 6, 1984. No transcript of the hearing has been filed.

Based upon the evidence presented, the following facts are determined:

FINDINGS OF FACT

1. Petitioners are prisoners Incarcerated at Union Correctional Institution, a prison operated by the Department the agency responsible for the state prison system. The parties stipulated that petitioners are Substantially affected by the challenged Union Correctional Institution Operating Procedure

   
   

   No. 81-6.

   
   

2. Petitioners, who initially challenged several operating procedures and directives, have confined their attack to Union Correctional Institution Operating Procedure No. 81-6. This Operating Procedure, issued February 16, 1962, and revised October 2, 1981, Is titled "Inmate Canteen Coupon Books" and issued over the signature of the Superintendent of Union Correctional Institution. As authority for its issuance, two policy and procedural directives are referenced, neither of which is in evidence. The stated purpose of this

   Operating Procedure is:

   
   

   1. To establish the approved medium of exchange for inmates assigned to Union Correctional Institution;

   2. To establish procedures for obtaining coupon books for use in the Canteen

      System;

   3. To place responsibility for distributing and accounting for Canteen coupons;

   4. To place limitations upon inmates use of coupon books;

   5. To establish procedures for redemption of coupon books; and

   6. To identify disciplinary action relative to misuse of coupon books.

      
      

      (Petitioners' Exhibit No. 1)

      
      

      Paragraph 81-6.3A expresses the main policy of the Operating Procedure:

      
      

      A. Canteen coupon books shall be the approved medium of exchange for

      inmates at Union Correctional Institution. Currency, coins or other negotiable instruments in the possession of an

      inmate are contraband. (Petitioners' Exhibit No. 1)

3. This Operating Procedure announces and purports to set Department policy for Union Correctional Institution. Canteen coupon books are declared to be the only approved medium of exchange for inmates. Currency, coins or other

   negotiable instruments in the possession of inmates are declared contraband.

   All currency, coins or negotiable instruments are removed from new inmates and credited to their individual trust accounts. Thereafter, inmates may draw up to

   $20.00 per week from their trust accounts, but only in the form of coupon books. Coupons may be redeemed in the canteen system but loose coupons will not be accepted. Inmates may not possess more than $25.00 worth of coupons--any excess is declared contraband. This Operating procedure also includes details regarding coupon books, coupon distribution, and coupon redemption. Finally, inmates are warned that failure to comply with the Operating Procedure may constitute a violation of institutional rules for which, presumably, sanctions may be imposed. (Petitioners' Exhibit No. 1)

   
   

4. This written Operating Procedure applies to all inmates at Union Correctional Institution. It applies prospectively, and dictates the medium of exchange for inmates at the institution. It purports, in and of itself, to create rights and affect others; it is virtually self-executing, no exceptions or discretion in implementation is allowed. By its tone and language, it speaks with the force of a rule of law.

   
   

5. The Department concedes that this operating procedure has never been adopted as a rule in accordance with the rulemaking procedures of Section 120.54, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.56, Fla. Stat. (1983).

   
   

7. Petitioners have standing to institute this rule challenge proceeding. See, 120.56, Fla.Stat. (1983).

8. Section 120.52(15), Florida Statutes, defines a "rule" as: (15)...each agency statement of

   general applicability that implements,

   interprets, or prescribes law or policy or describes the organization, procedure, or practice requiremens of an agency

   and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. . . .

   
   

   Agency statements which act as rules but are not formally adopted as such under Section 120.54, Florida Statutes, are illicit rules and invalid. State Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). If the statement applies generally, with the force of a rule of law; if it purports in and of itself to create rights and adversely affect others; if it allows subordinates no discretion and implementation; if it is prospectively applied and is virtually self-executing; it is a rule and void unless legally adopted.

   Stevens, supra, at 296; McDonald v. Department of Banking and Finance, 346 So.2d

   569 (Fla. 1st DCA 1977); Department of Commerce v. Matthews Corporation, 358 So.2d 256 (Fla. 1st DCA 1978); Florida State University v. Dann, 400 So.2d 1304 (Fla. 1st DCA 1981).

   
   

9. The challenged Operating procedure--for the most part--simply restates requirements already contained in Department Rule 33-3.06, Florida

   Administrative Code. This rule sets a limit on weekly draws, and on the maximum amount of money or coupons an inmate may possess. It requires that coupons remain in coupon books until exchanged, and requires new prisoners, on arrival, to surrender their money for deposit to their individual accounts. To the extent the challenged Operating Procedure restates requirements already in a Department rule, it is not--by statutory definition--a rule. See, $120.52(15), Fla. Stat. (1983)

   
   

10. However, Department Rule 33-3.06 does not establish the approved medium of exchange for inmates at Union Correctional Institution. The rule is neutral and makes no choice; it allows either money or coupons. It is Operating Procedure No. 81-6 which decides the medium of exchange for inmates at Union Correctional Institution. The first listed purpose is "to establish the approved medium of exchange for inmates at Union Correctional Institution;" (e.s.) the first listed policy is that "coupon books shall be the approved medium of exchange for inmates at Union Correctional Institution."

    
    

    (Petitioners' Exhibit No. 1)

    
    

11. It follows then that paragraph 81-6.3A (establishing coupons as a means of exchange for Union Correctional Institution) of Operating Procedure No. 81-6 is a "rule," as statutorily defined and judicially construed. It applies prospectively, to a broad class of persons--all inmates within the confines of Union Correctional Institution. It expresses a policy choice (the prison's approved medium of exchange), creates rights and affects others, requires compliance, is virtually self-executing, and speaks with the force of a rule of law. Yet, it has not been adopted as a "rule" in accordance with rule-making procedures, which give affected persons notice and opportunity to comment. Accordingly, paragraph 81-6.3A, that portion of the Operating Procedure which establishes the approved medium of exchange for inmates at Union Correctional Institution, constitutes an invalid exercise of delegated legislative authority. See, Department of Corrections v. Sumner, So.2d (Fla. 1st DCA 1984), (Case No. AM-256, Opinion filed March 22, 1984)

    
    

12. The parties' proposed findings of fact and conclusion of law have been closely reviewed. To the extent they are not incorporated in this order, they are rejected as unsupported by the evidence, unnecessary, or inconsistent with controlling principles of law.

Based on the foregoing, it is ORDERED:

That the Petition to Determine the Invalidity of a Rule is granted, insofar as paragraph 81-6.3A of Union Correctional Institution Operating Procedure No.

81-6, is declared an invalid exercise of delegated legislative authority. In all other respects, the petition is denied.

DONE and ORDERED this 6th day of April, 1984, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1984.

COPIES FURNISHED:

Gary M. Piccirillo Louie L. Wainwright, Lake City Community Corrections Secretary

Center Department of

Post Office Box 777 Corrections

Lake City, Florida 32055 1311 Winewood Blvd.

Tallahassee, FL 32301

Randall A. Holland Carroll Webb, Executive

Assistant Attorney General Director

Room 1601 The Capitol Administrative Procedures

Tallahassee, Florida 32301 Committee

Room 120, Holland Bldg. Tallahassee, FL 32301

Winston Lloyd, Douglas L. Adams, and Joe Lewis Holland

Union Correctional Institution Liz Cloud, Chief Post Office Box 221 Department of State

Raiford, Florida 32083 Bureau of Administrative Code

Room 1802, The Capitol Tallahassee, FL 32301

Docket for Case No: 83-003126RX

Orders for Case No: 83-003126RX