STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS L. ADAMS, JOE LEWIS ) HOLLAND, CURTIS HEAD and )

MELVIN DAVIS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3148RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

Pursuant to notice, a final hearing was held in this rule-challenge proceeding on November 15, 1983, at the Baker Correctional Institution, Olustee, Florida.

APPEARANCES

For Petitioners: Douglas L. Adams, Joe Lewis Holland,

Curtis Head and Melvin Davis, Pro se Baker Correctional Institution

Post Office Box 500 Olustee, Florida 32072

For Respondent: Robert A. Leeper

Assistant General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301 and

Randall Holland

Assistant Attorney General Administrative Law

1601 The Capitol

Tallahassee, Florida 32301 ISSUE

Whether various Baker Correctional Institution operating procedures, both written and unwritten, relating to the requirement that all inmates be clean- shaven are invalid exercises of delegated legislative authority.

BACKGROUND

On October 10, 1983, petitioners Douglas L. Adams, Joe Lewis Holland, Curtis Head and Melvin Davis ("petitioners") filed their Petition for Administrative Determination with the Division of Administrative Hearings charging that various written and unwritten Baker Correctional Institution

operating procedures relating to the clean-shaven requirement are invalid exercises of delegated legislative authority. Respondent Department of Corrections ("Department") is responsible for the operation and maintenance of Baker Correctional Institution.

The case was assigned to the undersigned Hearing Officer on October 19, 1983, and set to be heard on November 15, 1983.

At final hearing, the parties conferred, then announced a stipulation which--when implemented--would dispose of all issues in this case. The stipulation was accepted, and the hearing was adjourned.

Pursuant to this stipulation--although exceeding the agreed-upon time frame--the Department filed a Notice of Agency Withdrawal of Challenged Documents. It is those documents which petitioners attack in this proceeding.

On December 2, 1983, petitioner Douglas L. Adams filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. By their petition, as further defined at hearing, petitioners attack the provisions of Baker Correctional Institution Operating Procedure No. 78-G-13 relating to the requirement that all inmates be clean-shaven; several alleged unwritten enforcement procedures such as tear-gassing or the withholding of food when inmates violate the clean-shaven requirement; and Department Rule 33- 3.02(6), Florida Administrative Code, which establishes the clean-shaven requirement for inmates at all correctional facilities.

   
   

2. The parties stipulated that Department Rule 33-3.02(6), invalidated in a prior rule-challenge proceeding, is not in force, and that the Department would not appeal the order invalidating that rule. As to Baker Correctional Institution Operating Procedure No. 78-0-13, it was agreed that the Department would withdraw, in writing and within a specified time frame, all provisions relating to the clean-shaven requirement. Finally, the Department adamantly denied that the clean-shaven requirement had been enforced by tear-gassing or withholding food from inmates. However, for the purpose of disposing of this case by stipulation, it agreed that no such enforcement procedures would be used to enforce the clean-shaven requirement at Baker Correctional Institution.

   
   

3. On November 16, 1983, W. Marion Ellis, Superintendent of Baker Correctional Institution--by written directive--withdrew and ordered deletion of all provisions of Operating Procedure No. 78-0-13 relating to the clean-shaven requirement.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding. 120.56, Fla.Stat. (1981).

   
   

5. All issues raised by petitioners in this rule challenge proceeding have been resolved by the parties' stipulation, now fully implemented. This case is, therefore, moot and must be dismissed.

   
   

6. The proposed findings of fact and conclusions of law submitted by petitioner Adams, not incorporated in this order, are rejected as contrary to the parties' binding stipulation and unsupported by fact or law.

Based on the foregoing, it is ORDERED:

That petitioners' Petition for Administrative Determination filed October 10, 1983, is dismissed because all issues raised therein have been resolved by the parties.

DONE and ORDERED this 3rd day of January, 1984, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 3rd day of January, 1984.

COPIES FURNISHED:

Douglas L. Adams, Joe

Lewis Holland, Curtis Head, and Melvin Davis

Baker Correctional Institution Post Office Box 500

Olustee, Florida 32072

Robert A. Leeper Assistant General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Randall Holland, Assistant Attorney General Administrative Law

1601 The Capitol

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 Capitol Building

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 83-003148RX

Orders for Case No: 83-003148RX