STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL CASEY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3208RX

)

DEPARTMENT OF CORRECTIONS, )

STATE OF FLORIDA, )

)

Respondent. )

)

FINAL ORDER

This administrative rule challenge was heard by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, on November 21, 1983, at Union Correctional Institution, Raiford, Florida.

APPEARANCES

For Petitioner: Gary N. Piccirillo

Qualified Representative

Lake City Community Corrections Center Lake Jeffrey Road

Lake City, Florida 32055

For Respondent: Randall Holland, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

and

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

Tallahassee, Florida 32301

ISSUE

Whether the Department of Corrections' alleged policy of forbidding phone calls between incarcerated husbands and wives, when the wives are incarcerated at Broward Women's Correctional Institution ("BWCI"), is an unpromulgated rule and therefore invalid.

BACKGROUND

On October 31, 1983, petitioner Carl Casey ("petitioner") filed a petition with the Division of Administrative Hearings challenging the validity of an alleged policy of respondent Department of Corrections ("Department") which "disallow[s] phone calls between incarcerated man and wife statue prisoners

who's [sic] wives are incarcerated at BWCI." It is alleged that the policy is a rule, as defined by Section 120.52(14), Florida Statutes (1981); that it has not been adopted as a rule in accordance with the rulemaking procedures of Section 120.54; and that it is, therefore, an illicit rule and an invalid exercise of delegated legislative authority.

Hearing was thereafter set for November 21, 1983. Petitioner was represented by Gary M. Piccirillo, who was found qualified under the criteria of Rule 28-5.1055, Florida Administrative Code. Petitioner testified in his own behalf and presented the testimony of Maury Long, Assistant Chaplain at Union Correctional Institution; Petitioner's Exhibit No. 1 was received into evidence. The Department presented no evidence, although the contents of Rule 33-3.125, Florida Administrative Code were officially recognized.

The parties waived the time limits of Section 120.56, and filed proposed findings of fact and conclusions of law by January 12, 1984. The transcript of hearing was filed on January 24, 1984.

FINDINGS OF FACT

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

1. The parties stipulate that petitioner has standing to maintain this proceeding i.e. that he is substantially affected by the challenged agency policy.

   
   

2. Petitioner is currently incarcerated at Union Correctional Institution; his wife is incarcerated at Broward Women's Correctional Institution (BWCI). Both institutions are part of the state prison system operated by the Department.

   
   

3. In August 1983, petitioner asked for permission to telephone his wife at BWCI, but his request was denied by Department officials. Under a BWCI policy, as well as a Department policy, inmates at other institutions are not normally allowed to place telephone calls to inmates at BWCI. The departmental policy is embraced by Rule 33-3.125(1)(e) , which provides:

   
   

   (e) Inmates may not receive incoming telephone calls because it is disruptive to normal operating and program functions of an institution.

   
   

   This rule effectively prohibits inmates from placing calls to inmates at other correctional institutions.

   
   

4. Petitioner has not shown that the Department's denial of permission was dictated by any written statement or policy other than that contained in this Department rule.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.56(1), Fla.Stat. (1981).

   
   

6. Petitioner, who is "substantially affected" by the challenged policy, has standing to bring this proceeding. 120.56, Fla.Stat. (1981)

7. Under the APA, 1/ rules are defined as including:

   
   

   each agency statement of general applicability that implements, interprets, or prescribes

   law or policy or describes the organization, procedure, or practice requirements 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.

   
   

   Rules must be adopted in accordance with the rulemaking procedures of Section

   120.54. Agency statements which act as rules, but have not been adopted as such, are deemed illicit or invalid rules, and may be challenged in Section

   120.56 proceedings. State Department of Administration v. Stevens, 344 So.2d

   290 (Fla. 1st DCA 1971); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

   
   

8. In such proceedings, it is the petitioner's burden to prove that the challenged agency policy statement has the effect of a rule but was not adopted as one. Here, petitioner has not met this burden. He has failed to show that the denial of his request was dictated by a non-rule policy of the Department. Rather, it is evident that his attempt to telephone his wife at BWCI was foreclosed by Rule 33-3.125(1)(e) Florida Administrative Code.

   
   

9. The parties' proposed findings of fact have been considered in preparing this order. To the extent the proposed findings were not consistent with the weight of credible evidence, they have been either rejected, or, when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial, or unnecessary, have been rejected.

For these reasons, it is ORDERED:

That petitioner's Petition for Administrative Determination of the Validity of a Rule, filed on October 11, 1983, is denied.

DONE and ORDERED this 6th day of February, 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 6th day of February, 1984.

ENDNOTE

1/ Chapter 120, Florida Statutes (1981).

COPIES FURNISHED:

Gary M. Piccirillo, Qualified Representative

Lake City Community Corrections Center Lake Jeffrey Road

Lake City, Florida 32055

Carl Casey

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Randy Holland, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

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

Tallahassee, Florida 32301

Liz Cloud, Chief Department of State

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301

Louia L. Wainwright, Secretary Department of Corrections

1311 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-003208RX

Orders for Case No: 83-003208RX