STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL B. CRIBBS, DOUGLAS L. ) ADAMS and JOE LEWIS HOLLAND, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0599RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

This matter came on for final hearing at the Union Correctional Institution in Raiford, Florida before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on April 6, 1984. The petitioners appeared pro se. Respondent was represented by Kevin J. O'Donnell, a legal intern with the Department of Legal Affairs, Room 1601, The Capitol, Tallahassee, Florida, 32301, who appeared under the general supervision of Arthur C. Wallberg, Esquire, and Randall A. Holland, Esquire, who were not themselves present at the hearing.

Respondent's motion to dismiss amended petition/motion to strike was granted at hearing with leave to file a second amended petition, which was done instanter by repleading on the record to add, at the bottom of the first page of the first amended complaint, the following:

1. The above stated policy is restated in 83-30.5 under subsection (d)(4) for areas 2T and 3T at Union Correctional Institution.

2. In addition, the above noted policy is also stated under 83-3.05(c)(5) covering operations of television on the west unit

and Section (e)(6) for areas in the southwest unit at Union Correctional Institution.

Paragraph Fourth (3), pertaining to night workers, was deleted in the second amended administrative complaint.

During argument on the motion ore tenus to dismiss the second amended petition, petitioners conceded that they all lived on the main housing unit on 3T, and the motion to dismiss was granted, with prejudice, as to the newly added allegations of 2(C), but otherwise denied.

Petitioners challenge an interoffice memorandum and an institutional operating procedure governing hours during which inmates are permitted to watch television. Respondent concedes that neither the memorandum nor the institutional operating pro- cedure has been promulgated in the manner required for administrative rules. Between the parties there remains essentially only the following

ISSUE

Whether prison inmates' television viewing privileges are a legal interest of which the Administrative Procedure Act takes cognizance?

FINDINGS OF FACT

1. Until the memorandum and institutional operating pro- cedure here challenged were implemented, petitioners and other inmates at Union Correctional Institution were permitted (when not required to be doing something else) to watch television in common areas between three o'clock and eleven o'clock weekday evenings, and on holidays, between eight o'clock in the morning and two or three o'clock the following morning.

   
   

2. After somebody donated equipment for cable television at Union Correctional Institution, and after inmates, including Lionel E. Chase, had installed the cable, James D. Stephens, recreation director at Union Correctional Institution, met with six other members of a committee which included Colonel D. E. Jackson, Jim Reddish, Assistant Superintendent for Prisoners, Lieutenant Rothman (phonetic) and an inmate representative who had no say in developing policy. As a result of the meeting, a memorandum dated January 23, 1984, was addressed to the inmate population, stating:

   
   

   T.V. programs including sporting events beginning at 10:00 p.m. or before, shall be viewed to completion.

   
   

   Any program starting after 10:00 p.m. shall be terminated at 11:30 p.m., unless authorized in advance by the T.V. Policy Committee.

   
   

   Petitioners' Exhibit No. 3.

   
   

   Earlier, on January 3, 1984, Superintendent Massey signed Union Correctional Institution Operating Procedure No. 83-30, "Institutional T.V. Policy" (IOP 83-

   30) Petitioners' Exhibit No. 2. This document specified "selection and viewing procedures....[for] each respective housing area." With respect to every housing area in Union Correctional Institution, IOP 83-30 provides:

   
   

   On Monday through Friday, sets will be turned on at 3:00 P.M.; on weekends and holidays, sets will be turned on at 8:00

   A.M. All t.v.'s shall be turned off exactly at 11:30 P.M. Sports programming and special events that air past the time limit shall be viewed to completion.

   
   

   IOP 83-30.5(D)(4).

   
   

   Although signed by Superintendent Massey on January 3, 1984, IOP 83-30 is dated December 30, 1983. The memorandum and IOP 83-30.5(D)(4) have been enforced against petitioners.

3. In enforcing the new policy, correctional staff have not only turned the television sets off earlier on weekends, they have also closed the dayrooms earlier. The guards now padlock the dayroom doors when they turn off the television sets. In the past, the dayrooms remained open even after television viewing stopped, and inmates were allowed to read, paint, write letters and so forth. The inmates filed a grievance petition protesting this change in practice. Petitioners' Exhibit No. 1.

   
   

   Rule Rationale

   
   

4. Before installation of the cable, inmates had a choice of two or three programs, but they now have a much wider choice, at least when the cable is in good repair. A person or persons unknown have slashed the cable some half dozen times. There are inmates who believe the guards, some of whom reportedly do not feel inmates should watch television at all, have sabotaged the cable.

   According to some prison officials, it is the inmates who have slashed the cables, which, they say, is an indication of how high feeling runs between the inmate faction that prefers sports programs and the faction that does not. In any event, according to respondent's witnesses, it was for fear of inmates' quarrelling in choosing among the larger number of options cable television has brought that viewing hours on weekends and holidays were shortened. This does not, of course, explain why they were lengthened on weekdays. Nor was there any evidence that the greater range of television programs has caused any dissension among the inmates.

   
   

5. The hearing officer has had the benefit of the parties' posthearing submissions, including petitioners' proposed findings of facts, conclusions of law and final order. To the extent proposed findings of fact have not been adopted they have been deemed unsupported by the weight of the evidence, immaterial, subordinate or cumulative.

   
   

   CONCLUSIONS OF LAW

   
   

6. It was clear from the evidence that petitioners are affected by the IOP and the memorandum they here challenge. Without conceding that they are "substantially affected" within the meaning of Section 120.54(4)(a) , Florida Statutes (1983) respondent does not dispute that both the IOP and the memorandum apply to petitioners.

   
   

   MEMORANDUM CHALLENGED

   
   

7. Both the memorandum and the IOP apply only to Union Correctional Institution, but they resemble, in this respect, the policy directive stricken as an unpromulgated rule in Department of Corrections v. Sumner, No. AM-256 (Fla. 1st DCA; Mar. 22, 1984) in that they "appl[y] to future occurrences rather than resolving" any particular controversy arising out of past events. There as here the "superintendent's memorandum applies to everyone subject to

   the superintendent's power....[and its applicability is . . . general "

   While Rule 33-1.07, Florida Administrative Code, authorizes super- intendents of the separate correctional institutions to adopt operating procedures for their particular institutions, Rule 33-1.07(4), Florida Administrative Code, quoted with approval by the Sumner court, provides:

   
   

   Any material contained in such Directives and Operating Procedures that meets the definition of "rule" contained in Section 120.52(14), Florida Statutes, shall be promulgated as a rule of the Department, unless specifically exempted by Florida Statute.

   
   

   In short, the Sumner case controls on the question whether the memorandum and the IOP are rules" subject to challenge, and requires the conclusion that they are. The fact that the IOP states the same hours separately with respect to each housing area does not alter the fact that they apply uniformly to all housing areas at Union Correctional Institution.

   
   

8. Inasmuch as respondent has stipulated that neither the memorandum nor the IOP was adopted in accordance with Section 120.54, Florida Statutes (1983), governing the promulgation of administrative rules, the only remaining question is whether petitioners are substantially affected by the IOP and the memorandum or either of them.

   
   

   EFFECT INSUBSTANTIAL

   
   

9. Petitioners sought to demonstrate that they are substantially affected in part by showing that, as the challenged memorandum and operating procedure have been implemented, time for reading, writing letters and other activities has also been diminished. But nothing in either document requires or authorizes this result. The guards' practice of locking the dayroom doors when they turn off the television sets cannot be attributed to the language of the rule.

   
   

10. Petitioners are not complaining of the lengthened hours on weekdays. The only adverse effect of the rule is diminution of possible television viewing hours on weekends and holidays. No petitioner would be allowed to watch television more than 15 hours on those days. Of course, it is more than simply a question of the total amount of time. Shows airing after eleven o'clock could not be seen. It is difficult, nevertheless, to view the petitioners as substantially affected by the memorandum and operating procedure they are challenging here. Petitioners raise no question concerning the ownership or use of any prisoner's property. The television set does not belong to petitioners or any other prisoner, as far as the evidence shows. Turning television sets off is different than altering law library hours, or, as occurred in Sumner, halving visiting hours. Missing a television program is a minor annoyance that falls short of the sort of legally cognizable interest that, pursuant to Section 120.56(1), Florida Statutes (1983) , must be "substantially affected" in order for a rule challenge to be maintained.

It is, accordingly, ORDERED:

The second amended administrative complaint is dismissed with prejudice.

DONE and ENTERED this 8th day of May, 1984, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 8th day of May, 1984.

COPIES FURNISHED:

Kevin J. O'Donnell, Legal Intern Arthur C. Wallberg, Esquire Randall A. Holland, Esquire Department of Legal Affairs

Room 1601, The Capitol Tallahassee, Florida 32301

Carl B. Cribbs, Douglas L. Adams, and Joe L. Holland

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Blvd.

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Carroll Webb, Executive Director

Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 84-000599RX

Orders for Case No: 84-000599RX