STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LONNIE WALKER, DOUGLAS L. ADAMS, ) CARL B. CRIBBS and JOE LEWIS ) HOLLAND, )
)
Petitioner, )
)
vs. ) CASE NO. 84-0657RX
)
DEPARTMENT OF CORRECTIONS, )
)
Respondent. )
)
FINAL ORDER
These proceedings began when petitioners filed a petition for determination of the invalidity of an existing rule, calling into question the validity of Rules 33-3.02(2), 33-3.025, and 33- 3.06(1)(b), Florida Administrative Code, and challenging a memorandum dated February 1, 1984, concerning limits on kinds and amounts of inmate property signed by D. E. Jackson and P. V. Gunning, as an unpromulgated rule.
This matter came on for final hearing at Union Correctional Institution in Raiford, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on March 16, 1984. The petitioners appeared pro se. Respondent appeared through a legal intern, Kevin J. O'Donnell, who was attached to the Department of Legal Affairs, and appeared unaccompanied by counsel, but under the general supervision of M. Catherine Lannon, Esquire, Assistant Attorney General, Suite 1601, The Capitol, Tallahassee, Florida 32301. The parties were allowed 30 days for submission of proposed orders.
ISSUES
Whether the memorandum petitioners challenge amounts to a rule improperly promulgated? Whether the rules petitioners challenge are arbitrary and capricious or are otherwise beyond the authority delegated to respondent?
STANDING STIPULATED
At the beginning of the hearing, Mr. O'Donnell stated a motion ore tenus to strike paragraph five of the petition, in which the memorandum was challenged, on grounds that a challenge to the memorandum was premature, quoting the memorandum: "[T]he limits contained in this memorandum will not be enforced until April 1, 1984." After argument, the hearing officer was persuaded that the challenge was not premature on its fact, inasmuch as inmates with "items no listed . . . or an excessive amount of property" must decide whether to dispose of property before April 1, 1984, or suffer its confiscation; since nothing further was required for the memorandum to be efficacious; and since failure to enforce a rule does not alter its character as a rule.
After the motion to strike was denied, Mr. O'Donnell stipulated, on the record, that standing was not in issue. He nevertheless argues in respondent's "proposed findings of fact-- conclusions of law--final order," as follows:
Knowing the issue of standing as to the memo to have been put at issue by Respondent, it was incumbent upon Petitioner to place into the record some indication of impact. Having failed to do so, Petitioners lacked standing to challenge the memo. State v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979).
9. The issue of the adverse impact of the memo is crucial to a proper determination of whether the memo is an invalid exercise of delegated legislative authority.
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The memo, rather than adversely affect inmates, may not have any substantial impact on Petitioners. Section 120.56, Fla. Stat. Again, Petitioner entirely failed to introduce evidence on this point.
This argument is precluded by Mr. O'Donnell's stipulation on the record at the hearing. Having stipulated that no proof was necessary to show the impact of the memorandum, respondent cannot now be heard to complain of the absence of proof on that point.
Mr. O'Donnell also stipulated that the memorandum was not promulgated in accordance with Section 120.54, Florida Statutes (1983).
FINDINGS OF FACT
It is clear from its title that the memorandum is meant to apply only to Union Correctional Institution. The body of the memorandum, dated February 1, 1984, provides, in full:
The attached 1/ is a list of the type and quantity of inmate property authorized at UCI. Inmates may also possess items sold by the Canteen, items received through an approved Package Permit, items authorized to be in cells as part of the Hobbycraft Program and items issued by the state.
Property Quantity limits are necessary to prevent fires and control insect infestation. In addition, they provide a standard for both inmates and staff to follow in determining if an inmate's amount of property is excessive.
Since many inmates have accumulated property for a long time, the limits contained in this memorandum will not be enforced until
April 1, 1984. Inmates who have items not listed in this me[m]orandum or an excessive amount
of property should begin making arrangements to send items out of the institution.
Inmates who need to dispose of property should send a request to Sgt. Singletary, Property Officer. Items may be mailed somewhere or placed on the Main Gate for pick-up by a visitor.
Your cooperation in reducing the amount of excess property yourselves, prior to April 1, 1984, will be greatly appreciated.
Petitioners' Exhibit No. 2.
It is signed by D. E. Jackson, Colonel, Correctional Officer Chief II, and P. V. Gunning, Assistant Superintendent of Operations.
Dennis Dean Cooper is an inmate at Union Correctional Institution. In the month or two preceding the hearing, prison personnel confiscated wax, a wooden mallet, a hammer, a knife and rubber glue, all belonging to Cooper, who had acquired them, after
gaining approval to do so, in connection with the Hobbycraft program. Guards searched from cell to cell and filled a 50 gallon barrel with items they took from Dean's cell alone.
Kenneth Hayes' right eye was injured in a boxing accident. A governmental agency set up to assist the blind issued Hayes, an inmate at Union Correctional Institution, a green tape cassette recorder which prison personnel seized on January 19, 1984; they also took the stool he had made with approved Hobbycraft materials.
That was the same day, or perhaps the day before, William Joseph Goens, an inmate house in the Main Housing Unit at Union Correctional Institution, lost his inlaid wooden chessboard in a "shakedown." Another inmate, Clayton, had given him the chessboard. Goens later saw the chessboard in a trash barrel in the back of a dump truck.
Incarcerated at Union Correctional Institution and housed at 3T8, John Richard Clayton also lost property in the January 1984 shakedown, including Hobbycraft items, personal letters and letters from his attorney bearing on the proceedings eventuating in his incarceration. He is skilled at leather working and sometimes has temporary possession of other inmates' leather goods for purposes of effecting their repair. An electric fan which an inmate transferred to another institution had given Clayton before leaving was also confiscated.
When prison personnel proposed to confiscate John McConnell's legal papers, if he did not dispose of them himself, he called several lawyers. Eventually he was issued a metal locker to which he transferred his legal papers from the cardboard box that had held them. No papers were ever confiscated.
Petitioner Carl Cribbs, also confined at Union Correctional Institution lost two, bound folders containing legal documents, including 13 affidavits, as well as an electric fan, when these items were confiscated by prison guards on January 19, or 20, 1984.
Radios and electric fans are registered as a means of identifying them. They are treated as contraband except when they are in the possession of the inmate to whom they are registered. If an inmate lends property to another inmate, it may become contraband subject to confiscation, regardless of the type of property involved. These practices protect inmates from theft, which is rampant at Union Correctional Institution.
Guards and inmates alike are subject to "shakedowns" without notice as a means of controlling the flow of contraband. Under the right circumstances, virtually any property in an inmate's possession might be seized. At one time inmates were permitted to have matches and buy honey from the canteen in glass jars. After they began hurling empty honey jars at one another, the canteen switched to plastic containers for honey, and glass jars of all kinds were treated as contraband and confiscated. Inmates are still allowed cigarette lighters, but matches have been contraband ever since the authorities learned that new equipment in the shop made it possible for the inmates to manufacture zip guns. On the other hand, inmates are allowed Hobbycraft items, under ordinary circumstances, including X-acto knives. These knives have blades less than an inch long, but could be lethal if used as a weapon. If an inmate if found guilty of a rule infraction and subjected to administrative confinement, his property is confiscated. If an inmate attempted suicide, even his clothes might be removed.
Petitioner Joe Lewis Holland, confined at Union Correctional Institution at the time of the hearing, had legal papers confiscated while he was at Baker Correctional Institution, but eventually recovered them pursuant to court order. Douglas L. Adams and Joe Lewis Holland v. Department of Corrections ex rel. Louie L. Wainwright, Secretary, et al., No. AV-483 (Fla. 1st DCA; December 13, 1983). At Baker Correctional Institution everything that did not fit into a bed locker was treated as contraband.
David Watson, Assistant Superintendent at Florida State Prison, has been ordered by the fire marshall to cause large cardboard boxes of papers to be removed from the prison. Some items seized as contraband are burnt. Others are given to the Boys' Ranch or the inmates' welfare fund.
All Florida prisons have storage rooms and inmates are ordinarily issued lockers, but there are physical limits on how much personal property can be stored at Union Correctional Institution or any other prison. Too many things in prisoners' cells make for problems with sanitation and insect infestation.
CONCLUSIONS OF LAW
The petitioners' standing to challenge the memorandum and rules at issue in the present case has been stipulated. The evidence is no less clear here, moreover, than in Department of Corrections v. Sumner, No. Am-256 (Fla. 1st DCA; Mar. 22, 1984)
that these petitioners "would be likely, on occasion, to have more [or different property] . . . than allowed under the . . . memorandum." In Sumner, standing was predicated on the likelihood of more or different property, but this difference has no legal significance.
MEMORANDUM CHALLENGED
Although the memorandum dated February 1, 1984, applies only to Union Correctional Institution, it is like the policy directive stricken as an unpromulgated rule in Sumner, in that it "applies 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 i]ts applicability is . . . general. . . ." While Rule 33-1.07, Florida Administrative Code, authorizes superintendents 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 of February 1, 1984, is a "rule" subject to challenge, and requires the conclusion that it is.
Inasmuch as respondent has stipulated that the memorandum was not adopted in accordance with Section 120.54, Florida Statutes (1983), governing the promulgation of administrative rules, the memorandum is invalid as a rule.
RULES CHALLENGED
The thrust of petitioners challenge to the rules that have been formally adopted is that the prison authorities have reserved too broad a discretion in themselves as to when and what personal property may be seized. The challenged provisions read:
(2) The Superintendent or Officer-In-Charge shall give to every assigned inmate, upon being received at the institution, a written receipt for money or other valuables that are in excess of that allowed by institutional policies. When such monies or valuables are returned a receipt shall be obtained from the inmate. Inmates shall be given an opportunity to send money or valuables to their families or other persons of their choice at no expense to the Department of Corrections. When it becomes necessary to confiscate and impound the authorized personal property of an inmate subsequent to his reception in the institution, it will be immediately inventoried by an officer, whenever practical in the presence of the inmate, and a written, signed receipt itemizing the property will be given the inmate. Proper procedures will be taken to safeguard and store such property so as to prevent its loss, damage or theft. Upon release of the property, a signed receipt will be obtained from the inmate. Money in excess of amount allowed by institutional policies found in the possession of an inmate will be handled in accordance with Chapter
33-3.06(4) of these rules.
Rule 33-3.02, Florida Administrative Code.
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33-3.025 Inmate Property. When it is necessary to take and impound items of personal property belonging to an inmate, that property shall be taken, handled, processed, and secured in a manner which will safeguard it from loss, damage, destruction or theft while it is under the control of the Department.
When personal property of an inmate is taken, it will be inventoried according to the following procedure and, whenever practical, in the presence of the inmate.
The inventory shall specifically list
and identify each item or each group or package of personal items such as letters, legal papers, etc.
The inventory list shall be signed and dated by the employee recording the inventory and signed by the inmate, each in the presence of the other, unless doing so would be a danger or a threat to security, or unless the inmate is unavailable.
If an inmate refuses to sign the inventory list, or is not present, that fact will be noted on the inventory and signed by the employee making the inventory and also by a second employee.
The inventoried property will be kept together and identified by placing one signed copy of the inventory with the property.
One signed copy of the inventory shall be given to the inmate.
After being inventoried, the property will be removed as soon as possible to a secure area where it will be safe from loss, theft or damage and to which other inmates do not have access.
Authorized property impounded during a period of administrative or disciplinary confinement shall be held at the institution and returned to the inmate at the end of such period.
If it is appropriate to return part, but not all, of the impounded property to the inmate, the following procedure will be followed:
That part of the property being returned will be listed on the approved release form and any property found to be missing at that time will be noted on the form. The employee making the release and the inmate will date and sign the release from in the presence of the other. One signed copy of the release form shall be given to the inmate. One copy shall be attached to the original inventory list and kept with the remaining impounded property.
A third copy shall be placed in the inmate file.
The remaining impounded property shall be held by the institution for 30 days. It shall be the responsibility of the inmate to make arrangements to have the property picked up by an approved visitor or sent to a relative or friend. The 30 day time period shall not include any time during which an appeal or grievance proceeding relating to the impounded property is pending. This paragraph does not apply to property that will be returned to the inmate pursuant to subsection (3) after he is released from administrative or disciplinary confinement.
When property is picked up by an authorized visitor, the individual receiving the property shall sign the inventory list acknowledging receipt of the property. When arrangements for mailing of property have been made by the inmate, the inmate shall sign the inventory list indicating that property to be mailed.
When all of the impounded property is being returned, the following procedure will be followed:
The property being returned will be given to the inmate to check, in the presence of the employee making the release, to determine that all the property listed on the inventory is being returned to him.
The inmate will sign and date the original inventory list to indicate he has received all of the impounded property. The employee will sign as a witness and the receipt shall be placed in the inmate record file.
If items of personal property listed on the inventory cannot be located at the time the property is returned, those items shall be indicated as being missing on the inventory list.
When an inmate whose personal property has been taken and impounded is transferred to another facility, that property should be
transported to the receiving facility with the inmate and the procedures for returning property listed in (4) and (5) shall be followed. When the inmate has excessive property which cannot be transported with him, the procedures for making a partial return listed in (4) shall be followed.
When an inmate is admitted to the Department through a Reception Center or other facility, he or she is requested to sign the Authorization for Disposition of Mail and Property form, effective 6-4-81, available from the Department of Corrections.
If the inmate refuses to sign the Authorization for Disposition of Mail and Property, he or she will not be allowed to keep any personal property while confined within the Department of Corrections. The inmate shall have thirty (30) days to arrange for the disposition of impounded property under the provisions of subsection (3).
When an inmate is not under the immediate control of the Department for an extended period (more than a few hours) with the prior knowledge of the Department and his or her personal property, does not accompany him or her, it will be inventoried and held until
his or her return. This provision shall not apply to a type A or B furlough.
When an inmate escapes or otherwise voluntarily abandons his or her property, that property will be inventoried and held for thirty (30) days and procedures listed below will be followed:
A reasonable attempt will be made to locate the person or persons indicated on the inmate's notification record who will take possession of the property.
If this effort is successful, a signed receipt for the property will be obtained from the person taking possession of the property, and the receipt will be placed in the institutional inmate file.
If the effort to locate the person or persons is not successful, or if the person or persons listed fail to make arrangements to take possession, the property will be disposed of in accordance with the provisions of the form set forth in subsection (7).
If items of impounded property cannot be located and are missing when the property is returned to the inmate, a written report of this fact, listing the missing items and their possible value shall be given to the Assistant Superintendent or other designee of the Superintendent or Officer-in-Charge, who will conduct or initiate a thorough investigation of the loss.
The Assistant Superintendent or other designee shall complete the investigation and submit his report of it to the Superintendent or Officer-in-Charge in thirty (30) days.
The Assistant Superintendent's or designee's report will identify any employee determined by the investigation to be responsible for the loss. The Superintendent or Officer-in-Charge may take appropriate administrative action under personnel rules of the Department, Chapter 33-4. F.A.C., or may refer the matter to the State Attorney for possible prosecution where there is evidence of theft.
If the lost or stolen property cannot be located and returned the inmate suffering the loss shall be advised to submit a Direct Grievance Request, Form DC-77A, to the Secretary's Office. The Secretary's office shall review the matter and determine whether the claim should be forwarded to the Division of Risk Management of the Department of Insurance for restitution or other final settlement.
Rule 33-3.025, Florida Administrative Code.
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(1)(b) Any item or article not originally contraband shall be deemed contraband if it is passed from one inmate to another without
authorization or if it is altered from its original condition.
Rule 33-3.06(1)(b), Florida Administrative Code.
Assistant Superintendent Watson's testimony was convincing evidence that a broad discretion should remain in correctional personnel as to when and what kind of property should be taken from inmates.
Rule 33-3.06(1)(b), Florida Administrative Code does not decrease the guards' discretion in these matters, in declaring contraband any item "passed from one inmate to another without authorization," inasmuch as there is no requirement in the rule that the authorization precede the transfer. This broad grant of authority undoubtedly discourages theft since stolen items are subject to summary confiscation. Inmates are on notice that articles on loan or given to an inmate may also be confiscated, and this authority was shown to be required by the exigencies of prison life.
In making contraband any item "if it is altered from its original condition," Rule 33-3.06(1)(b), Florida Administrative Code, leaves no discretion in the guards or other prison officials. This blanket proscription was not shown to have any rational basis in fact. (If the alteration of a particular item does make confiscation necessary, there is, of course, authority under other rules to seize the item.) The evidence showed that inmates were issued or allowed to acquire property under the Hobbycraft program for the express purpose of altering it, for fashioning wood into a chessboard or a stool, for example. But, under this rule, an inmate's pencil becomes contraband when it is sharpened. A fresh piece of paper altered by writing is likely to be less of a problem to the correctional officials than an (unaltered) X-acto knife, even if the pen is mightier than the sword.
The memorandum dated February 1, 1984, from Messrs. D. E. Jackson and P. V. Gunning to the inmate population of Union Correctional Institution is declared invalid as a rule for want of having been promulgated in accordance with the required procedures.
The part of Rule 33-3.06(1)(b), Florida Administrative Code, which reads "or if it is altered from its original condition" is declared an invalid exercise of delegated legislative authority.
The petitioner for determination of the invalidity of an existing rule is otherwise denied.
DONE AND ENTERED this 7th 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 7th day of May, 1984.
ENDNOTE
1/ The second page of the memorandum listing the property allowed is attached as an appendix to this order.
COPIES FURNISHED:
Kevin J. O'Donnell, Legal Intern
M. Catherine Lannon, Esquire Department of Legal Affairs Suite 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 Boulevard
Tallahassee, Florida 32301
Liz Cloud, Chief
Bureau of Administrative Code 1802 The Capitol
Tallahassee, Florida 32301
Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| May 07, 1984 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| May 07, 1984 | DOAH Final Order | The challenged rule and a memo promulgated under its aegis are invalid in so far as they broaden statutory limits of prison authority over inmate property. |
