STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL B. CRIBBS, DOUGLAS L. ADAMS, ) AND FOE L. HOLLAND, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1483RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this cause on June 1, 1984 at Union Correctional Institution, Raiford, Florida.

APPEARANCES

For Petitioners: Carl B. Cribbs, Douglas L. Adams,

and Joe L. Holland, pro se Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

For Respondent: Jeffrey Miller, Esquire

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

Petitioners, who at the time of the formal hearing in this proceeding, were inmates incarcerated at Union Correctional Institution, challenge as invalid "rules," Union Correctional Institution's Policy Memorandum (UCIPM) 65, regulating the use of typewriters by inmates.

BACKGROUND

By petition filed with the Division of Administrative Hearings on April 28, 1984 and assigned on May 3, 1984, Petitioners, Carl B. Cribbs, Douglas L. Adams and Joe L. Holland ("Petitioners") challenge as rules the validity of Union Correctional Institution's written policy statements regulating the use of typewriters by inmates. [Union Correctional Institution Policy Memorandum (UCIPM) 65.] Section 120.56, Florida Statutes.

At the hearing on June 1, 1984, Petitioners testified on their own behalf and presented the testimony of C. E. Crews, Law Librarian; Jim Reddish, Assistant Superintendent and Fred Combs, Mailroom Supervisor. Petitioner's Exhibits 1 through 5 were received into evidence. The Department presented no evidence. 1/

The Petitioners filed proposed findings of fact and conclusions of law on June 16, 1984. 2/ Petitioners' proposed findings and conclusions were considered by me in preparation of this Final Order. To the extent that the proposed findings were not consistent with the weight of credible credible evidence, they have been either rejected or, when possible, modified to conform to the evidence. Proposed findings which were subordinate, cumulative, immaterial or unnecessary have been rejected.

FINDINGS OF FACT

1. At the time of the formal hearing in this proceeding, Petitioners were inmates incarcerated at Union Correctional Institution.

   
   

2. Union Correctional Institution Policy Memorandum No. 65, issued June 7, 1976 and revised and effective since October 23, 1980, provides in pertinent part that:

   
   

   Inmates are prohibited from using typewriters for personal correspondence or for matters other than "official state business." Violation of that Policy Memorandum may constitute a basis for disciplinary action.

   
   

3. Petitioners have had mail returned to them because it was typewritten. (Petitioners' Exhibits 3, 4, and 5) Based on the returned mail to Petitioners, all of them have been substantially affected by the operation of the subject Policy Memorandum. As example, Petitioner Adams had several cards returned as being prohibited and was advised that if he questioned the return of those cards, he would be confined as a disciplinary action for questioning the operation of the rule as it relates to the returned cards. Additionally, Petitioner Adams lost a Clerk's job in the Law Library because he typed letters. Adams' dismissal resulted in lost "gain time" since he was dismissed for typing letters violation of Policy Memorandum No. 65. Petitioner Holland filed an application for a grant to a community college which was returned because it was typed in violation of Policy Memorandum No. 65. Finally, Petitioner Cribbs was unable to attend a favorite aunt's funeral because his request was typewritten and it was returned as being in violation of Policy Memorandum No. 65.

   
   

4. The employees at Union Correctional Institution adhere to Policy Memorandum No. 65 strictly and employees who are derelict in their responsibilities covered in implementing that policy are subject to disciplinary action. UCIPM 65.5. (Petitioners' Exhibit 1)

   
   

5. UCIPM 65 is a department policy, never promulgated as a rule, uniformly applied throughout Union Correctional Institution. It is, by its own terms, virtually self-executing and intended to require compliance. It therefore has the consistent effect of law.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter to this proceeding. Section 120.56, Florida Statutes.

   
   

7. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

8. Petitioners are substantially affected by the policy memorandum (UCIPM No. 65) here at issue. As such, Petitioners have standing to bring and maintain this administrative rule challenge proceeding. Section 120.56, Florida Statutes.

   
   

9. Union Correctional Institution Policy Memorandum No. 65 has the effect of a rule, as defined by Section 120.52(14), Florida Statutes, and is therefore an invalid exercise of delegated legislative authority. Based thereon, it is ORDERED:

   
   

10. That Union Correctional Institution Policy Memorandum No. 65, revised October 23, 1980, constitutes a rule within the meaning of Section 120.52(14), Florida Statutes, which was not properly adopted and is therefore declared to be an invalid exercise of delegated legislative authority.

DONE and ENTERED this 4th day of October, 1984, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 4th day of October, 1984.

ENDNOTES

1/ At the outset of the hearing, Respondent's Motion to Dismiss the petition herein was considered. In support of its Motion to Dismiss, Respondent maintained that Petitioners do not have standing to challenge this policy as an unpromulgated rule. In support of that motion, Respondent presented the testimony of James W. Miller the Educational Program Manager at Union Correctional Institute. Respondent's Motion to Dismiss was denied as Petitioners demonstrated that they had standing to pursue this challenge.

2/ The parties waived the requirement that the undersigned enter a Final Order within 30 days following the close of the hearing.

COPIES FURNISHED:

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

Union Correctional Institution

P.O. Box 221

Raiford, Florida 32083

Jeffrey Miller, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Fl. 32301

Louie L. Wainwright, Sr. Secretary

Department of Corrections 1311 Winewood Blvd.

Tallahassee, Fl. 32301

Docket for Case No: 84-001483RX

Orders for Case No: 84-001483RX