STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS LAVERNE ADAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1485RX

)

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 it duly designated Hearing Officer, James E. Bradwell, on June 1, 1984. 1/

APPEARANCES

For Petitioner: Douglas Laverne Adams, pro se For Respondent: Jeffrey A. Miller, Esquire

Department of Legal Affairs

Room 1601, The Capitol Tallahassee, Florida 32301

Respondent's motion to dismiss the petition was heard at the outset of the final hearing herein. Following argument of that motion, it was denied and the merits of the instant petition were considered.

ISSUE

The issue presented herein is whether or not Union Correctional Institution's Policy and Procedure Directive 3.04.11 is a rule not promulgated pursuant to Section 120.54, Florida Statutes, and therefore is an invalid exercise of delegated legislative authority.

FINDINGS OF FACT

1. Petitioner is an inmate at Union Correctional Institution at Raiford, Florida. Petitioner is a black male affected by pseudofolliculitis barbae or "PFB," a skin condition caused by ingrown facial hairs which manifests itself in lesions and irritation in affected areas.

   
   

2. The best treatment for "PFB" is to refrain from shaving in the affected areas and allowing the facial hair to grow. Petitioner has allowed his facial hair to grow and does not at the present time shave. If an inmate chose, or for some reason was required to shave and irritation developed, medicinal preparations available at the institution's infirmary could be administered to alleviate the irritation. Further, should an infection or other serious medical problem develop as a result of the shave, arrangements would be made for such an

   inmate to see a dermatologist at the Lake Butler Institution's infirmary. Alcohol, although a drying agent, would further irritate the affected area. (Testimony of Dr. Julius Avilez, general practitioner employed at Union Correctional Institution's infirmary)

   
   

3. On February 26, 1981, Respondent issued Policy and Procedure Directive 3.04.11, Inmate Package Permit. The directive indicated that items containing alcohol would not be accepted in packages received by inmates at all institutions and community facilities within the Department of Corrections.

   
   

4. Subsequent to the issuance of the above directive, the Petitioner, on February 3, 1984, had several items confiscated from an approved package by Officer K. E. Scates, a Property Room Officer at the institution. Two plastic containers of splash-on aftershave cologne, trade name "Brut" with S and D alcohol content, were confiscated and are presently being held in the institution's Property Room as property of the State. The aftershave lotion was confiscated by the institution authorities pursuant to the above directive and the Petitioner was notified that the substance would be forfeited unless arrangements were made for return of the substance to either its source or Petitioner's family.

   
   

   CONCLUSIONS OF LAW

   
   

   PETITIONER IS NOT SUBSTANTIALLY AFFECTED BY THE RULE OR POLICY

   
   

5. Section 120.56(1), Florida Statutes, states:

   
   

   Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of

   delegated legislative authority. (emphasis added)

   
   

6. Petitioner has averred herein that he is substantially affected by the subject policy directive by relating that should he shave closely with a razor, his pseudofolliculitis barbae cannot be relieved without some type of alcohol- based aftershave lotion or cologne. Evidence herein demonstrates that although one affected with pseudofolliculitis barbae should not, in fact, shave, the problem may be relieved through existing resources available to Petitioner without the use of alcohol-based aftershave lotion or cologne. Additionally, inmates need not shave upon a finding of medical necessity. See Department of Corrections Emergency Rule 33ER84-1. Petitioner's complaint herein is the type considered to be "a minor annoyance that falls short of the sort of legally cognizable interest that, pursuant to Section 120.56(1), Florida Statutes, must be `substantially affected' in order for a rule challenge to be maintained." See, Carl B. Cribbs, Douglas L. Adams and Joe Lewis Holland v. Department of Corrections, Case No. 84-0599R, Final Order filed May 8, 1984. Based on the availability of medicinal preparations and other remedies, some of which are superior to the alcohol-based product sought by Petitioner, his request is herein concluded to be one of a personal preference which falls short of the "substantial effect" envisioned in Section 120.56(1), Florida Statutes.

   
   

   THE POLICY MEMORANDUM IMPLEMENTS AN EXISTING DEPARTMENT RULE

   
   

7. Based on the above conclusion, by parity of reasoning, further

   discussion of Petitioner's claim may be regarded as surplusage. However, based on my consideration of Rule 33-3.045(4)(c), Package Permits, Florida Administrative Code, that rule provides that no package may be received at an institution operated by the Department of Corrections if it contains any contraband.

   
   

8. Unless authorized by a physician or other authorized medical professional, inmates are banned from having in their possession any alcohol or alcoholic beverages. (emphasis added) Rule 33-3.06(6), Florida Administrative code. Based thereon, since alcohol is encompassed by that rule, which has been promulgated and deals with the subject prohibition, the challenged policy directive does not in and of itself purport to create rights or adversely affect others, nor is the policy virtually self-executing. See, Florida State University v. Dann, 400 So.2d 1304. The policy directive clearly implements Rule 33-3.06(6), Florida Administrative code, and is therefore not required to be formally promulgated. 1/ Since the aforementioned rules of the Respondent are not the subject of the Petitioner's challenge herein, it is ordered:

The Petitioner's Petition and the relief requested therein is dismissed with prejudice.

DONE and ORDERED this 26th day of September, 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 26th day of September, 1984.

ENDNOTES

1/ The parties were afforded leave to submit post-hearing

memoranda supportive of their respective positions. Memoranda were received and were considered by me in preparation of this Final Order. To the extent that the parties' proposed findings have not been incorporated in this Final Order, they have been deemed unsupported by the weight of the evidence, immaterial, subordinate or cumulative.

1/ In view of this conclusion, the policy directive here under attack is not an invalid exercise of delegated legislative authority which contravenes the strictures of Section 120.54, Florida Statutes.

COPIES FURNISHED:

Douglas Laverne Adams

Union Correctional Institution

P.O. Box 221-3-T-5 Raiford, Florida 32083

Jeffrey A. Miller, Esquire Department of Legal Affairs Room 161, The Capitol Tallahassee, Fl. 32301

Louie L. Wainwright, Sr. Secretary

Department of Corrections 1311 Winewood Blvd.

Tallahassee, Fl. 32301

Docket for Case No: 84-001485RX

Orders for Case No: 84-001485RX