STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY FUNK, )

)

Petitioner, )

and )

)

RICHARD BRAGG, )

)

Intervenor, )

)

vs. ) CASE NO. 84-1550RX

) FLORIDA DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

) RICHARD BRAGG, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2056RX

) FLORIDA DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

A final hearing was held in the captioned consolidated cases on July 10, 1984, at Raiford, Florida. The issue is whether the action by Union Correctional Institution in denying inmates access to the Southwest Unit recreation yard during the weekday morning hours constitutes an unpromulgated rule. A preliminary issue is whether the petitioner and intervenor have standing under Section 120.56, Florida Statutes (1983).

At final hearing, prior to the taking of testimony, the following rulings, among others, were made on pending motions: Richard Braggs' Motion To Intervene in Case No. 84-1550RX was granted; Respondent's Motion To Dismiss Amended Petition in Case No. 84-1550RX was denied; Respondent's Motion To Dismiss Case No. 84-2056RX was granted; and Respondent's Motion To Dismiss the Petition Filed by Richard Bragg in Case No. 84-1550RX was denied.

APPEARANCES

For Petitioner Charles T. Scott of Union and Intervenor: Correctional Institute

For Respondent: M. Catherine Lannon, Esquire of

Tallahassee, Florida FINDINGS OF FACT 1/

1. Petitioner Jeffery Funk and intervenor Richard Bragg are inmates incarcerated at Union Correctional Institution. They are both housed in the Southwest Unit. (T 20, 28) Approximately 1200 other inmates also reside in the Southwest Unit.

   
   

2. Prior to the action taken by the Union Correctional Institution which is under challenge here, inmates had access to the Southwest Unit creation yard on week days from approximately 8:00 to 11:00 a.m. and 1:00 p.m. to 3:30 p.m. On April 18, 1984, an official memorandum was issued on the authority of the Union Correctional Institution of Recreational Therapy Director ordering that the Southwest Unit recreation yard be closed during the morning hours. Under the new schedule the Southwest Unit Recreation yard was opened for use by

   inmates on weekdays from noon to approximately 7:30 p.m. (T 68, 74) Initially, this new schedule was to be temporarily in effect. Subsequently, it was determined that the new schedule would be permanent until more staff could be hired. (T 59) This action was not promulgated as a rule.

   
   

3. Inmates who work an afternoon shift now have access to the yard on weekdays from approximately 6:00 p.m. until 7:30 p.m. (T 39, 65-66) As before, the yard also is open on weekend mornings, and inmates are permitted to do push- ups and run in place in their cells so long as they do not cause a disturbance.

   
   

4. Inmate Funk is not assigned to a job in the institution because of medical reasons. He uses the exercise yard at every available opportunity. The closing of the yard on weekday mornings has not reduced the total amount of time Funk is able to use the exercise yard but has only "affected [him] as far as getting any recreational activity at that time of day." (T 25)

   
   

5. Inmate Bragg has a job assignment in the bakery and culinary department and works from 11:00 until he finishes, approximately 4:00 to 6:00 p.m., seven days a week. Work assignments are mandatory, and sanctions or punishment are imposed for leaving an assignment without authorization. (T 29)

   
   

6. Under the new schedule for use of the exercise yard, Bragg can use the yard Monday, Tuesday, Wednesday and Friday for approximately one hour between 6:00 p.m. and 7:30 p.m. Under the old schedule, he used the exercise yard almost daily on weekday mornings. (T 30) As always, he has access to the exercise yard on weekend mornings.

   
   

7. Six (6) other inmates who work in the bakery and culinary department have work schedules similar to Braggs'. (T 29) In addition, approximately fifty to sixty other inmates have work assignments in the bakery and culinary department on weekday afternoons. (T 43, 44) However, these inmates do not work seven (7) days a week; they work twenty-four (24) hours one week and thirty-two (32) hours the next or, in other words, one day on and one or two days off. (T 65-66)

   
   

8. Floyd Donald Price and approximately eleven (11) other inmates housed in the Southwest Unit work in the law library. He and the other law librarian workers work from 12:00 noon until 8:00 pm. on weekdays. Before the yard was closed on weekday mornings, Price used the yard every weekday morning except Thursday.

9. Before the schedule change, approximately one hundred (100) men used the yard on weekday mornings. (T 44-47) This number then lowered to only ten

   (10) to fifteen (15) inmates when the institution supervisors began actively rounding up inmates for work details and fewer inmates were allowed in the exercise yard on weekday mornings. (T 69-70) Now that the schedule has changed, of course, no inmates use the yard on weekday mornings.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 120.56(1), Florida Statutes (1983), provides:

Any person substantially affected by a rule may seek an administrative determina- tion of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

Accordingly, before the question of whether a rule, or an alleged rule, is invalid may be addressed, there is a threshold question which must be addressed first and that is whether the person or persons who seek the administrative determination are substantially affected.

STANDING

In the instant case, the evidence shows that the schedule of time that the Southwest Unit recreation yard would be accessible was changed, generally speaking: from between 8:00 a.m. to 11:00 a.m. and 1:00 p.m. to 3:30 p.m.; to between 12:00 noon and 7:30 p.m.

Petitioner Funk failed to establish that he was substantially affected by the change in schedule. He has no work assignment. He is able to go to the recreation yard whenever it is open regardless whether it is available for use in the morning or in the evening. The right to utilize the recreation yard at a time of one's preference is not something in which an inmate has a substantial interest. If he had a morning work assignment, he could not use the recreation yard in the morning. When one commits a crime and is convicted of a crime, he gives up certain rights. One of those rights is to have control over one's scheduling preferences. In fact, if petitioner Funk were outside of prison and worked a normal eight to five job, he could not exercise or recreate in the mornings hours -- or in the afternoon hours either.

With regard to Bragg, the evidence is that Bragg's exercise time has been reduced. Before the schedule change, he could and did use the exercise yard almost every morning for up to approximately three (3) hours. Now he can use the yard on weekdays for approximately one (1) hour between 6:00 p.m. and 7:30 pm. (As before, he can use the yard on weekend mornings.)

The interest asserted by Bragg in this case is significantly more substantial than the interest asserted in Carl B. Cribbs, Douglas L. Adams, and Joe Lewis Holland v. Department of Corrections, Case No. 84-0599R, Order issued May 8, 1984. There, inmates attempted to challenge through a 120.56 proceeding an interoffice memorandum and institutional operating procedures governing hours during which inmates are permitted to watch television. On weekends and holidays, inmates are permitted to watch television up to fifteen (15) hours a day but cannot watch television programs that air at 11:00 p.m. In essence, some of the inmates could no longer watch their favorite late night television shows on weekends and holidays. In dismissing the Amended Administrative

Complaint with prejudice, the Hearing Officer ruled: "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), F.S., must be `substantially affected' in order for a rule challenge to be maintained."

In Bragg's' case, the amount of time that he can use the Southwest Unit exercise yard has been reduced from approximately three (3) hours to approximately one (1) hour on weekdays. This is significant enough reduction to give Bragg standing in this proceeding.

CHANGE OF SCHEDULE NOT A RULE

Petitioner and intervenor contend that the action taken at Union Correctional Institution changing the schedule of hours for inmate use of the Southwest Unit recreation and or, in their words, closing the yard on weekday mornings, constitutes a rule. The definition of a rule, as set forth in Section 120.52(15), Florida Statutes (1983), is as follows:

(15) "Rule means 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. The term also includes the amendment or repeal of a rule.

Although because of his particular circumstances Bragg is substantially affected by the schedule change so as to give him standing, the practical effect of the action taken by Union Correctional Institution does not reduce the overall amount of time during which the Southwest Unit exercise yard generally can be used by inmates. In fact, under the schedule change, the exercise yard is open for more total hours than before. The action is truly nothing more than a schedule change. For this reason, the action is not a statement of policy and does not meet the definition of a rule. The decision to permit use of the recreational yard, the decision as to the total number of hours during which the recreation yard would be made available for use by prisoners or a schedule change which has the practical effect of generally reducing inmate access to the exercise yard might all be rules. But these decisions are not at issue in these cases.

Petitioner's and intervenor's reliance on Department of Corrections v.

Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984), is misplaced. There, the memorandum at issue did, in effect, cut in half the number of days on which inmates could receive visitors. It, therefore, did involve a statement of general applicability that implemented policy and was a rule.

CONCLUSION

Petitioner Funk failed to establish that he is substantially affected by the challenged action. Intervenor Bragg established his standing to challenge the action taken by Union Correctional Institution in changing the schedule of

the hours during which the Southwest Unit Recreation yard would be open, as announced by memorandum dated April 18, 1984. However, intervenor Bragg failed to show that the action was a rule required to promulgated under Section 120.54, Florida Statutes (1983). Accordingly, it is

ORDERED:

The Amended Petitioner of Petitioner Funk is DISMISSED, and the Petition for Determination of Invalidity of Agency Rule of Intervenor Bragg is DISMISSED.

DONE and ORDERED this 9 day of August, 1984, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 9 day of August, 1984.

ENDNOTE

1/ Petitioner and Intervenor and the Respondent submitted proposed findings of fact. To the extent reflected in these Findings Of Fact, the proposed findings of fact are accepted; to the extent not reflected, they are rejected as either not being supported by competent, substantial evidence, being contrary to facts proved by petitioner or intervenor, being redundant or subordinate or being irrelevant.

COPIES FURNISHED:

M. Catherine Lannon Assistant Attorney General Administrative Law

The Capitol - Suite 1601 Tallahassee, Florida 32301

Charles T. Scott Qualified Representative #076553

Post Office Box 221 Raiford, Florida 32083

Liz Cloud, Chief

Bureau of Administrative Code Department of State

Suite 1802, The Capitol Tallahassee, Florida 32301

Carroll Webb, Executive Director Joint Administrative Procedures

Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 84-001550RX

Orders for Case No: 84-001550RX