STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY M. PICCIRILLO, JESSE J. ) WOLBERT, and ALLEN L. PENOYER, )

)

Petitioners, )

)

vs. ) CASE NO. 84-2220RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on July 25, 1984, at Clermont, Florida.

APPEARANCES

For Petitioners: Gary M. Piccirillo, Jesse J.

Wolbert and Allen L. Penoyer, Pro Se Lake Correctional Institution

Post Office Box 99 Clermont, Florida 32711

For Respondent: John J. Rimes, Esquire and

Lisa Santucci, Esquire Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

By Petition to Determine the Invalidity of an Existing Rule and Policy Rule, Gary M. Piccirillo, Jesse J. Wolbert, and Allen L. Penoyer, Petitioners, seek to have Rule 33-3.04, Florida Administrative Code, Department of Corrections Policy and Procedure Directive (PPD) No. 4.07.05, and an unwritten policy at Lake Correctional Institution (LCI) which requires inmates to sign for registered and legal mail, declared invalid. Petitioners were allowed to amend their petition at the hearing to include a challenge to Lake Correctional Institution Operating Procedure (LCIOP) No. 84-3 on grounds it was a rule and not promulgated in compliance with the requirements of Chapter 120, Florida Statutes.

At the conclusion of the hearing Petitioners withdrew the challenge to Rule 33-3.04, Florida Administrative Code, leaving only PPD No. 4.07.05 (Exhibit 2), Form 50-16, Legal and Registered Mail Log Form (Exhibit 1), which inmates are required to sign to receive legal mail, and LCIOP No. 84-3 still subject to challenge.

At the hearing Petitioners called six witnesses and two exhibits were admitted into evidence. Proposed findings submitted by Respondent, to the extent included herein, are adopted; otherwise they are rejected as unsupported by the evidence, immaterial, or unnecessary to the conclusions reached.

FINDINGS OF FACT

1. At all times relevant hereto Petitioners were inmates incarcerated at Lake Correctional Institution (LCI) are affected by the challenged rule, and have standing to bring the rule challenges here involved.

   
   

2. Respondent stipulated that neither PPD No. 4.07.05, LCIOP No. 84-3, nor Form 50-16 was promulgated as rules pursuant to the provisions of Chapter 120, Florida Statutes.

   
   

3. Prior to receipt of incoming legal mail or sending out legal mail, inmates at LCI are required to sign Form 50-16 acknowledging mailing or receipt of such mail.

   
   

4. Some testimony was submitted that on occasion inmates received their legal mail opened contrary to established procedures and directives. Also, one witness testified that he had not always received returned receipts for registered mail.

   
   

5. Those parts of PPD 4.07.05 (Exhibit 2) and LCIOP No. 84- 3, which involve action to be taken either by inmates or Department of Corrections personnel, are identical to, or a paraphrasing of, similar provisions in Rules 33-3.03 through 33- 3.12, Florida Administrative Code. Those sections not directly relating to action taken or to be taken constitute internal management memoranda which have no application outside LCI.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

7. Section 120.52(14), Florida Statutes, defines "rule" and provides the term does not include internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum.

   
   

8. After carefully comparing the provisions of PPD No. 4.07.05 and LCIOP No. 84-3 with similar provisions in Chapter 33- 3, Florida Administrative Code, it is concluded that, for all practical purposes, they are identical with the exceptions of a very few sentences in the challenged documents which are explanatory rather than directive or which constitute internal management memoranda as defined in the above-cited statutes.

   
   

9. Form SD-16 is clearly an internal management tool to maintain accountability for registered mail and legal mail as the latter is defined in Rule 33-.305, Florida Administrative Code. It has no application outside LCI and affects only those inmates who receive or send registered or legal mail.

   
   

10. From the foregoing it is concluded that Petitioners have failed to prove that PPD 4.07.05 and LCIOP No. 84-3 do other than duplicate existing rules or that Form 55-16 is a rule subject to the procedural requirements of Suction 10.54, Florida Statutes. It is

ORDERED that the Petition of Gary M. Piccirillo, Jesse J. Wolbert, and Allen L. Penoyer challenging the validity of PPD No. 4.07.05, LCIOP No. 84-3, and Form SD-16 as improperly promulgated rules be dismissed.

DONE AND ORDERED this 28th day of August, 1984, at Tallahassee, Florida.

K. N. AYERS 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 28th day of August, 1984.

COPIES FURNISHED:

Gary M. Piccirillo

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711

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

Tallahassee, Florida 32301

Jesse J. Wolbert

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Capitol, Suite 1802 Tallahassee, Florida 32301

Allen L. Penoyer

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711

Carroll Webb, Executive Director Joint Administrative

Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Louis A. Verges, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

John J. Rimes, III, Esquire

and

Lisa Santucci, Esquire Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

Docket for Case No: 84-002220RX

Orders for Case No: 84-002220RX