STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HECTOR LEON, JR., VERNON VAUGH, ) DOUGLAS L. ADAMS, JOE LEWIS ) HOLLAND, and JOSEPH REDMAN, )

)

Petitioners, )

)

vs. ) CASE NO. 84-2603RE

)

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 August 6, 1984, at Raiford, Florida.

APPEARANCES

For Petitioners: Hector Leon, Jr., Vernon

Vaugh, Douglas L. Adams, Joe Lewis Holland, and Joseph Redman, pro se

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

For Respondent: Catherine Lannon, Esquire

Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

and

Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

By Petition to Determine the Invalidity of an Emergency Rule dated July 13, 1984, Hector Leon, Jr., et al., Petitioners, seek to have Rule 33ER 84-4 declared invalid. As grounds therefore, it is alleged the rule is unconstitutional in that it interferes with some of Petitioners' religious beliefs; that some of the Petitioners suffer from Pseudofolliculitis Barbae (PFB) and the rule has required them to shave which has aggravated their PFB; that no emergency exists to justify the rule; that Respondent has failed to file specific facts to justify a finding that the rule is needed to protect the health, safety, and welfare of the public; that this rule is void as it constitutes renewing an emergency rule on the same subject; the rule is arbitrary and capricious; and the rule is void for vagueness.

At the beginning of the hearing, Respondent moved to dismiss Petitioners Leon and Vaugh on grounds no facts are alleged to support their position; and to dismiss Adams on grounds that the identical issues have been litigated between Adams and Respondent and those issues are res judicata. Ruling on those motions were reserved at the hearing. Those motions are now denied as a matter of expediency and not on the merits.

Thereafter Petitioners called seven witnesses, Respondent called three witnesses, and eight exhibits were admitted into evidence. Proposed findings submitted by the parties, to the extent incorporated herein, are adopted; otherwise they are rejected as not supported by the evidence, immaterial, or unnecessary to these proceedings.

FINDINGS OF FACT

1. Anthony Cash is a Hebrew Israelite who has a medical exemption from shaving but contends his religious beliefs obtained from the Bible teach him to not cut his hair or beard. His religious beliefs also forbid stealing but the sentence which subjected him to Respondent's rules was awarded following a conviction for robbery.

   
   

2. Hector Leon, Jr., has a medical exemption to grow a beard and, like Cash, contends that his Muslim religious beliefs forbid him from shaving. However, he acknowledged that all Muslims do not grow beards.

   
   

3. Vernon Vaugh claims to be a member of Rastafarian, whose religious beliefs require he grow a beard, mustache, and braid his hair in ropes. Vaugh was involved in challenges to an earlier proposed rule and an emergency rule on beards and haircuts. He contends this emergency rule was not posted on the bulletin board and no Corrections officer advised him of the contents of the challenged rule.

   
   

4. James Pratt has PFB and has a medical pass to grow his beard 10 mm long. He has seen the rule on the bulletin board regarding shaving and haircuts.

   
   

5. Joe Lewis Holland was a petitioner in earlier challenges of rules involving shaving and haircuts. He, too, has a medical pass to grow a beard and is unaware of any factors which would justify the issuance of an emergency rule. Holland has a record of escaping from prison.

   
   

6. Douglas L. Adams was involved in earlier challenges to rules similar to that here involved and testified that this emergency rule was promulgated because of challenges to a substantially identical proposed rule. Adams, too, has a medical pass to grow a beard and primarily contends the rule is invalid because it fails to provide for a religious exemption.

   
   

7. The primary purpose of this rule is to facilitate identification if a prisoner escapes or if involved in a fracas inside the prison. Beards and long hair can be quickly cut and thereby drastically change a person's appearance. Growing hair to accomplish a similar change of appearance takes much longer. There have been no recent escapes or attempted escapes from Union Correctional Institution.

   
   

8. Reasons stated by the Respondent for finding an immediate danger to the public health at the time the rule was filed are:

   The Department's rule requiring inmate to be clean shaven has recently been held invalid because of a failure to include provision for medical exemptions. If inmates were able to grow their hair to any length and to grow beards and mustaches, it would seriously interfere with the identification of inmates by staff and impede recapture efforts after escapes. To maintain institutional security and order it is essential that staff members be able to identify inmates easily.

   Correctional officers must see and recognize large numbers of inmates daily. When it is necessary to stop and scrutinize or demand identification from each or a significant number of these inmates, the correctional officers are seriously impeded in their performance of other tasks and do not have time to properly attend to their other duties. The inability to quickly identify inmates jeopardizes the security and safety of correctional staff and of inmates. The rule is also necessary to prevent escapes and to facilitate recapture of inmates. When an inmate escapes recapture efforts in most cases are primarily based upon the distribution by the Department of Corrections of a recent photograph of the inmate.

   Without the rule an inmate can change his appearance in a short period, rendering the photograph useless. The rule is necessary to maintain consistency of inmate appearance.

   It is essential for the safety and welfare of the public that escaped inmates are identified and recaptured quickly. The rule facilitates this. The history of this rule is as follows:

   Rule 33-3.02(6), which provided that all male inmates were to be clean shaven, was held invalid in Division of Administrative Hearings Case No. 83-2047R, Ridley

   et al. v. Department of Corrections. The Hearing Officer's Final Order was entered October 12, 1983. The rule was held invalid because of

   its failure to allow exemptions for justified medical reasons.

   On November 18, 1983, the Department adopted emergency rule 33ER 83-3, which provided, inter alia, that all male inmates were to be clean shaven, with an exemption when qualified medical staff determined that shaving would be detrimental to the inmate's health.

   On February 3, 1984, the Department initiated promulgation of a regular rule amending

   33-3.02(5).

   On February 15, 1984, DOAH Case No. 84-0598R, Redman et al. v.

   Department of Corrections, was filed, challenging proposed rule 33-3.02(6)

   On February 16, 1984, 33ER 83-3 expired.

   On March 21, 1984, the Department adopted 33ER 84-1, which read substantially the same as 33ER 83-3.

   On April 18, 1984, a Final Order was entered in DOAH Case No. 84- 0598R, holding parts of proposed rule 33-3.02(6) invalid.

   On June 1, 1984, the Department initiated promulgation of a regular rule designed to meet the deficiencies found by the Hearing Officer in the previous proposed rule 33-3.02(6).

   On or about June 8, 1984, DOAH Case No. 84-2058R, Bentley et al. v. Department of Corrections, was filed, challenging the Department's latest proposed rule 33-3.02(6).

   Since the new rule challenge to proposed rule 33-3.02(6) prevents the adoption of that rule until the case is resolved, and since the previous emergency rule, 33ER 84-1, expires June 19, 1984, it is again necessary for the Department to adopt an emergency rule. Without such action the Department would be without an effective rule concerning inmate hair length and shaving, and inmates would be able to grow beards and mustaches, thus frustrating the need of correctional staff to identify them easily, and jeopardizing the welfare of the public.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Rule 33ER 84-4 provides in pertinent part:

    
    

    (b) Male inmates shall have their hair cut short to medium length at all times with

    no part of the ear or collar covered. Sideburns shall not extend beyond the bottom of the earlobes and will have straight lines with no flare et the base. All male inmates shall be clean shaven, provided, however, that an exemption from this requirement may be granted on the basis of a medical diagnosis when it is determined by the staff physician that shaving would be detrimental to the inmate's health. Inmates granted a medical exemption from the shaving requirement may be required to keep their facial heir closely trimmed with scissors or clippers. For the purposes of this rule

    `closely trimmed' means trimmed so that no part of the facial hair exceeds the length prescribed by the physician as necessary to prevent the appearance or reappearance of skin disorders. If no specific length is prescribed, then facial hair shall be kept trimmed to within one-quarter inch.

    
    

11. An Amendment to Section 120.54(9)(c), Florida Statutes, which took effect June 11, 1984, authorizes renewal of emergency rules for additional 90- day periods when a proposed rule to replace the emergency rule is under challenge. In the previous cases above-cited which involved the predecessors to Rule 33ER 84-4, the necessity for the emergency rule was litigated and is now res judicata and this issue will not again be revisited.

    
    

12. While this tribunal does not have jurisdiction to determine that Rule

    33 ER 84-4 is unconstitutional, it is well settled that prison authorities are within their constitutional rights in requiring healthy inmates to forego beards and long hair. Hill v. Estelle, 537 F.2d 214 (5th Cir. 1976). The issue has been decided with reference specifically to the Florida penal system. Brooks v. Wainwright, 419 F.2d 1376 (5th Cir. 1970).

    
    

13. Petitioners' contention that the rule is invalid because it is vague and overbroad is without merit. These Petitioners specifically contend that those provisions of the rule relating to length of hair are vague. To the contrary, short to medium length is defined in the rule to mean the hair will cover no part of the ear or collar. This definition is specific and clearly describes the maximum length to which an inmate may allow his hair to grow.

    
    

14. Likewise, the length of facial hair for those granted medical exemption from having to be clean shaven allows the medical problem to determine the length of facial hair and, if not so designated by the attending physician, to be no longer than one-quarter inch. This, too, is specific and clearly understandable.

    
    

15. From the foregoing it is concluded that mule 33 ER 54-4 incorporates all those provisions determined to be valid in Ridley and Redman, supra, has provided the medical exemption found lacking in Ridley, supra, and specifically addressed the permitted length of hair with well-defined limits found lacking in Redman, supra.

Based on the foregoing, it is

ORDERED that the Petition to invalidate Rule 33 ER 84-4 be, and hereby is, DENIED.

DONE AND ORDERED this 30th 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 30th day of August, 1984.

COPIES FURNISHED:

Hector Leon, Jr. Vernon Vaugh Douglas L. Adams Joe Lewis Holland Joseph Redman

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Catherine Lannon, Esquire Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

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

Tallahassee, Florida 32301

Louie L. Wainwright, Secretary Department of Corrections

1311 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 84-002603RX

Orders for Case No: 84-002603RX