STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS H. WALKER, )

)

Petitioner, )

and )

) KEITH RICHARD HARRIS and JEFFERY ) BELLAMY, )

) CASE NO. 84-2923RX

Intervenors, )

)

vs. )

)

DEPARTMENT CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

This case was heard pursuant to notice on April 17, 1985, in Lake Correctional Institution by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon a petition filed by several inmates challenging the Orientation Handbook provided the inmates.

Between the commencement of this proceeding and the final hearing, several of the original petitioners were transferred to other institutions and several other inmates were permitted to intervene. The style of the case above reflects the parties as of the time the case was heard.

APPEARANCES

For Petitioner: Thomas H. Walker, Pro Se

For Intervenors: Keith Richard Harris, Pro Se

Jeffery Bellamy, Pro Se

For Respondent: John J. Rimes

Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301 ISSUES

The issue in this rules case was whether the Orientation Handbook constituted an invalid exercise of delegated legislative authority by the agency because it had not been adopted as a rule but was the basis of disciplinary action against inmates.

The facts revealed that the Orientation Handbook is a compendium of regulatory guidelines from the statutes and rules. It is commonly referred to and cited in disciplinary reports; however, it is a secondary source and no evidence was received that any of its provisions were not based upon adopted rules or statutes.

FINDINGS OF FACT

1. Exhibit A is the Orientation Handbook (Handbook) for Lake Correctional Institution published in June 1980 by the Department of Corrections. Its first page reflects that it will be updated annually or as deemed necessary by the administration of the institution. A copy of this book is issued to every inmate.

   
   

2. Inmates are disciplined for violating the mandates set forth in the Handbook; however, the Handbook by its own terms is a compendium of the statutes, rules, and regulations. It is subject to amendment by official memorandum posted on dormitory bulletin boards. Some of the regulations and rules set forth in the Handbook have been amended or stricken by the Department of Corrections. The Handbook no longer lists all of the existing infractions and certain of the infractions listed are no longer applicable. The Handbook states that the rules and regulations change from time to time and that it is the inmates' responsibility to check to see what the existing rules are.

   
   

3. Thomas Hayes, DC# 053503, was given a corrective consultation for failing to stockade his mattress on his bunk. Paragraph 9 on Page 3 of the Handbook requires that inmates stockade their bunks. A source is not stated on the Handbook for this requirement to stockade bunks. Superintendent Staggers stated the authority for the requirement was Rule 33-3.01, Florida Administrative Code, and opined that it was a reasonable requirement related to health and welfare of inmates.

   
   

4. Evidence was received regarding disciplinary action against Kevin Knight, DC# 094150, who was placed on Disciplinary Report for having a $5.00 bill in his possession when returning from the visiting area. Knight had not reported, as required, that he had the money in his possession when he entered the visiting are, and a search of Knight when he entered the area did not reveal the money. Possession of money (or negotiables) is prohibited. See Paragraphs 3-8, page 8 of the Handbook. The source of this prohibition is Section 944.47, Florida Statutes.

   
   

5. Evidence was received that the inmates could not get free postage to mail pleadings to the Division of Administrative Hearings relating to this case. No reference to the Handbook was referenced by petitioners. Petitioner's Exhibit D is the applicable memorandum regarding Legal Mail implementing Rule

1. 3.05, Florida Administrative Code. It limits Legal Mail to mail to or from:

   
   

   1. municipality, city, state & federal courts

   2. state attorneys

   3. private attorneys

   4. public defenders

1. Hearing Officers of the Division of Administrative Hearings are not state attorneys, private attorneys, public defenders and the Division of Administrative Hearings is not a court.

2. Evidence was received that there was not a specific source to which inmates and staff could refer to determine exactly what rules were operative. See testimony of Thomas Hayes DC# 053503.

   
   

3. Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

4. This order is entered pursuant to Section 120.56, Florida Statutes. The issue is whether the Handbook is a rule which was not properly promulgated and therefore is an invalid exercise of delegated legislative authority.

   
   

5. The Petitioners have standing as inmates subject to the rules and regulations of the Department of Corrections. The Handbook is a collection of regulatory guidance for prisoners from various sources. It is a secondary reference source not a primary source of regulation. The facts presented reveal that the Handbook is generally such a source, although out of date. However, the Handbook addresses the fact that it may become out of date, warns prisoners of that fact, and places the burden on them to determine from primary sources what the rules are. It is disturbing to note that they were unable to obtain a definitive answer regarding a purported change in T.V. rules because there is no definitive primary source for institutional rules. However, the incident in question is not probative of the issue presented of whether the Handbook is a duly promulgated rule.

The Handbook was not shown to be an invalid exercise of delegated legislative authority because the Petitioners did not show a provision of the handbook which was a primary source of regulation. The Petition is therefore denied.

DONE and ORDERED this 22nd day of May, 1985, in Tallahassee, Florida.

STEPHEN F. DEAN

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 22nd day of May, 1985.

COPIES FURNISHED:

Keith Richard Harris #635563

Post Office Box 99-190

Lake Correctional Institution Clermont, Florida 32711

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

Tallahassee, Florida 32301

John J. Rimes, III, Esquire Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Thomas H. Walker 034805

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711

Jeffery Bellamy Post Office Box 99

Lake Correctional Institution Clermont, Florida 32711

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

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Docket for Case No: 84-002923RX

Orders for Case No: 84-002923RX