STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERNELL HADLEY, JACKIE B. BLEVINS, ) SAMUEL MOORE and DOUGLAS ADAMS, )

)

Petitioners, )

)

vs. ) CASE NO. 86-1097RX

) DEPARTMENT OF CORRECTIONS, STATE ) OF FLORIDA, )

)

Respondent. )

)

FINAL ORDER

Consistent with the Notice of Hearing furnished to the parties by the undersigned on April 15, 1986, a hearing was held in this case at the Union Correctional Institution, Raiford, Florida, on May 8, 1986, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings. The issue for consideration was whether Respondent's enforcement of an unwritten policy which requires the signature of an inmate for the receipt of legal mail on a Form DC3-321 interferes with the timely delivery of mail and constitutes a rule under Section 120.52(15), Florida Statutes, and an unauthorized exercise of delegated legislative authority.

APPEARANCES

For the Petitioner: Douglas L. Adams

Qualified Representative

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

For the Respondent: Julia P. Forrester, Esquire

Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301

BACKGROUND INFORMATION

On March 30, 1986, the four Petitioners herein submitted a Petition to Determine the Invalidity of Existing Rules relating to Respondents' enforcement of an unwritten policy statement requiring the signature of an inmate on Form DC3-321 prior to the receipt of legal mail. Petitioners contend that the policy statement and the form constitute an invalid exercise of delegated legislative authority. The petition was forwarded to the Division of Administrative Hearings For the appointment of a Hearing Officer and on April 9, 1986, the Director of the Division of Administrative Hearings assigned the case to the undersigned for hearing. On April 15, 1986, the Notice of Hearing was executed by the undersigned, and on April 17, 1986, the four Petitioners moved to have

Douglas Adams serve as representative for them at the hearing. This permission was granted by the undersigned by Order dated April 22, 1986. On May 1, 1986, the Respondent filed a Motion To Dismiss the Petition alleging that the rule challenge was not a proper method for attacking the Respondent's operating procedure; that Petitioners failed to allege any substantial interest which was affected by the use of the form; and that the use of the form does not constitute an unauthorized rule. This motion was reiterated at the hearing and was denied by the undersigned. At the hearing, Petitioner presented the testimony of Fred Combs, a Corrections Officer at UCI; Jackie B. Blevins, an inmate and one of the Petitioners; Marcia A. Douglas, a Corrections Officer at UCI, and a mailroom employee at that facility; Augustus H. Harrison, Administrative Lieutenant at UCI; Carl V. Cribbs, Clayton Way, Jack Phillips, Aldrian Cook, Samuel Moore, and Douglas Laverne Adams, all inmates at Union Correctional Institute; and Milton R. Hicks, an employee of the institution.

Petitioner also introduced Petitioners' Exhibits 1 through 6. Respondent recalled Mr. Harrison previously presented by the Petitioner to testify on behalf of the Respondent and presented no documentary evidence.

Subsequent to the hearing, both parties submitted Proposed Recommended Orders which contain proposed findings of fact. These proposals have been thoroughly considered and evaluated by the undersigned in the preparation of this Final Order. A specific ruling as to each is contained in the Appendix attached hereto.

FINDINGS OF FACT

1. Petitioners Jackie B. Blevins, Samuel Moore and Douglas Adams are currently inmates at Union Correctional Institution (UCI), receive mail through the institution's administrative system which operates the mailroom and have each experienced delays in receiving legal or privileged mail at the institution. The fourth Petitioner, Vernell Hadley, was an inmate at the institution when the Petition was filed. However, prior to the hearing, he accepted a voluntary transfer from UCI, was not present at the hearing, and presented no evidence on his own behalf.

   
   

2. The Department of Corrections operates 79 separate institutions for the incarceration of inmates in the State of Florida. Operation of the Department mailrooms is controlled by Rule 33-3.005, Florida Administrative Code. Institutions within the Department of Corrections, however, may apply the procedures of that rule in different ways. At the Reception and Medical Center, for example, privileged mail is logged on a form and the inmate is issued a pass to go to the mailroom where he thereafter signs for the item. At UCI, prior to September of 1985, privileged mail was delivered to the inmate in his respective housing area subject only to the opening of all routine mail.

   
   

3. In September, 1985, however, due to an increase in the amount of cash and money orders entering the institution through legal and privileged mail, the UCI staff was reminded of the inspection provision contained in Rule 33-3.005. This resulted in an increased scrutiny of legal and privileged mail for awhile.

   
   

4. By memo dated March 10, 1986, to all institution superintendents, the Assistant Secretary of Operations for DOC, Mr. Harry K. Singletary, mandated use of the Form DC3-321, for the logging of all inmate legal mail and the requirement for the inmate to come to the mailroom to sign for it. Under this new procedure when legal mail is received at the institution, a "call-out" is issued for the inmate who has mail of this nature in the mailroom. The call-out is furnished to the inmate who is required to come to the mailroom and sign for

   the document. Call-outs are issued on the day the mail is received and generally reached the inmate the following day. The inmate may, on the day he receives the call-out, report to the mailroom to receive his mail. In the event of some delay in the inmate reporting, an additional call-out is issued the following day. There are some delays built into the system in that the mailroom is not open on a 24-hour per day, 7 day a week basis, and if a call out is received by an inmate too late in the day for him to pick up his mail immediately because the mailroom by then is closed, he must wait until the following day to receive it. Inmates who are not in the general population such as those who are in isolation in the hospital or undergoing some form of disciplinary or administrative confinement, receive their legal and privileged mail the day it is received at UCI because it is delivered to them by a corrections officer.

   
   

5. For a short time after the publication of Mr. Singletary's memo, mailroom personnel at UCI improperly construed the terms of the memo by opening legal and privileged mail in the presence of the inmate regardless of whether contraband was expected. Until that time, under the provisions of Rule 33- 3.005, even legal and privileged mail could be opened by institution personnel in the presence of the inmate if it was suspected to contain contraband. The improper practice of opening legal and privileged mail regardless of a suspicion of contraband was ceased on April 29, 1986, however, by the supervisor of the mailroom staff. Since that time, legal and privileged mail has been handled strictly in accordance with the provisions of Rule 33-3.005.

   
   

6. Besides authorizing the opening of even legal and privileged mail suspected of containing contraband or other improper materials, the rule provides for the holding of this type of mail for a reasonable time to allow institution personnel to verify the sender or the addressee. Bona fide legal and privileged mail which does not require verification or which is not suspected of containing contraband should be delivered "without delay." It is clearly the intent of the rule to ensure that inmate mail classified as legal or privileged mail is delivered with the least possible delay. Petitioners contend that the use of the Form DC3-321 which requires the inmate to come to the mailroom to sign for his mail constitutes an unreasonable delay since, as was stated previously, it is a common occurrence that the inmate cannot report to the mailroom the same day the "call-out" is issued because of his work schedule or the duty schedule within the mail room. Since under the prior procedure, legal mail was delivered generally the day received, to the inmates' quarters area, the inmates consider the additional delay now inherent in the system because of the use of the form constitutes a delay.

   
   

7. Petitioners contend that the intervening weekend hiatus between a Friday issued call-out and a Monday receipt constitutes an unreasonable delay. Petitioners contend that legal mail, having its origin in such agencies as the courts or other governmental bodies, requires prompt delivery without delay and petitioners indicated that on some occasions delays experienced in the delivery of legal mail have resulted in adverse consequences in judicial proceedings involving them.

   
   

8. An overnight delay is generally not an unreasonable delay. Even the delay over a weekend cannot be considered unreasonable inasmuch as the post office which services UCI is closed from noon on Saturday to Monday morning. Mail picked up on Saturday is sorted by the institution mailroom and call-outs issued on Monday. Mail received on Friday results in call-outs issued that date with pickups by the inmate generally the following Monday. The UCI mailroom is staffed and funded for a 5-day work week identical with the majority of other

   administrative positions at the institution. Money and positions are not provided by the Legislature or the Department for a 7 day per week staffing of mail personnel at any of the penal institutions in this State.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

   
   

10. Legal and privileged mail at Union Correctional Institute is currently being processed in strict compliance with provisions of Rule 33-3.005, Florida Administrative Code. The utilization of Form DC3-321 consistent with the memorandum from Mr. Singletary dated March 10, 1986, does not constitute a rule under the Administrative Procedures Act. The rule as described above, provides for the expeditious delivery of certain categories of mail and provides for the method of its treatment. The use of the form as directed by Mr. Singletary is a discretionary function well within the parameters of agency discretion and is neither arbitrary nor capricious. It is no more than a refinement of a rule- established procedure designed to enhance rather than hinder the intent and purpose of the rule.

    
    

11. To challenge an agency's interpretation of its own rule, a party must show that that interpretation is clearly erroneous, and it is well established that an agency's interpretation of its own rules should be given defference. Good Samaritan Hospital, Inc. vs. HRS, 11 FLW 741 (Fla. 4th DCA), opinion rendered April 4, 1986).

    
    

12. Here, in directing the use of Form DC3-321 to require inmates to sign for legal and privileged mail, the agency is interpreting the terms of its Rule 33-3.005, Florida Administrative Code, which prohibits the unreasonable delay in the delivery of legal and privileged mail. Since the agency is required to safeguard and ensure the delivery to the appropriate inmate of his mail, it is not at all unreasonable for the agency to develop an internal management practice designed to promote those ends so long as these management actions do not generate an unreasonable delay so as to redound to the detriment of the inmate and his ability to pursue his legal rights and remedies. It is clear that the requirement here does not improperly transcend these boundaries. If an unreasonable delay is caused from time to time, it is the proper subject for a grievance rather than rule challenge.

    
    

13. Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore

ORDERED that the Petition to Determine the Invalidity of Existing Rules filed in this case is hereby dismissed.

DONE and ORDERED this 10th day of June, 1986, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 10th day of June, 1986.

APPENDIX TO FINAL ORDER, CASE NO. 86-1097RX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER

1. Incorporated in Finding of Fact 2.

2. Incorporated in Finding of Fact 2.

3. Incorporated in Finding of Fact 3.

4. Incorporated in Finding of Fact 7.

5. Incorporated in Finding of Fact 4.

6. Incorporated in Finding of Fact 8 with the exception of the finding that there is no corrective remedy to prevent delays.

7. Incorporated in Finding of Fact 2.

RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT

COPIES FURNISHED:

Louie L. Wainwright Secretary

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Louis A. Vargas General Counsel

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Julia P. Forrester, Esquire Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301

Vernell Hadley Jackie B. Blevins Samuel Moore Douglas Adams

Union Correctional Institution

P. O. Box 221

Raiford, Florida 32083

Liz Cloud Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 86-001097RX

Orders for Case No: 86-001097RX