DOUGLAS M. JACKSON, )
vs. ) CASE NO. 87-1730RX
Respondent. )
For Petitioner: Richard A. Belz, Esquire
For Respondent: Benjamin E. Poitevent, Esquire
By Petition For Administrative Determination filed with the Division of Administrative Hearings on April 23, 1987, the Petitioner seeks an administrative determination pursuant to Section 120.56, Florida Statutes, that Rule 33-3.007, Florida Administrative Code, is an invalid exercise of delegated legislative authority. By Order Of Assignment dated April 30, 1987, the case was assigned to Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. By agreement of the parties, the case was scheduled for formal hearing at Tallahassee, Florida, on May 27, 1987.
On May 22, 1987, the parties filed a Prehearing Stipulation and a Joint Motion To Cancel Final Hearing And To Decide The Issues On The Basis Of Proposed Final Orders. The Prehearing Stipulation contains a recitation of facts that are admitted by both parties and also states that there are no material facts in dispute between the parties. Accordingly, by order issued May 26, 1987, the joint motion described above was granted, the formal hearing in this case was cancelled, and the parties were given 20 days within which to file proposed final orders. Thereafter, both parties filed timely proposed final orders and the case was submitted to the Hearing Officer for determination on the basis of the facts admitted by both parties.
I find the following facts based on the facts admitted by both parties in the Prehearing Stipulation filed on May 22, 1987.
Florida Administrative Code Chapter 33, as found in the Florida Administrative Code Annotated, through the March 1987 supplement, is true and correct.
The Petitioner's current address is Douglas M. Jackson, Inmate Number 823916, Florida State Prison, Post Office Box 747, Starke, Florida 32091.
The Respondent's name and address is Florida Department of Corrections, 1311 Winewood Boulevard, Tallahassee, Florida 32399-2500.
The Department rule on which an administrative determination is sought is Florida Administrative Code Rule 33-3.007, "Inmate Grievance Procedure."
The statutory provision on which the above Department rule is based is Section 944.331, Florida Statutes, which states:
The department shall establish by rule an inmate grievance procedure which shall conform to the Minimum Standards for Inmate Grievance Procedures as promulgated by the United States Department of Justice pursuant to 42 U.S.C. s. 1997e.
The ten (10) days in Florida Administrative Code Rule 33-3.007(13), which deals with the filing of appeals of grievances, are "10 calendar days." This can include two weekends (a total of four days) when mail is not normally picked up at the prisons or delivered in the Office of the Secretary.
If an inmate receives his institutional response on a Friday that is dated for the previous day (Thursday), his response must be received in Tallahassee by the following Friday. (The second Sunday following would be ten
(10) days from the date of the institutional grievance, but the Central Office Inmate Grievance Administrator does not work on Saturday or Sunday to receive and log inmate grievance appeals).
Florida Administrative Code Rules 33-3.007(6)(a) and (7) require the availability of grievance forms at all Department institutions. If the inmate needs a day to obtain a grievance appeal form and prepare it, he will not be able to mail his appeal until Sunday. But, there is no mail service on Sunday so his grievance appeal will not be mailed until Monday at the earliest.
This means the grievance appeal must get from the prison to the Office of the Secretary in four (4) days or it will be denied as out-of-time.
Florida Administrative Code Rule 33-3.007(8) provides that:
An extension of the 15-day period [to file at the institutional level] will be granted when it is clearly demonstrated by the inmate to the satisfaction of the Superintendent or Assistant Superintendent that it was not feasible to file the grievance within the 15- day period.
Florida Administrative Code Rule 33-3.007(15), which covers the filing of the grievance appeal, imposes an absolute requirement of ten (10) calendar days. No possibility exists under the rule, as promulgated, for the slightest extension of time for any possible reason, no matter how meritorious it might be.
Florida Administrative Code Rule 33-3.007 does not inform the inmate that he must utilize the grievance procedure to exhaust his administrative remedies before he can file a petition for writ of habeas corpus, challenging the loss of gain time or confinement as a result of a disciplinary proceeding.
Florida Administrative Code Rule 33-3.007 has been submitted to the United States Department of Justice for certification approval under the provisions of Section 944.331, Florida Statutes and 42 U.S.C. s. 1997e.
Florida Administrative Code Rules 33-3.0025(11)(c), 33-3.012(1)(b)3, 33-3.012(4)(e), and Florida Administrative Code Chapter 33-22 have not been submitted to the United States Department of Justice for certification approval.
CONCLUSIONS OF LAW
Based on the foregoing facts and on the applicable legal principles, I make the following conclusions of law.
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sec. 120.56, Fla. Stat.
The Petitioner is substantially affected by Rule 33-3.007, Florida Administrative Code, and has standing to seek an administrative determination as to its invalidity on the ground that it is an invalid exercise of delegated legislative authority.
Section 944.331, Florida Statutes, requires the Department to: establish by rule an inmate grievance
procedure which shall conform to the Minimum Standards for Inmate Grievance Procedures as promulgated by the United States Department of Justice pursuant to 42 U.S.C. s. 1997e.
Rule 33-3.007, Florida Administrative Code, implements Section 944.331, Florida Statutes.
Petitioner is not challenging the validity of any rule other than Rule 33-3.007, Florida Administrative Code.
In their Prehearing Stipulation filed on May 22, 1987, the parties itemized 18 separately stated issues of law remaining to be determined by the Hearing Officer. (See pp. 5-6 of the stipulation.) Upon careful examination of the issues of law itemized by the parties, it appears that a number of them are matters involving facts, or inferences to be drawn from the facts, and that some of the stated issues are subparts of others. In general, the challenges which have been lodged against the rule are couched in terms of the rule being arbitrary, capricious, excessive, and not authorized by, or inconsistent with, the implemented statute. The Petitioner's specific legal contentions, as narrowed in the Petitioner's Proposed Final Order, may be Summarized as follows:
(1) that Rule 33-3.007(7)(a), Florida Administrative Code, is invalid for failure to inform inmates that they may seek assistance from an attorney; (2) that Rule 33-3.007(13), Florida Administrative Code, is invalid because the ten- day period provided in that rule is too short a period within which to actually file a grievance appeal in the Office of the Secretary in Tallahassee by mail and it is arbitrary and capricious to allow an extension of time for filing grievances at the institutional level, but not to include such an extension period for appeals to the Secretary; (3) that the failure of the subject rule to inform inmates that they must utilize the grievance procedure before they can file a court challenge to Department action or inaction deprives inmates of the due process of law and is arbitrary and capricious; and (4) that Rule 33-3.007
is invalid because there is more than one Department rule which bears on the grievance procedure and because the other rules which bear on the grievance procedure have not been submitted to the United States Department of Justice for certification approval.
General Observations On The Nature Of Rule Challenge Proceedings
In considering these challenges to Rule 33-3.007, Florida Administrative Code, the decision of Agrico Chemical Company v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979) cert. denied, 376 So.2d 74 (Fla. 1979), shows it is the challenger of the rule who must bear the burden of proof by a preponderance of the evidence. Agrico further identifies Section 120.54(4), Florida Statutes, as contemplating the ability to examine whether the rule is an invalid exercise of delegated legislative authority, as well as whether the rule is arbitrary or capricious. See also Humana, Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985); Department of Natural Resources v. Sailfish Club of Florida, Inc., 473 So.2d 261 (Fla. 1st DCA 1985). The same standard of review is applicable to challenges to existing rules under Section 120.56, Florida Statutes. Florida Waterworks Association v. Florida Public Service Commission, 473 So.2d 237, 240 (Fla. 1st DCA 1985). A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic. Agrico, supra, at 763.
The validity of rules normally will be sustained as long as they are reasonably related to the purposes of the enabling legislation and are not arbitrary or capricious. Florida Beverage Corporation v. Wynne, 306 So.2d 200,
202 (Fla. 1st DCA 1975); Agrico Chemical Company v. State, Department of Environmental Regulation, supra; Jax's Liquors, Inc. v. Division of Alcoholic Beverages and Tobacco, et al., 388 So.2d 1306 (Fla. 1st DCA 1980); Grove Isle, Ltd. v. State, Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984). As stated in Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515, 517 (Fla. 1st DCA 1984):
The well recognized general rule is that agencies are to be accorded wide discretion in the exercise of their lawful rulemaking, clearly conferred or fairly implied and consistent with the agencies' general statutory duties. Florida Commission on Human Relations v. Human Development Center, 413 So.2d 1251 (Fla. 1st DCA 1982). An
agency's construction of the statute it administers is entitled to great weight and is not to be overturned unless clearly erroneous. Pan American World Airways, Inc. Florida Public Service Commission, 427
So.2d 716 (Fla. 1983); Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983). Where, as here, the agency's interpretation of a statute has been promulgated in rulemaking proceedings, the validity of such rule must be upheld if it is reasonably related to the purposes of the legislation interpreted and it is not arbitrary and capricious. The burden is upon
petitioner in a rule challenge to show by a preponderance of the evidence that the rule or its requirements are arbitrary and capricious. Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978); Florida Beverage Corp. v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975). Moreover, the agency's interpretation of a statute need not be the sole possible interpretation or even the most desirable one; it need only be within the range of possible interpretations
Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937 (Fla. 1st DCA 1983)(Ervin, D.J., dissenting); Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982); Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981) [emphasis in original].
Respondent promulgated Rule 33-3.007, Florida Administrative Code, under the statutory authority of Section 944.331, Florida Statutes.
Assistance from an attorney
Rule 33-3.007(7)(a), Florida Administrative Code, informs inmates that they may "seek assistance from other inmates or staff members in completing the forms as long as the assistance requested does not interfere with the security and order of the institution," but does not inform inmates that they have a right to seek assistance from an attorney. Citing the well-known legal maxim, inclusio unius est exclusio alterius, the Petitioner argues that the failure to inform an inmate he may seek assistance from an attorney implies that seeking such attorney assistance is prohibited. The argument continues with an assertion that the right to seek assistance from an attorney is guaranteed by Section 454.11, Florida Statutes, and by Article I, Sections 2 and 9, of our Florida Constitution. The argument concludes with the contention that prohibiting such attorney assistance is arbitrary and capricious because only the Supreme Court of Florida can regulate the practice of law (i.e., the right to seek legal assistance). See Art. V, Sec. 15, Fla. Const. For the reasons which follow, the arguments fail.
Dealing first with so much of the argument as is predicated on constitutional rights, it is first noted that the constitutional provisions cited by the Petitioner do not appear to support a contention that inmates are entitled to assistance from attorneys in the presentation of their grievance forms. And, in any event, even if it were to be shown that there were facial conflicts between those constitutional provisions and the language of the challenged rule, resolution of any such conflicts is beyond the scope of the authority of a Hearing Officer of the Division of Administrative Hearings. It is well settled that Hearing Officers may not invalidate existing rules on the basis of constitutional infirmity.
The statute relied upon by the Petitioner also fails to support his argument. That statute, Section 454.11, Florida Statutes, sets forth certain rights of attorneys; it does not address the rights of those who seek the services of attorneys. Specifically, the cited statute neither states nor
implies that inmates have the right to the services of attorneys in the preparation of their grievance forms. It is also noted that the Petitioner has failed to cite any authority to support the contention that inmates are entitled to attorney assistance in the preparation of their grievance forms. Absent the existence of such a right, the failure of the rule to mention that inmates may seek something to which they have no right i a failure which is innocuous, irrelevant, and without legal significance. In sum, as noted in the Respondent's proposed conclusions of law:
It is not arbitrary or capricious for Respondent to promulgate a rule which does not include specific mention of a right of an inmate to seek "assistance" of an attorney in conjunction with a disciplinary proceeding when no such right exists.
The ten-day time limit
The Petitioner's entire contention on the issue of the unreasonableness of the ten-day limit for filing grievance appeals reads as follows (at paragraphs 9 and 10 of the Petitioner's proposed conclusions of law):
The ten (10) days in Fla. Admin. Code
Rule 33-3.007(13) is too short to actually file the grievance appeal in the Office of the Secretary in Tallahassee by mail, since only four days may exist for mailing in some cases. Findings of Fact numbers 6 thru 9, supra. The Supreme Court of Florida has recognized that 5 days is a reasonable period for service of all documents by mail. Fla.
R. Civ. P. 1.090(e).
The absolute and draconian requirement of ten (10) days in Fla. Admin. Code Rules 33- 3.007(13) and (15) to actually file the grievance appeal in Tallahassee, with no possibility for an extension of time, is arbitrary and capricious. This is especially so since the Department permits an extension of time in which to file the institutional level grievance when the facts justify such an extension.
The first, and perhaps most significant, problem with the Petitioner's contentions in this regard is that the alleged problem with the rule is hypothetical and speculative rather than real and actual. Facially the ten-day period for filing a grievance appeal is a reasonable period of time, even allowing for intervening Saturdays and Sundays when mail service is not available. Accordingly, the ten-day limit for such filing can only be shown to be unreasonable (and thus invalid) if there is a showing that in actual practice it has proved to be unworkable; i.e., that try as they might to expeditiously file their grievance appeals, inmates have had their grievance appeals rejected because the grievance appeals were delayed in the mail. The facts in this case
do not show that any inmate has ever had a grievance appeal denied because it was not received by the Secretary with four days of the date on which it was mailed.
As part of the argument against the ten-day time limit (which the facts show may in some circumstances allow only four days for mailing) reliance is placed on Fla. R. Civ. P. 1.090(e), which allows five days for mailing. Without question, five days is a reasonable period to allow for mailing--but it is not the only reasonable period. See Fla. R. Crim. P. 3.070 and Rule 22I- 6.02, both of which allow three days for mailing. For the foregoing reasons, it is concluded that the ten-day period established by Rule 33-3.007(13) is reasonable and is not arbitrary or capricious.
The failure to warn of consequences
The essence of the Petitioner's contentions on this point is that the challenged rule fails to inform inmates that they must fully and completely utilize the grievance procedure to exhaust their administrative remedies before they can file a court challenge to Department action or inaction. This failure is asserted to be a deprivation of due process and, therefore, arbitrary and capricious. This argument fails largely because it fails to take into account the purpose of the rule.
The purpose of the rule is to provide inmates with an opportunity to attempt to resolve problems administratively through a grievance procedure. The rule appears to reasonably accomplish that purpose. It is not the purpose of the rule to provide inmates with a summary of the law regarding access to the courts as affected by failure to exhaust administrative remedies. While it would appear to be permissible for the rule to contain gratuitous comments on the subject of exhaustion of remedies, the rule is not deficient for failure to include such comments.
Only one rule and it must be certified
In dealing with this final contention of the Petitioner it is helpful to once again look closely at the language of Section 944.331, Florida Statutes, which reads as follows:
The department shall establish by rule an inmate grievance procedure which shall conform to the Minimum Standards for Inmate Grievance Procedures as promulgated by the United States Department of Justice pursuant to 42 U.S.C. s. 1997e. (emphasis added)
The Petitioner argues that the challenged rule departs from the foregoing statutory mandate in two regards: first, because there are rules other than Rule 33-3.007 which deal with the grievance procedure and, second, because those other rules have not been submitted to the United States Department of Justice for certification approval pursuant to 42 U.S.C. s. 1997e. The Petitioner's underlying thesis is that the legislative intent expressed in Section 944.331, Florida Statutes, requires that there be only one rule establishing an inmate grievance procedure and that the one rule must be submitted for certification approval. It is well-settled that the best source of the legislative intent is in the actual words of the statute. Hanley v. Liberty Mutual Insurance Company,
323 So.2d 301 (Fla. 3d DCA 1975). Similarly, it is stated in Gough v. State ex rel. Sauls, 55 So.2d 111 (Fla. 1951), that:
It is a well established rule of statutory construction that the language of a statute may be so plain as to fix the legislative intent and leave no room for construction. If the statute is plain and unambiguous and admits of but one meaning, the courts in construing it will not be justified in
departing from the plain and natural language employed by the Legislature.
See also Harper v. State, 217 So.2d 591 (Fla. 4th DCA 1969), and Brooks v. Anastasia Mosquito Control District, 148 So.2d 64 (Fla. 2d DCA 1963), from which we learn that "it must be assumed that the Legislature of this state must know the plain and ordinary meaning of words..." To similar effect is the following from Florida State Racing Commission v. McLaughlin, 102 So.2d 74 (Fla. 1958):
[T]he Legislature is conclusively presumed to have a working knowledge of the English language and when a statute has been drafted in such manner as to clearly convey a specific meaning the only proper function of the Court is to effectuate this legislative intent.
When Section 944.331, Florida Statutes, is examined in light of the rules of construction Summarized above, it is clear that the interpretation to be given to the statute is different from that urged by the Petitioner. First, the statute requires that "an inmate grievance procedure" be established "by rule." While it might be argued that the statutory language by implication requires that there be only one grievance procedure, nothing in the plain language of the statute requires that every provision regarding the grievance procedure be in the same rule. Thus, the fact that rules other than Rule 33-
3.007 contain provisions related to the grievance procedure does not run afoul of the statutory mandate.
With regard to the contention that Section 944.331, Florida Statutes, must be submitted for certification approval by the United States Department of Justice, it is first noted that neither the word "certification" nor the word "approval" appears in the statute. The statute merely required that the grievance procedure "conform" to certain standards. There is no requirement that such conformance be certified by anyone. Thus, the fact that some of the rules related to the grievance procedure have not been submitted for certification approval does not cause the grievance procedure to be at odds with the statute.
That the Petitioner has failed to demonstrate that Rule 33-3.007, Florida Administrative Code, is an invalid exercise of delegated legislative authority. Therefore, the relief requested by the Petitioner is hereby denied and the Petition For Administrative Determination is hereby dismissed.
DONE AND ORDERED this 27th day of July, 1987, at Tallahassee, Florida.
MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1987.
Richard A. Belz, Esquire Florida Institutional Legal
Services, Inc.
Ben Poitevent, Esquire Assistant Attorney General Department of Legal Affairs Suite 1602, The Capitol Tallahassee, Florida 32301
Louis A. Vargas General Counsel
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 THE 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 WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
